Rajasthan High Court
Narayan Son Of Shri Pyare vs Shri Amar Singh Son Of Shri Mallu ... on 30 June, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7854/2022
1. Narayan Son Of Shri Pyare,
2. Dallo Son Of Shri Narayan,
3. Radha Wife Of Shri Dallo,
All are R/o Village Gurira, Tehsil Kaman, District Bharatpur
(Rajasthan).
----Petitioners/Defendants
Versus
1. Shri Amar Singh Son Of Shri Mallu Ram,
2. Shri Dharam Singh Son Of Shri Mallu Ram, ]
Both are R/o Village Gurira, Tehsil Kaman, District Bharatpur
(Rajasthan).
----Respondents/Plaintiffs
For Petitioner(s) : Mr. Raj Kumar Goyal
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
30/06/2022
This writ petition under Article 227 of the Constitution of India
has been filed assailing the legality and validity of the judgement and
decree dated 15.12.2021 passed by learned Additional District Judge,
Kaman, District Bharatpur whereby, the Civil First Appeal No.13/2013
(CIS No.13/2013, CNR No.RJBH2A0000672013) preferred by the
respondents-plaintiffs, has partly been allowed and the judgment
and decree dated 20.09.2013 passed by learned Nyayadhikari, Gram
Nyayalaya, District Bharatpur dismissing the suit No.252/2011
(36/2011), has been reversed.
The facts in brief are that the respondents/plaintiffs filed a suit
for permanent injunction qua a piece of land situated in Village
Gurira, Tehsil Kaman, District Bharatpur claiming the same to be
(2 of 4) [CW-7854/2022]
under their possession since centuries, being used for their residence
as also for other sundry purposes. It was alleged that the defendants
were trying to interfere with their peaceful possession and hence, a
decree of permanent injunction was prayed for. The defendants in
their written statement submitted that the land in question was part
of Khasra No.226 min which was purchased by the defendant No.3
through a registered sale deed from its erstwhile Khatedar Roopsingh
and was under their possession. It was stated that in a revenue suit
filed by them against the plaintiffs and their family members, they
were restrained by the decree of permanent injunction from
interfering with land of Khasra No.226 min under their possession by
the Court of SDO, Kaman vide its judgement dated 30.03.2012.
The suit filed by the respondents was dismissed by the Court of
Nyayadhikari, Kaman vide its judgment and decree dated 20.09.2013
which was successfully challenged by them by way of a first appeal
which has partly been allowed by the learned Additional District
Judge vide its judgment and decree dated 15.12.2021.
Assailing the impugned judgement and decree, learned counsel
for the petitioners contended that the learned appellate Court erred
in recording a finding that the plaintiffs and their witnesses were not
subjected to cross-examination qua their possession over the land in
question; whereas, it was so done. Drawing attention of this Court
towards the cross-examination of PW4, Roop Singh, the erstwhile
Khatedar of the land in question, learned counsel submitted that he
has admitted therein that he has sold one bigha of land out of Khasra
No.226 min to the defendant No.3 who was in its possession. He
contended that the learned appellate Court did not appreciate that
there was a decree of permanent injunction against the respondents
by a competent Revenue Court qua the subject land. Relying on a
(3 of 4) [CW-7854/2022]
judgment of Hon'ble Apex Court of India in the case of Anathula
Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs. & Ors.; (2008) 4
SCC 594, learned counsel canvassed that a suit simplicitor for
permanent injunction in absence of declaration of title was not
maintainable. He, therefore, prayed that the writ petition be allowed
and the judgement and decree dated 15.12.2021 be quashed and set
aside.
Heard. Considered.
The learned appellate Court has recorded a finding that while
the plaintiffs as PW1 & PW2 respectively have categorically stated in
their examination-in-chief that they were in possession of the subject
land since the time of their forefathers; but, they were not subjected
to any cross-examination on this aspect by the appellants-
defendants during the course of their cross-examination. Similarly,
other plaintiff witnesses who have made similar statements, were
also not cross-examined on this aspect. This Court after going
through their cross-examination, concurs with the findings of the
learned appellate Court. It is trite law that if a witness is not
subjected to cross-examination on vital aspect of the matter having
material bearing on the issue, his statement in the examination-in-
chief is deemed to be admitted by the other party. In these
circumstances, this Court does not find any perversity or illegality in
the findings recorded by the learned appellate Court.
The learned appellate Court has also recorded a finding which
is duly supported by the material on record that the defendants could
not establish that the subject land was part of Khasra No.226 min as
claimed by them. In this view of the matter, the decree of permanent
injunction in their favour by a Revenue Court qua the land of Khasra
No.226 min is of no assistance.
(4 of 4) [CW-7854/2022]
Submission of learned counsel for the appellants that the suit
for permanent injunction simplicitor is not maintainable in absence of
a decree for title, is wholly misconceived and deserves to be rejected
in the facts and circumstances of the case. Suit of the plaintiffs was
based on their possessory title over the land in question which was
claimed by the defendants to be under their ownership being part of
Khasra No.226 min which they have miserably failed to establish. It
is well-established from the material on record that the plaintiffs
were in peaceful and settled possession of the subject land over
which the defendants had no title. In these circumstances, the
judgment of Hon'ble Apex Court of India in the case of Anathula
Sudhakar (supra) is of no assistance to the petitioners.
This Court finds that the judgement dated 15.12.2021 is well
reasoned, based on cogent material on record and suffers from no
patent jurisdictional error or perversity warranting interference of
this Court under its limited supervisory jurisdiction vide Article 227 of
the Constitution of India.
Resultantly, the writ petition is dismissed being devoid of merit.
(MAHENDAR KUMAR GOYAL),J
PRAGATI/s-150
Powered by TCPDF (www.tcpdf.org)
