Surendra Singh Pamecha vs Purshottam Sahu
2022 Latest Caselaw 4092 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 186/2020

Surendra Singh Pamecha S/o Bhanwar Lal Pamecha, Aged About 70 Years, R/o House No.41, Bhopalwadi, Udaipur, District Udaipur (Raj.)

----Appellant Versus

1. Purshottam Sahu S/o Dhanraj Sahu, R/o 22, Cement Gali, Kali Baodi Road, Udaipur.(Raj.)

2. Smt. Khayali Bai W/o Purshottam Sahu, R/o 22, Cement Gali, Kali Baodi Road, Udaipur.(Raj.)

----Respondents

For Appellant(s) : Mr. Abhishek Pareek

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Judgment

15/03/2022

The instant second appeal under Section 100 CPC has

been filed by the plaintiff - appellant herein, against the judgment

and decree dated 24.8.2020 passed by the learned Additional

District Judge No.4, Udaipur, Rajasthan in Civil Appeal No.

06/2015 titled as Surendra Singh Pamcecha vs. Purshottam Sahu

& Anr, whereby the order dated 28.2.2012 passed by the learned

Civil Judge (Jr. Division) North, Udaipur in Case No. 30/2010 titled

as Jai Prakash Jain vs. Purshottam Sahu & Anr., was upheld.

Brief facts of the case are as under:

Suit property previously belonged to one Jai Prakash

Jain, who filed a suit of injunction against the defendant -

respondents on 15.2.2010. Thereafter, Jai Prakash Jain sold the

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suit property to Anil Sial and Smt. Aruna Sial on 26.7.2010.

However, no evidence was produced to substantiate the plaint.

Thereafter, the suit was dismissed on 28.2.2012. Thereafter, the

suit property was purchased by appellant on 28.11.2013. After

purchasing the property, appellant filed an appeal on 21.5.2015

against the judgment and decree passed by the trial court

rejecting the suit. Alongwith appeal, an application under Section

5 of the Limitation Act was also filed seeking condonation of delay

in filing the appeal. Notices were issued. Appellant also filed an

application under Order 47 Rule 27 CPC read with Section 151

CPC. After taking on record the reply, the learned trial court by the

impugned order dated 24.8.2020 rejected the applications and

also affirmed the judgment and decree of the original court.

Aggrieved against the above order, this second appeal has been

filed by the appellant.

Heard the learned counsel for the appellant and

perused the record of the courts below.

Learned counsel for the appellant submits that while

purchasing the suit property, appellant was not aware regarding

any dispute with regard to the suit property. After purchasing the

suit property on 28.11.2013, he obtained construction permission

from Municipal Corporation, Udaipur on 27.11.2014. In accordance

with the construction permission, construction was started in April,

2015. Thereafter, respondents complained to police and the

construction was stopped. When police stopped the construction,

appellant obtained certified copy of the judgment and decree of

the trial court on 6.5.2015. Thereafter, without any delay,

appellant filed the appeal against the judgment and decree of the

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original court. As per the grounds raised in the memo of appeal,

on account of not producing evidence by original plaintiff, the suit

was dismissed. The plaintiff did not put correct facts before the

court. Since, rights of the parties have been adversely affected by

the judgment and decree of the trial court, appellant has filed this

appeal with the prayer to permit him to produce evidence to

substantiate the plaint.

In the application under Order 41 Rule 27 CPC,

appellant sought permission of the court to produce sale-deed

executed in his favour by Anil Sial and Smt. Aruna Sial and the

permission of construction obtained by him from the Municipal

Corporation, Udaipur.

In reply to the application filed under Section 5 of the

Limitation Act, respondents stated that in the sale-deed executed

by Jai Prakash Jain in favour of Anil Sial and Smt. Aruna Sial, the

fact of pending litigation has been specifically mentioned. While

executing the sale-deed in favour of the appellant by Anil Sial and

Smt. Aruna Sial, the sale-deed executed in their favour on

26.7.2010 was also delivered to appellant. Hence, the appellant

had knowledge about the pending litigation. He has obtained

construction permission in deceitful manner without disclosing the

fact of pending litigation.

After considering the application, learned Appellate

Court vide impugned order rejected the application and also

appeal itself. Aggrieved with the above order, this second appeal

has been filed.

In the impugned order, learned First Appellate Court

held that it was the duty of the appellant to be aware while

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purchasing the property. The fact of pending litigation was

mentioned in the sale-deed dated 26.7.2010 executed in favour of

Anil Sial and Smt. Aruna Sial. The said sale-deed was handed over

to the appellant while transferring the property by Anil Sial and

Smt. Aruna Sial to the appellant on 28.11.2013 by registered sale-

deed. In the considered opinion of this Court, no substantial

question of law has been raised by the appellant. In this appeal,

plaintiff cannot blame the original plaintiff Jai Prakash Jain and

subsequent purchaser Anil Sial and Smt. Aruna Sial for not taking

required interest in the litigation. Appellant has not made any

sufficient ground for condonation of delay in filing this appeal.

Appellate Court has rightly applied doctrine of 'Caveat Emptor',

according to which appellant was required to be vigilant while

purchasing the property, which was involved in litigation and the

suit was already dismissed on account of non-production of

plaintiff's evidence.

In application under Section 5 of the Limitation Act, the

grounds raised for condoning the delay in filing the appeal has

been rightly rejected by the Appellate Court and no question of

law is involved in this second appeal to take different view.

Accordingly, the present second appeal is dismissed at

admission stage.

(RAMESHWAR VYAS),J 6-Mak/-

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