Rajasthan High Court
Smt Prem Devi vs P D Agarwal And Ors on 29 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 2/2017
Smt Prem Devi
----Appellant
Versus
P D Agarwal And Ors.
----Respondents
For Appellant(s) : Mr. Saransh Saini
For Respondent(s) : Mr. Mohammed Anees with
Mr. Kishan Lal Saraswat
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
29/03/2022
This second appeal has been filed by appellant-plaintiff
against the judgment and decree dated 16.04.2010 by Additional
Civil Judge (JD) (West), Jaipur City, Jaipur in Suit No.451/2001,
whereby suit for permanent injunction was dismissed, which has
been affirmed by Additional District Judge No.5, Jaipur
Metropolitan, Jaipur in Appeal No.06/2010, vide judgment dated
30.09.2016.
In this second appeal the dispute between parties is in
relation to a plot.
Learned counsel for appellant submits that plot in question
bearing plot No.9 was allotted to her by Sanyukt Griha Nirman
Sahkari Samiti.
Per contra, learned counsel for respondents submits that
plot Nos.3 and 4 (now 4 and 5) which were allotted by
Ambeshwar Griha Nirman Sahkari Samiti. The trial court and first
(2 of 3) [CSA-2/2017]
appellate court did not find plaintiff in possession over the plot in
question and dismissed her civil suit for permanent injunction.
Learned counsel for appellant submits that prior to the
present civil suit for permanent injunction, the respondent-
Bhagtawar had filed previous civil suit for permanent injunction
bearing No.588/1998 against appellant's husband and her father
in law, which was filed in relation to the same plot in question. In
the previous civil suit, vide judgment dated 04.11.2004, the trial
court found that plot in question is in possession of the Babu @
Babu Lal and Ghashi who are said to be husband and father in law
of the present plaintiff. The possession of Bhagtawar over the plot
in question was not found to be proved. The judgment dated
04.11.2004 was placed on record along with an application under
Order 41 Rule 27 CPC before the first appellate court, however,
the first appellate court dismissed the application, whereas the
judgment is relevant to the issue involved in the present case and
throw light over the germane issue to be decided. Reliance has
been placed on a judgment passed by Hon'ble Supreme Court in
the case of Wadi vs. Amilal & Ors. Reported in [(2015) 1 SCC
677].
Learned counsel for respondents-defendants submits that
findings of both courts below are based on appreciation of
evidence and at present defendants are having possession over
the plot in question. Defendants have the registered title deeds
and proof of having the actual possession over the plot in
question.
Having heard counsel for both parties.
Even if appellant is not found to be in possession of the plot
in question, the rights of appellant in context to previous
(3 of 3) [CSA-2/2017]
judgment dated 04.11.2004 are required to be considered in the
present case. Matter requires consideration and this second appeal
is admitted for hearing on following substantial question of law:-
"whether the first appellate court committed
jurisdictional error in dismissing the application under
Order 41 Rule 27 CPC and non-considering the judgment
dated 04.11.2004 wherein the findings in relation to
possession of plot in question between the same parties
was considered and decided?"
As per registered documents, sale deed and other documents
of possession which stands in favour of respondents, it stands
clear that as on date respondents are having possession over the
plot in question. Further, as far as present civil suit for permanent
injunction is concerned, appellant has failed to prove his
possession before the courts below, therefore, in such backdrop of
factual situation, the parties are directed to maintain status quo as
to alienation and possession in relation to property in question, as
it exists today.
Stay application stands disposed of.
(SUDESH BANSAL),J
SAURABH/4
Powered by TCPDF (www.tcpdf.org)
