Rajasthan High Court
Modu Ram And Another vs Mahavir And Others on 28 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.326/2012
1. Maduram S/o Bhopalram, Ward No.12, Khetri Distt.
Jhunjhunu
2. Mst. Santra Devi W/o Maduram, Ward No.12, Khetri Distt.
Jhunjhunu
----Appellants
Versus
1. Mahavir S/o Prabhuram Mali, Khetri Distt. Jhunjhunu
2. Kurdaram S/o Mohbataram Mali, Khetri Distt. Jhunjhunu
3. Narainram S/o Mullaram Mali, Khetri Distt. Jhunjhunu
4. Ishwar Adopted S/o Gopalram Mali, Khetri Distt.
Jhunjhunu
5. Noranglal S/o Sundaram Mali, Khetri Distt. Jhunjhunu
6. Bajrang S/o Gomaram Kumhar, Khetri Distt. Jhunjhunu
7. Malraim S/o Bhomaram Kumhar, Khetri Distt. Jhunjhunu
8. Mangalchand S/o Guguram Mali, Khetri Distt. Jhunjhunu
9. Jagdish S/o Hanuman Mali, Khetri Distt. Jhunjhunu
10. Leeladhar S/o Mungaram Mali, Khetri Distt. Jhunjhunu
11. Kishorilal S/o Not Known, Khetri Distt. Jhunjhunu
12. Nagar Palika Khetri Through Executive Officer, Nagar
Palika Khetri, Distt. Jhunjhunu
13. Chairman, Nagar Palika Khetri, Distt. Jhunjhunu
----Respondents
For Appellant(s) : Ms. Shashi Awasthi for
Mr. Manoj Avasthi
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
28/03/2022
1. By way of this second appeal appellants-plaintiffs have
assailed the judgment and decree dated 17.05.2007 passed in
(2 of 5) [CSA-326/2012]
Civil Suit No.103/1998 passed by Court of Civil Judge (JD) Khetri,
Jhunjhunu whereby their civil suit for permanent injunction was
dismissed which has been affirmed in first appeal No.15/2007 vide
impugned judgment dated 19.03.2012 passed by Court of
Additional District Judge Khetri.
2. This second appeal is pending at admission stage since
13.07.2012.
3. Previous order-sheets of this second appeal go to show that
counsel for appellants has asked for adjournment time and again.
On last date of hearing i.e. 11.03.2022 counsel for appellants also
sought time to seek instructions/contact his clients.
4. Today again a request for adjournment has been made,
which is declined.
5. The relevant facts of present case as culled out from the
record are that appellants-plaintiffs claimed their ownership and
possession over the suit property part of Khasra No.3294
measuring 0.48 hectare of abadi land at Ward No.12, town Khetri,
District Jhunjhunu. It was alleged that plaintiffs were in possession
of the said property, for which the Tehsildar issued notices under
Section 91 of the Land Revenue Act however, since the property
was in abadi, the notices under Section 91 of Land Revenue Act
were cancelled on 12.10.1990 and the possession of appellants
remained intact. It was alleged that appellants applied for
regularization of their possession and issuance of patta from the
Nagar Palika and proceedings are pending. It was alleged that
since the private respondents are inclined to dispossess the
plaintiffs and not allowing to raise construction, therefore, a
decree for permanent injunction be issued. The suit was initially
filed on 07.08.1998.
(3 of 5) [CSA-326/2012]
6. The private respondents-defendants submitted joint written
statement contending that the property in question is government
land for use of public at large and does not belong to plaintiffs.
Thereafter, respondent-defendant Nos.12 and 13 Nagar Palika,
Khetri were also made party in the present suit. Nagar Palika filed
written statement that plaintiffs do not have any possession over
the property in question and the land of Khasra No.3294
measuring 0.48 hectare is recorded as gair mumkin abadi land of
Nagar Palika. The proceedings for issuance of patta initiated by
plaintiffs have already been decided and application of plaintiffs
for regularization has been dismissed. During course of inquiry, it
was found on the sight inspection that plaintiffs have no legal or
substantive right over the land in question and have encroached
upon the land of Nagar Palika. On the defence of Nagar Palike, two
additional issues were also framed.
7. The learned trial court settled the issues and recorded
evidence of both parties.
8. As per the evidence on record and on its appreciation, trial
court found that the land in question is nazul land of Nagar Palika.
Plaintiffs' possession over the land in question was found to be
hardly 8-10 years old and not the possession since ancestrals. It
was observed that suit was filed in the year 1998 and against
plaintiffs, proceedings of dispossession were initiated in 1990. It
was observed that there is no substantive evidence on record to
show the old and settled possession of plaintiffs over the land in
question and their application for issuance of patta/regularization
has already been dismissed by Nagar Palika. The proceedings for
regularization on file No.926/1992 before Nagar Palika were
placed on record. Thus, the trial court on appreciation of oral and
(4 of 5) [CSA-326/2012]
documentary evidence concluded that plaintiffs have no ownership
rights and his case of possessory title was disbelieved.
Accordingly, their civil suit for permanent injunction was dismissed
vide judgment dated 17.05.2007.
9. Appellants-plaintiffs challenged the judgment and decree
dated 17.05.2007 by way of filing first appeal. The first appellate
court re-considered the pleadings and evidence on record and on
re-appreciation of entire material on record, affirmed the findings
of the trial court and dismissed the first appeal vide judgment
dated 19.03.2012. The first appellate court on facts and law of the
first appeal found the fist appeal devoid of merits and exercised its
jurisdiction within parameters of law.
10. Against concurrent findings of fact and dismissal of the suit
for permanent injunction, appellants-plaintiffs have preferred this
second appeal.
11. From perusal of impugned judgments, it appears that
Courts below have come to a concurrent finding that plaintiffs
have miserably failed to substantiate and prove their possessory
right over the disputed plot, rather they have found to be
encroached upon the suit plot. The first appellate court also found
the first appeal to be devoid of merits. Consequently, the dismissal
of suit by the trial court was upheld by first appellate court.
Counsel for plaintiffs has not been able to point out any perversity
or make out any substantial question of law in respect of the
judgments passed by the trial court and also the first appellate
court. Findings of fact recorded by two courts below are based on
appreciation of evidence.
12. The Hon'ble Supreme Court in the case of Kondiba Dagadu
Kadam v. Savitribai Sopan Gujjar reported in [(1999) 3 SCC
(5 of 5) [CSA-326/2012]
722], Pakeerappa Rai Vs. Seethamma Hengsu Dead by Lrs.
And Ors. reported in [(2001) 9 SCC 521] and Thulasidhara &
Anr. vs. Narayanappa & Ors. reported in [(2019) 6 SCC 409]
has held that the concurrent findings of fact even if erroneous
cannot be disturbed by the High Court in exercise of the powers
under section 100 CPC unless suffers from perversity and infirmity
which leads to manifest injustice are based on no evidence or
inadmissible piece of evidence. This proposition is well established.
Findings of fact based on appreciation of evidence are the province
of the trail court and the first appellate court. Hence, this court
finds that there is no substantial question of law involved and this
Court is not inclined to entertain this second appeal and the same
is dismissed.
13. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J
SAURABH/1
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