Rajasthan High Court
Surya Prakash Nogia vs Saurat Mal Sunariwal on 29 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 132/2013
Surya Prakash Nogia S/o Shri Raksukh, Khanpura, Post Hmt
Ajmer Raj.
----Appellant
Versus
Saurot Mal Sunariwal S/o Sugna Kucheel Recently R/o C/o House
Of Shri Nemi Chand Sunriwal, Sunder Nagar Khanpura, Ajmer
Raj.
----Respondent
For Appellant(s) : Mr. H.C. Mourya
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
29/03/2022
1. This second appeal has been filed by appellant-plaintiff
(hereinafter "plaintiff"), assailing judgment and decree dated
22.09.2009 passed by Civil Judge, Ajmer in suit No.14/05
whereby suit for permanent injunction has been dismissed, which
has been affirmed by dismissing first appeal No.59/2011 vide
judgment dated 12.02.2013 passed by Additional District Judge
No.3, Ajmer. Plaintiff is claiming a decree for permanent injunction
in relation to a plot measuring 50X36 out of his total land
measuring 3 Bigha 14 Biswa at village Khanpura District Ajmer.
2. Plaintiff has initially filed a civil suit seeking permanent
injunction against private respondent on 18.02.2005, alleging
inter alia that over the plot in question, respondent-defendant
(hereinafter "defendant") is not allowing plaintiff to raise
construction and creating hindrance/obstructions in use and
(2 of 4) [CSA-132/2013]
occupation, therefore, defendant be restrained by way of
permanent injunction. The trial Court examined plaintiff's right
over plot in question and found that plaintiff could not prove his
possession over the plot in issue. It was also concluded that
plaintiff has admitted that out of his total land measuring 3 Bigha
and 14 Biswa, leaving an area of 2000 square meter remaining
area is recorded as Government land. It has been concluded that
plaintiff himself admitted in his cross-examination that out of land
an area of 2000 square meter, plaintiff has sold 10 plots of 200
square yards each. Thus, it was concluded that plaintiff does not
possess any portion of land out of his land of Khasra No.32
measuring 3 Bigha 14 Biswa after selling out plot of his land, he
has wrongly filed civil suit for permanent injunction. In absence of
any right and possession, the trial Court dismissed plaintiff's suit
vide judgment and decree dated 22.09.2009.
3. Plaintiff challenged judgment and decree dated 22.09.2009,
by way of first appeal, and sought to produce certain documents
by filing an application under Order 41 Rule 27 CPC to produce
sale deed and other documents to show that land measuring 3
Bigha 14 Biswa was purchased by him through registered sale
deed in the year 1964. The First Appellate Court observed that
firstly additional documents are not relevant to show possession
over the area of 50X36 feet, in view of admission of plaintiff
himself. Secondly there is no justified reason for not producing
these documents before the trial Court. Plaintiff was not found
vigilant in producing documents. Accordingly, application under
Order 41 Rule 27 was considered and dismissed while deciding
first appeal itself. The first Appellate Court re-heard the plaintiff
and reconsidered entire material available on record and
(3 of 4) [CSA-132/2013]
concluded that plaintiff had already sold his land by carving out
plots therein, accordingly, findings of fact, recorded by the trial
Court, were affirmed judgment and decree dated 22.09.2009 was
upheld vide judgment dated 12.02.2013.
4. Counsel for plaintiff submits that two Courts below have
committed perversity in dismissing civil suit for permanent
injunction, the land in question was a purchased land of plaintiff
and he has ownership right and possession over the same,
therefore, decree for permanent injunction ought to have been
passed in favour of plaintiff.
5. Having heard counsel for plaintiff and perused judgments
and material on record, this Court finds that two Courts below
have recorded a fact finding that land measuring 3 Bigha 14 Biswa
at village Khanpur, Ajmer have been recorded as Government
land, leaving apart an area of 2000 sqaure meter. Both Courts
below have recorded findings of fact that an area of 2000 square
meter left with plaintiff has already been sold by him by carving
out plots to different persons. Such findings are based on
admission of plaintiff himself, as also supported with other
evidence.
6. Counsel for plaintiff could not pointed out any infirmity,
illegality or perversity in such fact findings. In case of Kondiba
Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC
722] and catena of other judgments passed in case of
Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [(2001) 9
SCC 521], Thulasidhara & Anr. Vs. Narayanappa & Ors.,
[(2019) 6 SCC 409], Bholaram Vs. Ameerchand, [(1981) 2
SCC 414], Ishwar Das Jain Vs. Sohan Lal, [(2000) 1 SCC
434] and State of Madhya Pradesh Vs. Sabal Singh & Ors.,
(4 of 4) [CSA-132/2013]
[(2019) 10 SCC 595], has categorically held that at the stage of
second appeal, fact findings recorded by two Courts below, based
on appreciation of evidence, should be honoured and must not be
interfered with unless and until there is some perversity, illegality
or jurisdictional error which leads manifest injustice. Once findings
of fact recorded by two Courts below are justified and based on
due appreciation of evidence, re-appreciation of evidence at the
stage of second appeal in order to draw a different conclusion is
not warranted. The scope of second appeal is confined to examine
substantial question of law, which are sine qua non to exercise
powers under Section 100 of CPC.
7. In present case, on appreciation of findings of fact, which
suffers from no perversity, no question of law arises, in absence of
any substantial question of law, this second appeal is not liable to
be entertained and same is hereby dismissed.
8. Stay application and all pending application(s), if any, also
stand disposed of.
9. Record of both the Courts below be sent back forthwith.
10. There is no order as to costs.
(SUDESH BANSAL),J
NITIN /2
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