Rajasthan High Court
Narayan Dutt And Others vs Jagdish And Others on 28 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 38/2014
1. Narayan Dutt S/on of shri Chandrabhan (since deceased)
through his legal representatives:-
1/1 Smt. Sushila Devi W/o Late Shri Narayan Dutt.
1/2 Narendra Tyagi S/o Late Shri Narayan Dutt.
1/3 Nawal Singh Tyagi S/o Late Shri Narayan Dutt.
1/4 Shriniwas Tyagi S/on of Late Shri Narayan Dutt.
1/5 Chaturbhuj Tyagi S/o of Late Shri Narayan Dutt.
All resident of Village Luhari, Tehsil and District Dholpur (Raj.)
2. Gayitri Widow of Shri Sarnam Singh.
3. Hakim Singh S/o Shri Sarnam Singh
4. Mukesh S/o Shri Sarnam Singh
All resident of Village Luhari, Tehsil and District Dholpur
----Appellants-Plaintiffs
Versus
1. Jagdish
2. Rambharosi
3. Nadariya
4. Pohap Singh
5. Rajveer Singh
All sons of Phoopsingh @ Babu Lal
6. Bhoop Singh S/o Shri Mohan Lal.
All resident of Village Luhari, Tehsil and District Dholpur (Raj.)
----Respondents- Defendants
For Appellant(s) : Mr. Dushyant Jain for
Mr. Anil Jain
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
28/03/2022
Appellants-plaintiffs, by way of this second appeal, assailing
the concurrent findings of fact recorded by two courts below in
(2 of 3) [CSA-38/2014]
relation to denying the permanent injunction for the way/passage
in question.
The plaintiffs brought a civil suit for permanent injunction
claiming for having access to their land of Khasra No.1156, there
is a way/passage through the land of Khasra No.1154 and 255 at
Village Luhari, Dholpur. Defendants declined the existence of such
way/passage and alleged that plaintiffs have an alternate way
through the land of Khasra No.1962 to have access their land of
Khasra No.1156.
The trial court recorded evidence of both parties and on
appreciation of evidence recorded a finding of fact that in revenue
record, no such way/passage as alleged by plaintiffs exists. The
trial court also recorded a finding of fact that plaintiffs have
neither asked for relief of easementary right of declaration nor
have pleaded that this is the only way/passage to have access to
their land. The alternative way, suggested by defendants through
the land of Khasra No.1962 was not declined. The trial court also
considered that plaintiffs' evidence falls short to show the
existence of such way/passage at site and his right to easement
through that way/passage. The trial court dismissed the suit vide
judgments and decree dated 20.12.2010.
Plaintiffs filed civil first appeal their against. The first
appellate court re-heard the matter and reappreciate the evidence
on record. The first appellate court recorded a finding that by
perusal of the site Commissioner report and map appended there
with, plaintiff's case for claiming a way/passage in between the
land of Khasra No.1154 and 255 is not corroborated. The appellate
court affirmed findings of trial court.
(3 of 3) [CSA-38/2014]
This court finds that two courts have recorded findings of
fact, they are duly based on the appreciation of evidence available
on record.
Learned counsel for appellants has argued that the surveyor
report was also produced on record but has not been considered.
On examination of the record, it transpires that there is no
surveyor report on record but it is the report of Court
Commissioner, which is available on record. Report of Court
Commissioner has already been taken into consideration and
appreciated by the first appellate court. In the present case, this
court finds that there is no cogent and convincing evidence of
plaintiffs to show the existence of way/passage there nor their
pleadings to claim their easementary right by way of
necessity/prescription over such way. Due to lack of pleadings of
evidence the courts below have dismissed the prayer of plaintiffs'
for injunction. This court do not find any illegality, infirmity or
perversity in the findings recorded by courts below, no substantial
questions of law have been involved in the given facts and
circumstances of the case, in absence of substantial questions of
law, the second appeal cannot be accepted.
Accordingly, the second appeal is hereby dismissed.
Stay application and any other pending application(s), if any,
stand(s) disposed of.
(SUDESH BANSAL),J
TN/2
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