Nagar Palika Jhalawar vs Chhitar Lal
2022 Latest Caselaw 3475 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Second Appeal No. 250/2015

Nagar Palika, Jhalawar Tehsil Jhalarapatan District Jhalawar,
Rajasthan.
                                                     ----Defendant/Appellant
                                   Versus
Chhitar Lal Son of Balu Ram, retired Kanongo R/o 81 Jawahar
Colony, Jhalawar District Jhalawar
                                                      ----Plaintiff/Respondent

For Appellant(s)         :     Mr. Sumit Kumar Sharma for
                               Mr. Sandeep Sharma, Dy. Govt.
                               Counsel
For Respondent(s)        :



             HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

02/05/2022

1. Learned counsel appearing for appellant, make a request to

adjourn the appeal, however, the case reveals that the appeal was

filed on 14.05.2015 and since then, counsel for appellant has

asked adjournments many a times and the appeal is pending at

the admission stage, hence the prayer, for adjournment without

any justified ground, is declined.

2. Appellant-defendant-Nagar Palika, Jhalawar (during appeal

converted as Nagar Parishad) has preferred this second appeal,

invoking the jurisdiction of the High Court under Section 100 CPC

assailing the judgment and decree dated 01.04.2015 passed in

Civil Appeal No.25/2012 by the Court of Additional District Judge,

Jhalawar, affirming the judgment and decree dated 09.10.2012

(2 of 6) [CSA-250/2015]

passed in Civil Suit No.60/2009 by the Court of Additional Civil

Judge (Senior Division), Jhalawar whereby and whereunder,

following decree has been passed in favour of respondent-plaintiff

and against the appellant-defendant:-

"फलतः वाद वादी ववरुद्ध प्रवतवादी दी सवीस्वीकार वस्वीकर किया िया जास्वीकर आदाश वदर किया

िया जाता ह वस्वीक:-

(१) प्रवतवादी नगरपावलस्वीका स्वीक को िया जररर किया दी स ार कियी वनषाेधााजा पा पाबा पाबंेध वस्वीकर किया िया जाता ह वस्वीक

वह वादी स्वीक को वववावदत भखं ख ा पाबंड सा पाबादखंल नहं स्वीकरा त ा अनर किय वस्वीकसी सा भी पाबादखंल

नहं स्वीकरावा व् वादी स्वीक को दी गर कियी इजिया जािया जत तामीर अननसार वनमा् ण स्वीकार किय् स्वीकरना मे

प्रवतवादी वस्वीकसी भी प्रस्वीकार वस्वीक पाबाेधा उा उतपनन नहं स्वीकरा ।

(२) खंरा् पक्षस्वीकारान अपना-अपना वहन स्वीकरा गा।

(३) वडक्री पररा तदननसार मनतुर्ती पाब वस्वीकर किया िया जावा। "

3. The relevant facts, which may be recapitulated from the

record, are that the dispute is in relation to one plot having an

area of 10X30 feet, situated at Jhalawar, which was allotted by the

Nagar Palika, Jhalawar to respondent-plaintiff on 01.11.2002 and

the registered document of sale was executed after receiving the

sale consideration of Rs.63,300/-. Thereafter, it appears that the

Nagar Palika, Jhalawar granted permission to plaintiff on

15.12.2004 to raise construction, however, when the plaintiff

started construction, the Nagar Palika came to dismantle the

same. At that juncture, plaintiff has filed a civil suit for permanent

injunction on 27.07.2005.

4. Appellant-Nagar Palika submitted written statement

contending therein that the plot in question falls within the area of

100 feet from the centre road of National Highway, hence the

allotment/sale, made in favour of plaintiff, is void and further the

permission for construction, granted to plaintiff, has been

(3 of 6) [CSA-250/2015]

cancelled by the Sub. Divisional Officer, Jhalawar vide its order

dated 16.07.2005.

5. In view of the aforesaid rival claims of both parties in relation

to the plot in question, issues were framed and evidence were

recorded. Plaintiff, apart from adducing oral evidence, produced

his document of title including the sale deed, map, sanction for

permission and the resolution of the Nagar Palika to allot the plot

in question to plaintiff along with certain photographs showing his

construction from Exhibit-1 to Exhibit-15. In rebuttal, the Nagar

Palika produced its one witness Sh.Kailash Chand Mali as DW.1

and produced certain documents, order of the S.D.O for cancelling

the allotment and sanction granted to the plaintiff.

6. The trial court, on appreciation of respective pleadings and

evidence adduced by both parties, came to the conclusion that the

Nagar Palika has failed to show that plot in question falls the

within the area of 100 feet from the centre of the National

Highway. Accordingly the issue No.4 was decided against the

Nagar Palika. The trial court observed that the plaintiff has

produced his title document through which it stands proved that

the plot in question was allotted/sold by the Nagar Palika against

the sale consideration and further the sanction for construction

was also accorded, then the concerned S.D.O does not have the

jurisdiction and power to cancel the sale and the sanction that too

without giving any opportunity of hearing to the plaintiff. The trial

court further observed that once an immovable plot has been sold

through registered document, the same can be cancelled only

through filing a civil suit before the civil court. The trial court, on

strength of evidence on record, observed that the plot in question

is in actual possession of the plaintiff and he has raised some

(4 of 6) [CSA-250/2015]

construction thereon. In that view of factual matrix and legal

proposition, the trial court decreed the plaintiff's suit and passed a

decree for permanent injunction in favour of plaintiff as mentioned

hereinabove.

7. Appellant-Nagar Palika assailed the judgment and decree

dated 09.10.2012 by filing first appeal. Though, the first appeal

was filed with some delay, however, after condoning the delay, the

same was heard and considered on merits. The first appellate

court re-considered the pleadings and evidence of both parties.

The first appellate court also observed that the plot in question

has been allotted/sold to plaintiff on 01.11.2002 by the Nagar

Palika, Jhalawar and thereafter the sanction for construction was

also granted. The first appellate court has further observed that

the cancellation granted to plaintiff for construction in plot by the

S.D.O vide order dated 16.07.2005 (Exhibit-A5), cannot be

treated as lawful cancellation as for the purpose of cancellation of

the registered sale deed, a civil suit could have been filed. Thus,

the first appellate court concluded that registered sale

deed/allotment made by the Nagar Palika in favour of plaintiff has

not be cancelled in the eye of law and the same stands valid.

8. It has also come on record that although, the Nagar Palika

took a defense that the plot in question falls within the area of 100

feet from the centre of the National Highway, however, it

transpired that for making some beautification of the crossing and

to build a memorial for martyrs, the Nagar Palika is inclined to

dismantle the construction and dispossess plaintiff from the plot in

question. Such stand of Nagar Palika, without acquiring the land

allotted to the plaintiff, may not be held justified and permissible

in law.

(5 of 6) [CSA-250/2015]

9. Since, both courts below have concurrently observed that the

plot in question was allotted/sold to plaintiff and he is having the

actual possession and has raised construction after getting

sanction by the Nagar Palika, such findings of fact are based on

appreciation of evidence, this Court is not inclined to interfere in

the same.

10. At the stage of second appeal while exercising the

jurisdiction under Section 100 CPC, the High Court is not supposed

to re-appreciate the evidence as a whole to draw a different

conclusion than expressed by two courts below. The fact findings

are the province of the trial court and the first appellate court

which unless and until do not suffer from any perversity are not

required to interfere with by the High Court under Section 100

CPC. Even if, the fact findings may be incorrect, the same cannot

be disturbed when the same is based on appreciation of evidence.

11. The substantial questions of law as proposed by appellant-

defendant are essentially questions of fact which requires

reappreciation of evidence. Re-appreciation 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 by

Hon'ble the Supreme Court 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.

(6 of 6) [CSA-250/2015]

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].

12. In that view of matter, this second appeal is bereft of merits

and having involvement of no substantial question of law, the

same cannot be entertained and liable to be dismissed and is

hereby dismissed. There is no order as to costs.

13. Stay application as well as other pending application(s), if

any, also stand(s) disposed of.

14. Record of two courts be sent back.

(SUDESH BANSAL),J

SACHIN/2

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