Rajasthan High Court
Raghuveer And Others vs Raju Lal on 23 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 192/2016
1. Raghuveer S/o Shri Angad Adopted S/o Shri Sonya
2. Halkey S/o Shri Angad
3. Sonya S/o Shri Kishan Lal.
All are resident of Mamchari, Teh. And Distt. Karauli (Raj.)
----Appellants
Versus
1. Raju Lal S/o Shri Bhajan Lal, R/o Mamchari, Teh. And
Distt. Karauli Raj.
Respondent-Plaintiff
2. Angad S/o Shri Kishan Lal, R/o Mamchari Teh. And Distt.
Karauli Raj. (As Angad Has Been Passed Away Prior To
Filing The Second Appeal)
--Performa--Respondent
For Appellant(s) : Mr. Atul Bhardwaj for
Mr. Arvind Sharma
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
23/03/2022
The second appeal arises out of civil suit filed way back on
19.12.2001 and this second appeal is pending at admission stage
since 2016.
Previous order-sheets reveal that counsel for the appellants
has taken adjournment for number of times, hence the prayer for
adjournment is declined.
Heard the counsel for appellant for admission.
(2 of 4) [CSA-192/2016]
By way of this second appeal, appellants-defendants has
challenged the judgment and decree dated 20.10.2011 passed in
civil suit No. 107/2003 (247/2001) by the court of Civil Judge (Sr.
Division), Karauli, which has been affirmed in first appeal vide
judgment dated 10.03.2016.
It appears from record that the respondent-plaintiff filed a
civil suit for permanent injunction claiming his ownership and
possession over an area of 70X70 Sq. Ft. situated at village
Mamchari, Tehsil and District Karauli. It was averred by the
plaintiff that defendants are interfering in his possession and
threatened to dispossess the plaintiff, hence the civil suit was led
against defendants.
Defendants submitted written statements denying
ownership and possession of plaintiff on the basis of patta dated
19.05.1982 of the Gram Panchayat, Kota, is illegal and was
issued contrary to the Gram Panchayat Rules of 1961.
Defendants contended that the plaintiff wants to encroach
upon the suit land through which defendant has his passage to
have access to their houses. Defendants also led counter-claim
against the plaintiff to remove his encroachment over 20' wide
way.
Learned trial court, according to the rival pleadings of both
parties, settled the issue and recorded evidence of both parties.
In evidence, it has come on record that plaintiff is having old
possession in form of thrashed roof hut over an area of 20' X 13'.
It was found that defendants also could not deny the possession
of plaintiff over such area.
(3 of 4) [CSA-192/2016]
The claim of defendants for the way was not found proved
by any evidence, rather it was observed that defendants do not
have any nexus with the property in question.
The trial court, in view of the evidence on record that
plaintiff is having his old possession and his hut with hatched roof
over an area of 20' X 13' is available there, passed the decree for
injunction for not removing the possession of plaintiff and not to
cause any disturbance in use of occupation of her portion. The
Counter-claim of defendants was dismissed.
Defendants assailed the judgment and decree of trial court
dated 20.10.2011 by way of filing first appeal. The first appellate
court, vide judgment dated 10.03.2016, re-considered the
evidence of both parties.
Appellant also produced certain additional documents along
with an application under Order 41 Rule 27 CPC, which were also
considered by the first appellate court.
The first appellate court affirmed the findings of fact
recorded by the trial court and observed that it is not established
that any passage/way is there in the lands in question.
Since the possession of plaintiff was remained indisputed
fact, therefore, the first appellate court affirmed the judgment
and decree of trial court.
The two courts of fact findings have recorded the findings
about the possession of plaintiff over an area of 20' X 13' and
accordingly, has protected his possession by way of passing a
decree for permanent injunction. The trial court has not given
any findings about the ownership of plaintiff. As far as, the claim
of appellants-defendants in relation to the land in question is
(4 of 4) [CSA-192/2016]
concerned, there is no evidence to support their right. Findings of
fact are duly based on appreciation of evidence available on
record.
At the stage of second appeal, re-appreciation of evidence,
in order to reach a different conclusion other than reached by
two courts below is not permissible. No infirmity, illegality or
perversity have been pointed out in the findings of fact recorded
by two courts below. No substantial question of law is found
involved in this second appeal.
Accordingly, the same is not liable to be entertained and is
hereby dismissed. There is no order as to costs.
Stay application and any other application(s) if any, also
stand(s) dismissed.
Record of courts below be sent back.
(SUDESH BANSAL),J
TN/2
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