Satya Swaroop Gothwal vs Smt Gaindi Devi
2022 Latest Caselaw 2641 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

           S.B. Civil Second Appeal No. 142/2012

1.     Satya Swaroop Gothwal S/o Late Shri Nanak Chand
       Bunkaro Ka Mohalla, Gandhi Chowk, Chomu, Distt. Jaipur
       Raj.
2.     Ku. Neelam D/o Late Shri Nanak Chand Bunkaro Ka
       Mohalla, Gandhi Chowk, Chomu, Distt. Jaipur Raj.
3.     Smt. Suman D/o Late Shri Nanak Chand W/o Shri
       Ramesh Chand Nainawal Bunkaro Ka Mohalla, Ajeetgarh
       Road, Shahpura, Distt. Jaipur Raj.
4.     Smt. Saroj D/o Late Shri Nanak Chand W/o Shri
       Bhagirath Prasad Bunkar Mohalla Gokulpura, Kalwar
       Road, Jhotwara, Distt. Jaipur Raj.
                                                                  ----Appellants
                                   Versus
Smt. Gaindi Devi @ Gulab Devi W/o Shri Tulsi Ram Thana Naradi
Road, Near Montessori School, Madanganj, Distt. Ajmer Raj.
                                                                ----Respondent

Connected with

S.B. Civil Second Appeal No. 468/2019

1. P.k. Raj Satyaswaroop S/o Nanagchand, R/o Bunkaro Ka Mohalla, Chomu District Jaipur

2. Neelam D/o Nanagchand, R/o Bunkaro Ka Mohalla, Chomu District Jaipur

3. Suman D/o Nanagchand W/o Ramesh, R/o Bunkaro Ka Mohalla, Shahpura District Jaipur

4. Saroj D/o Nanagchand W/o Bhagirath, R/o Tejaji Ke Mandir Ke Samne, Gram Gokulpura, Kalwad Road, Jaipur (Deceased)

----Appellants Versus Smt. Gaindi Devi Alias Gulab Devi D/o Tulsiram, R/o Bangasiyo Ki Mori Bahar, Gandhi Chowk, Chomu District Jaipur

----Respondent

For Appellant(s) : Mr. Ajay Gupta with Mr. Deven Pareek Mr. R.M. Jain For Respondent(s) :

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

(2 of 7) [CSA-142/2012]

30/03/2022

1. In both appeals parties are common and disputed property

as well as issue involved is also identical, therefore, with consent

of both counsel for appellants have been heard together and are

being decided by this common order.

2. In appeal No.142/2012, predecessor of appellants namely

Nanagchand (Nanak Chand) has filed a civil suit for declaration

and permanent injunction against respondent Gaindi Devi in the

year 1998. Plaintiff- Nanagchand while assailing patta bearing

No.468 dated 08.04.1976 of defendant, claimed his ownership by

way of adverse possession and prayed for decree of permanent

injunction. The trial Court found that plaintiff was in permissive

possession through defendant who was found owner of suit

property by virtue of patta dated 08.04.1976 and accordingly

plaintiffs' suit was dismissed vide judgment dated 18.04.2006.

Plaintiffs assailed judgment dated 18.04.2006 by way of filing first

appeal which has been dismissed on merits vide judgment dated

20.01.2012, hence, against concurrent findings of fact and

dismissal of plaintiffs' suit by the two Courts below, this second

appeal has been preferred.

3. In second appeal No.468/2019, Respondent-Gaindi Devi filed

civil suit for possession against predecessors of appellants namely

Nanagchand on 06.12.2007 claiming inter alia that property in

question was allotted through patta No.468 dated 08.04.1976

issued by Gram Panchayat in favour of Bheru Ram and she is

daughter of Bheru Ram, hence, she has acquired ownership after

death of Bheru Ram. Possession of Nanagchand was claimed as

licensee and on termination of license, she filed suit for

possession. The trial Court, vide judgment dated 21.08.2013

(3 of 7) [CSA-142/2012]

decreed the suit for possession against Nanagchand along with

mesne profit @ Rs.600/- per month. Challenge to the judgment

and decree for possession and mesne profit dated 21.08.2013 was

made by way of first appeal and first Appellate Court, after

rehearing of matter has affirmed the judgment and decree of the

trial Court and dismissed the first appeal vide judgment dated

29.05.2019. Hence, against both judgments and decree for

possession, this second appeal has been filed by the appellants-

defendants.

4. The relevant facts of present cases, as culled out from record

are that suit property is a Guwadi situated at Chomu. Appellants'

predecessor Nanagchand filed a civil suit for declaration and

permanent injunction, claiming that patta of this Guwadi bearing

No.468 dated 08.04.1976 was issued by Gram Panchayat in favour

of respondent's father namely Bheru Ram be declared null and

void as by virtue of his long and unobstructed possession, he has

acquired title by virtue of adverse possession. Plaintiff claimed

that he has raised construction of two rooms, Lat-bath and tin

sheded portion over the Guwadi and obtained water and electricity

connection in his name. Plaintiff while claiming adverse possession

also assailed patta of defendant seeking declaration of the same

as null and void. Defendant submitted written statement and

claimed that patta dated 08.04.1976 issued in favour of her father

Behru Ram is lawful and valid. During lifetime of Bheru Ram, he

resided in Guwadi. Plaintiff-Nanagchand was nephew of Bheru

Ram. After death of Bheru Ram, defendant being his natural

daughter, is real owner of Guwadi and since her husband was

posted in Railway at Ajmer, therefore, she permitted the plaintiff-

Nanagchand to use Guwadi for its maintenance and as caretaker.

(4 of 7) [CSA-142/2012]

According to defendant, plaintiff's possession over Guwadi was

permissive possession and if plaintiff has obtained electricity and

water connection, the same do not confer any ownership rights.

As far as question of raising construction of two rooms, Lat-bath

and tin sheded portion with Guwadi portion is concerned, the

same have been raised on the cost of defendant, for which a

receipt of payment of Rs.93,325/- dated 21.06.1994 was

produced on record.

5. The trial Court on the basis of rival pleadings of parties

settled issues and recorded evidence of both parties. The trial

Court on appreciation of evidence, found that plaintiff's claim for

adverse possession over the Guwadi is not proved. Such

conclusion was based on fact that plaintiff filed civil suit on

23.02.1998 and in support of his possession, he produced bills of

electricity and water consumption (Exhibit 18 and 19) of the year

1993 and 1996. The construction over Guwadi was alleged to be

made in the year 1994. Thus, the trial Court recorded that on the

date of filing of suit in the year 1998, plaintiff's possession over

Guwadi prior to 12 years from date of suit is not proved. That

apart, the trial Court found that possession of plaintiff over

Guwadi was as permissive possession. Such conclusion was based

on evidence that Guwadi was allotted in favour of Bheru Ram who

happens to be uncle of plaintiff and during lifetime of Bheru Ram,

was in use and occupation of Guwadi. After his death, Bheru's

daughter namely Gaindi Devi (respondent herein), got title and

possession of Guwadi. Respondent allowed the plaintiff to sue the

Guwadi. Plaintiff and his witnesses, in cross examination admitted

the fact earlier that Bheru Ram was in use and occupation of

Guwadi and could not show his long possession. Thus, where

(5 of 7) [CSA-142/2012]

plaintiff failed to prove acquiring of ownership by way of adverse

possession, his possession was found as permissive possession.

The challenge to patta of Bheru Ram remain failed and accordingly

plaintiff's suit was dismissed vide judgment dated 18.04.2006.

The findings of fact as recorded by the trial Court in judgment

dated 18.04.2006 have been affirmed by the first Appellate Court

on re-appreciation of evidence and material available on record

vide judgment dated 20.01.2012. Counsel for appellants made an

attempt to assail evidence of fact, claiming the same to be

perverse, however, could not point out any infirmity, illegality or

perversity in findings of fact recorded by two Courts below.

6. This Court finds that findings of fact and conclusion recorded

by the two Courts below are based on appreciation of evidence

and same do not suffer from any perversity. Re-appreciation of

evidence at the stage of second appeals is not permissible within

the scope of Section 100 CPC, thus, judgments dated 18.04.2006

and 20.01.2012 are not liable to be interfered with at the stage of

second appeal.

7. In civil suit for possession filed by respondent- Gaindi Devi,

the trial Court has examined validity and legality of patta No.468

dated 08.04.1976 (Exhibit 1) and found ownership of Guwadi

vests with Mr. Bheru Ram, in whose favour patta was issued by

Gram Panchayat. It was recorded that after death of Bheru Ram,

ownership devolved upon his daughter, namely Smt. Gaindi Devi.

Her civil suit for possession and mesne profit has been decreed on

appreciation of evidence vide judgment dated 29.05.2019. The

trial Court has recorded that defendant has not produced any

evidence to show hir title and to protect his possession quo

plaintiff. Apart from appreciation of document patta, findings

(6 of 7) [CSA-142/2012]

recorded in judgment dated 18.04.2006 passed in previous civil

suit for permanent injunction filed by Nanagchand were also taken

into consideration. Nanagchand and his witnesses admitted

issuance of patta of Guwadi in favour of Bheru Ram. Since

possession of defendant was found as permissive and plaintiff was

found to be owner, the suit for possession and mesne profit was

decreed vide judgment dated 21.08.2013. Defendant assailed

judgment by way of appeal, which has been heard on merits and

on re-appreciation of evidence, has been dismissed vide judgment

dated 29.05.2019.

Counsel for appellants argued that decree for possession has

been passed only in relation to portion of property whereas they

are having possession over the whole Guwadi, therefore,

impugned judgments are perverse.

8. Having heard counsel for appellants and perused impugned

judgments as well as material available on record, this Court finds

that patta No.468 dated 08.04.1976 issued in favour of Bheru

Ram for Guwadi in question has been held valid and challenged to

the patta, at the behest of appellants has been dismissed.

Appellants' possession over the Guwadi was found as permissive

possession and their civil suit for permanent injunction too has

been dismissed. Thus, appellants have no right to retain

possession over Guwadi and respondent Gaindi Devi is entitled to

get back the possession. The judgment and decree for possession

dated 21.08.2013, as upheld in first appeal vide judgment dated

29.05.2019, do not suffer from any perversity. Arguments raised

by appellants, are not sustainable to assail the judgment and

decree which is based on appreciation of evidence and within

parameters of law.

(7 of 7) [CSA-142/2012]

9. This Court does not find involvement of any substantial

question of law in both appeals. In absence of any substantial

question of law, powers under Section 100 CPC cannot be

exercised. The substantial questions of law as proposed by

appellant-plaintiff are essentially questions of fact which requires

reappreciation of evidence. Reappreciation of evidence is not

permissible within scope of Section 100 of CPC, unless and until

there is some illegality or perversity in findings of impugned

judgments. None of the question of law, falls within purview of

substantial question of law. In order to exercise the scope of

Section 100 of CPC, involvement/formulation of substantial

question of law is sine qua non. Otherwise also, it is a case of

concurrent findings of facts even if erroneous cannot be disturbed

in exercise of powers under Section 100 CPC as has been held 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., [(2019) 10 SCC 595]. Since no substantial

questions of law are involved in present appeal thus, same is not

liable to be entertained. Accordingly, second appeals are bereft

of merits and same are accordingly dismissed.

10. All pending application(s), if any, also stand(s) disposed of.

(SUDESH BANSAL),J

NITIN /81 &12

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