Smt Indro Bai And Anr vs Panchayat Samiti Kishangarhbas ...
2022 Latest Caselaw 2568 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Second Appeal No. 746/2017

1.      Smt. Indro Bai W/o Late Gyanchand, R/o Gram Kithur,
        Teh. Alwar Sub-Teh. Bahadarpur, Distt. Alwar
2.      Jeetraj S/o Late Gyanchand, R/o Gram Kithur, Teh. Alwar
        Sub-Teh. Bahadarpur, Distt. Alwar
                                                      ----Appellants-Plaintiffs
                                   Versus
1.      Panchayat Samiti Kishangarhbas, Distt. Alwar Through
        Administrator,       Standing        Samiti,        Panchayat   Samiti
        Kishangarhbas, Distt. Alwar
2.      Gram Panchayat Kithur, Administrator, Gram Panchayat
        Kithur, Panchayat Samiti Kishangarhbas, Distt. Alwar
3.      Dalmeer Khan S/o Dhotali, R/o Gram Kithur, Teh. Alwar
        Sub-Teh. Bahadarpur, Distt. Alwar
                                               ----Respondents-Defendants

For Appellant(s)         :     Mr. Anil Yadav
                               Mr. N.S. Chaudhary
For Respondent(s)        :



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

28/03/2022

1. Appellant-plaintiffs (hereinafter referred as "plaintiffs") have

preferred this second appeal under Section 100 CPC, assailing

judgment and decree dated 26.9.2017 in Appeal No.15/2006,

passed by Additional District Judge, No.2, Alwar dismissing appeal

and affirming the judgment and decree dated 27.1.2006 passed

by Additional Civil Judge (Junior Division) No.3, Alwar in Civil Suit

No.184/1997 (148/1994) whereby plaintiff's suit for declaration

and permanent injunction has been dismissed.

(2 of 4) [CSA-746/2017]

2. The facts of case are that plaintiff No.1 and her husband

were refugees who came from Pakistan at the time of partition

and they were rehabilitated in village Kithur on a land shown in

map annexed to plaint and they in possession of the said land

since 1947. Plaintiffs claimed ownership and possessory title.

Plaintiffs submitted that an application for permission of house on

a land southern side of disputed land was filed before defendant

No.2 Gram Panchayat Kithur, who vide order dated 20-7-1989

granted permission. Against the said permission defendant No.3

Dalmeer Khan filed appeal before Panchayat Samiti

Kishangarhbas, who vide order dated 7-11-1990 directed plaintiffs

to be evicted from land in question for permission was granted.

Revision petition thereagainst before the Assistant Collector Alwar

was also dismissed. Plaintiffs claimed that the land in question was

not a part of road nor used by public as road and plaintiffs were in

possession of the said land. Since the private defendant No.3 was

adament to evict plaintiffs from land in question therefore the suit

for declaration and permanent injunction was filed.

3. The defendants despite several opportunities failed to file

written statement therefore the said opportunity was closed. The

trial Court recorded evidence of both parties. Plaintiffs examined

five witnesses and defendants examined two witnesses. The trial

Court after appreciation of evidence on record concluded that the

as per site plan submitted by plaintiffs to prove allotment of land

to them indicates that the road shown in map by green colour

appears to be encroached upon by plaintiff as at the place of their

house road becomes narrow and plaintiffs' houses are situated on

both sides of road. Further Gram Panchayat's order for permission

(3 of 4) [CSA-746/2017]

of construction was dismissed by higher authorities and which

order has attained finality. As such plaintiffs failed to prove their

possessory title over the land in issue. Consequently the plaintiff's

suit was dismissed vide judgment dated 27-1-2006, which

judgment has been affirmed by the first appellate court. Hence,

this second appeal.

4. Heard learned counsel for plaintiffs and perused impugned

judgments passed by the trial court as affirmed by the first

appellate court, as also record of the case.

5. A perusal of the impugned judgments and decrees indicates

that the courts below have come to a concurrent finding that the

plaintiff has miserably failed to produce and prove their

possessory title over the land of road and that they encroached

upon land road. The appellate court also found the first appeal to

be devoid of merits. Consequently the dismissal of the suit by the

trial court was upheld by the appellate court. Counsel for the

plaintiffs have not been able to prove their possessory title over

the land in issue or point out any perversity or make out any

substantial question of law in respect of the judgments and

decrees passed by the trial court as also the appellate court. The

conclusions of the courts below are based on findings of fact. The

Hon'ble Supreme Court in the case of Kondiba Dagadu Kadam

Vs. Savitribai Sopan Gujar [(1999)3 SCC 722] has held that

the concurrent findings of facts even if erroneous cannot be

disturbed by the High Court in exercise of the powers under

section 100 CPC. This proposition is well established. Findings of

fact based on appreciation of evidence are the province of the trial

court and the first appellate court.

(4 of 4) [CSA-746/2017]

6. Consequently, the second appeal is without any force and the

same stands dismissed.

7. Stay application and any other pending application(s), if any,

also stand(s) disposed of.

8. Record of courts below be sent back forthwith.

(SUDESH BANSAL),J

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