Rambhoop Sharma S/O Late Shri ... vs Pawan Kumar Agarwal S/O Shri ...
2022 Latest Caselaw 3927 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

              S.B. Civil Second Appeal No. 102/2022

Rambhoop Sharma S/o Late Shri Motilal Sharma
                                                                   ----Appellant
                                    Versus
Pawan Kumar Agarwal S/o Shri Rameshwar Lal Agarwal
                                                                 ----Respondent

For Appellant(s)          :     Mr. Anand Sharma
For Respondent(s)         :


             HON'BLE MR. JUSTICE SUDESH BANSAL
                            Order

18/05/2022

Counsel for appellant submits that respondent-plaintiff is

neighbour of appellant and it has come on record that house of

appellant had already been constructed, prior to the house of

respondent-plaintiff.

It appears from record that dispute is between the two

neighbours, respondent-plaintiff is having possession of the plot

bearing No.2/288 and appellant-defendant is in possession of the

plot No.2/289 at Vidhyadhar Nagar, Jaipur. Plaintiff instituted a

civil suit to claim possession of land of his plot measuring 11 feet

alleged to be covered by defendant. The trial Court decreed the

suit vide judgment dated 12.01.2018, however, on filing the first

appeal, the first Appellate Court has modified the decree for

possession confining it to the extent of 4.912 square meter area of

land.

Counsel for appellant submits that firstly the decree for

possession passed in favour of respondent-plaintiff is wholly

perverse. Out of the constructed house of defendant, an area of

4.912 square meter is inseparable, hence, considering the short

(2 of 2) [CSA-102/2022]

size of the area alleged to be covered by defendant, instead of

passing the decree for possession, the plaintiff could have been

compensated by way of awarding damages at the most.

Matter requires consideration.

Second appeal is admitted on the following substantial

questions of law:-

(i) Whether both Courts below have committed perversity in passing the decree for possession without considering the entire evidence on record?

(ii) Whether in order to balance the equities between parties and to mitigate the hardship of defendant the plaintiff can be compensated by awarding the damages in lieu of an area of 4.912 square meter of his plot No.2/288, considering that such an short area is an inseparable part out of the constructed house of defendant over his plot No.2/289?

(iii) Whether in case question No.(ii) is held affirmative in favour of appellant, the matter requires to be remanded back to the trial Court, allowing the parties to amend their pleadings and to adduce evidence to assess the compensation?

Issue notice to respondents.

Record of both Courts below be summoned.

In the meanwhile and till further orders, the execution of the

impugned decree dated 07.03.2022 passed in Civil First Appeal

No.3/2018 by the Court Additional District Judge No.4, Jaipur

Metropolitan II, shall remain stayed with further directions that

both parties shall maintain status quo in relation to the disputed

part of the property in question.

(SUDESH BANSAL),J

NITIN /9

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