Rajasthan High Court
Bhanwar Lal Sharma And Another vs Banwari And Others on 21 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 71/2016
1. Bhanwar Lal Sharma S/o Shri Manna Ram, aged around 73
years,
2. Omprakash S/o Gumana Ram, aged around 54 years,
Both are resident of Village Ravasa, Tehsil Dantaramgarh,
District Sikar (Raj.)
----Appellant
Versus
1. Banwari S/o Gulla Ram
2. Mangal Chand S/o Gulla Ram
3. Ratan Lal S/o Gulla Ram
4. Gangali w/o Gulla Ram,
5. Gulla Ram S/o Shri Ram Nath, (deleted since died)
All resident of Village Ravasa, Tehsil, Dantaramgarh, District
Sikar (Raj.)
6. Mahant Shri Raghavacharya, Jankinath Bada Mandir, Ravasa,
Tehsil Dantaramgarh, District Sikar (Raj.)
Defendant-Respondents
7. Jagdish Prasad S/o Shri Bholu Ram Saini,
8. Rughnath S/o Shri Bodu Ram Saini,
9. Mahaveer Prasad S/o Nanu Ram Saini,
10. Chaju Ram S/o Shri Baldevaram,
11. Bodu Ram S/o Shri Chunni Lal Balai,
All resident of Village Ravasa, Tehsil, Dantaramgarh, District
Sikar (Raj.)
--Plaintiff-Performa-Respondents
For Appellant(s) : Mr. Kamal Kumar Mathur
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
21/03/2022
Appellants-plaintiffs have preferred this second appeal
assailing the judgment and decree dated 28.10.2010 passed in
(2 of 4) [CSA-71/2016]
civil suit No.125/2000 by Civil Judge (Sr. Division) Dataramgarh,
Sikar, which has been affirmed in the first appeal No.71/2010 vide
judgment and decree dated 26.10.2015 by the Court of Additional
District Judge No.2, Sikar.
It appears from record that appellants-plaintiffs filed a
representative suit for seeking permanent and mandatory
injunction in relation to the land in question. The appellants
claimed the land in question to be of land of pond-phokhar-Johra
and of public utility land.
Appellants claimed easementary right over such land.
Respondents-plaintiffs denied the case of appellants and
contended that the property in question is trust property, which
was given to the respondent-defendant Nos.1 to 5 by the Trust.
The averments in relation to nature of land being pond-phokhar-
Johra as also having any easementary right of plaintiffs were
categorically denied.
Learned trial court on the basis of rival pleadings of both
parties, settled issues and recorded evidence of both parties.
Appellants could not produce any cogent and convincing evidence
either of the revenue record or by any other substantive evidence
to show the nature of property in question as of pond-phokhar-
Johra. Appellants could not clarify as to what nature of
easementary right, they are claiming over the land in question.
Due to lack of evidence of the appellants, the trial court dismissed
the civil suit. The trial court also considered that the present civil
suit was brought in the representative capacity by the appellants
and compliance of the procedure as provided under Order 1 Rule 8
CPC was not made.
(3 of 4) [CSA-71/2016]
Appellants assailed the judgment of trial court dated
28.10.2010 by way of filing first appeal. The first appellate court
has affirmed the judgment taking note of fact that where the
pleadings of plaint are not proved by any sufficient evidence,
appellants have not followed the procedure of law to bring the civil
suit in representative capacity.
Learned counsel for appellants submits that both courts have
committed jurisdictional error in dismissing the appellants' suit
merely on the ground that procedure prescribed under Order 1
Rule 8 CPC filed by representative's suit was not followed. He has
argued that procedure is not mandatory, when the representative
suit is filed in relation to a public land. Learned counsel has placed
reliance upon the judgment of Hon'ble the Supreme Court in the
case of Hari Ram Vs. Jyoti Prasad & Anr.2011 DNJ (SC) 310.
Heard learned for appellant and perused the impugned
judgments.
In the present case, appellants have not produced any
sufficient evidence on record to show that the land in question is
land of pond-phokhar-Johra. If the land in question is recorded as
the land of pond-phokhar-Johra, the revenue record could have
been produced to substantiate the fact. Mere oral statement of
one or two witness are not suffice to prove any nature of land as
the land of pond-phokhar-Johra. The trial court as well as
appellate court have categorically observed that due to lack of
sufficient evidence, the appellants' suit is not liable to be decreed.
The ratio of law as propounded in the case of Hari Ram (Supra) by
the Supreme Court has no more res integra, the same is not
applicable to the present case since the appellants have miserably
(4 of 4) [CSA-71/2016]
failed to prove that the land in question was of public utility land
or it was of in the nature of pond-phokhar-Johra.
This court finds that findings recorded by the trial court has
affirmed by the first appellate court are duly based on
appreciation of evidence available on record.
In the second appeal within scope of Section 100 CPC, re-
appreciation of evidence to come on a different conclusion then
drawn by two courts below is not permissible. Learned counsel for
appellants could not point out any illegality/perversity or
jurisdictional error, misreading in impugned findings and
judgments. There is no substantial question of law involved in the
present second appeal, hence the same cannot be entertained.
Accordingly, the second appeal is dismissed.
Stay application and any other pending application(s), if
any, also stand(s) disposed of.
(SUDESH BANSAL),J
TN/67
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