Rajasthan High Court
Maya Devi And Another vs Ashok Kumar And Another on 23 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 240/2016
1. Maya Devi W/o Shri Narottam Lal., R/o Sainath Khidkia,
Karauli.
2. Narottam S/o Shri Durga Lal, R/o Sainath Khidkia,
Karauli.
----Appellants
Versus
1. Ashok Kumar, S/o Laxmi Narain, R/o Bhoodara Bazar,
Karauli.
2. Dinesh Kumar, S/o Laxmi Narain, R/o Bhoodara Bazar,
Karauli.
----Respondents
For Appellant(s) : Mr. J.P. Goyal senior counsel with Ms.
Jyoti Swami
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
23/03/2022
By way of this second appeal, appellants-defendants have
assailed the judgment and decree dated 26/3/2012 whereby and
whereunder while decreeing the civil suit for permanent injunction
filed by the respondents-plaintiffs, the following decree has been
passed:-
"vr% oknhx.k dk nkok ckcr~ LFkkbZ fu"ks/kkKk fo:) izfroknhx.k
vkSj gVk;s tkus rkehj Lohdkj fd;k tkdj vkns'k fn;k tkrk gS fd
fookfnr jkLrk , ch lh Mh ij izfroknhx.k [kqyklk djsaA tks Hkh
fuekZ.k dk;Z , ch lh Mh LFkku ij fd;k x;k gS mls vius [kpsZ ls
gVkosa vkSj Hkfo"; esa , ch lh Mh LFkku ij dksbZ fuekZ.k dk;Z ugha
djsa vkSj jkLrs dks vo:) ugha djsaA [kpkZ eqdnek i{kdkjku viuk
viuk ogu djsaxsA ipkZ fMdzh fu;ekuqlkj cuk;k tkosaA"
(2 of 4) [CSA-240/2016]
Appellants-defendants assailed the judgment and decree
dated 26/3/2012 by way of filing first appeal. The first appellate
court vide judgment dated 20/5/2016 has affirmed the decree of
trial court. Hence, against the concurrent finding of fact, instant
second appeal has been filed.
On perusal of the record of this case, it appears that
plaintiffs are having possession over plot no. 8 and the
dependents are having possession over plot no. 3 and 4. The site
map showing the location of three plots goes to show that there is
passage of 10 feet wide between the plot no. 3-4 and 8. The
plaintiffs filed a civil suit for permanent injunction claiming inter
alia that the plot no. 8 was purchased by his predecessors through
registered sale deed on 4/8/1989. With this sale deed, site map is
appended wherein this way of 10 feet wide has been shown.
Thereafter, defendants wanted to close this passage/way and
raised some temporary construction, hence, the present suit was
led by the plaintiffs to maintain the passage/way open and
unobstructed. Defendants filed written statement contending that
the portion of this passage/way which is situated between their
two plots i.e. plot no. 3 and 4 they have purchased this portion
from the owner through two agreements exhibit A-3 and A-4
dated 26/3/1992.
On the basis of two agreements, defendants claimed that
they have acquired ownership over the portion of this
passage/way and have raised construction of their pillar and other
construction. Defendants claimed that plaintiffs have no right to
claim the defendant's land as a passage more particularly, when
no suit for declaration of passage has been filed.
(3 of 4) [CSA-240/2016]
Learned trial court, according to the rival pleadings of the
both parties, settled issues and recorded evidence, the site report
was also called by appointment a court Commissioner who
submitted the site inspection report. The actual position at site is
not in dispute between the parties that over the passage/way,
some construction in form of pillars is available. The passage of 10
feet wide exists between the plot no. 3, 4 and 8. The trial court
has relied upon the sale deed dated 4/8/89 (exhibit-1) and the
map appended with the sale deed (exhibit-2) in order to conclude
this passage/way was available at site, before execution of the
agreements dated 26/3/1992 in favour of the defendants. The trial
court has also observed that the agreements (exhibit A-3 and A-
4), relied upon by the defendants are neither registered nor
sufficiently stamped and cannot be treated as an admissible
evidence in order to confirm the ownership rights of the
defendants over the land in question.
On appreciation of documentary evidence as well as oral
statements of parties and after considering the site commissioner
report, the trial court passed the decree dated 26/3/2012 to
maintain the passage open and unobstructed. The passage in
question has been shown by ABCD in the map appended with the
plot. The decree passed by the trial court is based on appreciation
of evidence and same may not be treated as suffered by any
misreading/non-reading of evidence or perverse in any manner.
Moreover, the findings and judgment of trial court have been
affirmed by the first appellate court.
The Hon'ble Supreme Court in the case of Umerkhan vs.
Bismillabi reported in [(2011) 9 SCC 684] has categorically
observed that while exercising the powers under Section 100, the
(4 of 4) [CSA-240/2016]
re-appreciation of evidence is not permissible. Unless and until,
there is any perversity, infirmity or material irregularity which
leads to miscarriage of justice is pointed out, the concurrent
findings of fact should not be interfere with. In the present case,
the two courts of fact findings have passed the impugned decree
in relation to maintaining the passage/way which exists between
the houses of plaintiffs' and defendants. Since the impugned
judgment and decree are based on appreciation of evidence and
do not suffer from any perversity nor leads to any miscarriage of
justice to either of parties, this court is not inclined to entertain
this second appeal.
In the facts and circumstances of the case, no substantial
question of law is found involved in this second appeal.
Accordingly, the same cannot be entertained for admission
and hence, the appeal stands dismissed at this stage.
Stay application and any other pending application(s), if any,
stand(s) disposed of.
Record of courts below is returned back to the court.
(SUDESH BANSAL),J
ANIL SHARMA /3
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