Rajasthan High Court
Roop Singh vs Gram Panchyat Leeli Ps Laxmangrah ... on 6 May, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 122/2016
Roop Singh son of Shri Mangyaram, aged about 64 years,
Resident of village Leeli, Tehsil Laxmangarh, District Alwar (Raj.)
----Appellant-plaintiff
Versus
1. Gram Panchyat Leeli, Panchayat Samiti Laxmangrah, through
its Sarpanch, Gram Panchayat Leeli, Tehsil Laxmangarh, District
Alwar (Raj.)
2. State of Rajasthan through District Collector, Alwar (Raj.)
3. Nemi Chand son of Shri Mangya, Resident of Leeli, Tehsil
Laxmangarh, District Alwar (Raj.)
4. Mewa Ram son of Shri Mangyaram, Resident of Village Leeli,
Tehsil Laxmangarh, District Alwar (Raj.)
----Respondents
For Appellant(s) : Mr. Girish Khandelwal
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
06/05/2022
1. Appellant-plaintiff has filed by this second appeal, assailing
judgment and decree dated 10.12.2015 passed by Additional
District Judge, Laxmangarh, Alwar in Civil Appeal No.14/2013,
affirming the judgment and decree dated 31.07.2013 passed by
Civil Judge (Junior Division), Laxmangarh, Alwar in Civil Suit
No.12/2007 whereby and whereunder appellant-plaintiff's suit for
damages and mandatory injunction has been dismissed on merits.
2. From perusal of plaint, it appears that appellant-plaintiff filed
a civil suit on 20.02.2007, claiming damages of Rs.4000/- alleging
inter alia that respondents have carved out a road through his
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agricultural land of Khasra No.730 and damaged his crop standing
thereupon. A decree for mandatory injunction was also prayed to
remove the road to lead on agricultural land of plaintiff.
3. Respondents submitted their written statement and declined
to carve out any road through land of Khasra No.730 but it was
clarified that road was constructed on the land of Khasra No.736
which is a common and public way. It was contended that since
the plaint and other Khatedars have encroached over the common
way of Khasra No.736. Hence, plaintiff has not filed the civil suit
with correct facts and has filed the same maliciously to maintain
his encroachment over the public way.
4. The trial Court on appreciation of pleadings and evidence of
both parties observed that from the statements of witnesses on
record, it appears that width of public road in Khasra No.736 is
50-60 feet as per the revenue record whereas at site the width
was found 25-30 feet.
5. In view of aforesaid evidence, the trial Court observed that
the plaintiff and other adjoining Khatedars have encroached over
the public road situated in Khasra No.736. Though, the plaintiff
relied on the report of Patwari (Exhibit 5) to contend that road is
passing through land of Khasra No.730 but the report of Patwari
has not been found proved and believed by the trial Court. A
perusal of report, also goes to show that same is bereft of details
about the width of public road in Khasra No.736. The report of
Patwari has rightly been disbelieved by the trial Court.
Accordingly, with aforesaid findings, the trial Court has dismissed
the plaintiff's suit.
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6. The first appeal was filed but the Appellate Court on finding
no infirmity and perversity in the fact findings of the trial Court,
dismissed the appeal vide judgment dated 31.07.2013.
7. After hearing counsel for appellant-plaintiff and perused
impugned judgments available on record, this Court finds that
plaintiff's led civil suit claiming damages of Rs.4000/-. As per
Section 102 of Civil Procedure Code, no second appeal shall lie
from any decree when the subject matter of original suit is for
recovery of money not exceeding Rs.25,000/-. Thus, in view of
Section 102 of CPC, the second appeal for relief of damages is not
maintainable. As far as relief for mandatory injunction is
concerned, two Courts below have recorded fact findings that no
road has been carved out on the agricultural land of plaintiff
bearing Khasra No.730 but road has been carved out on the land
of Khasra No.736. The width of road as per revenue record is near
about 50-60 feet and it was observed that since the plaintiff and
other persons have made some encroachment over the road,
therefore, while constructing road over the land of Khasra No.736,
same has been removed. As such there is no infirmity in such fact
findings and declined the relief of mandatory injunction. No
substantial question of of law is involved in the second appeal.
8. 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
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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, the second appeal is found to
be without force and same is hereby dismissed. There is no order
as to costs.
9. Stay application and other pending application(s), if any, also
stand disposed of.
10. Record of both Courts below be sent back forthwith.
(SUDESH BANSAL),J
NITIN /37
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