Rajasthan High Court
Kanhaiya And Ors vs Ratan Singh on 1 November, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.790/2017
1. Kanhaiya S/o Ramkhiladi aged 51 years
2. Maniram S/o Ramkhiladi aged 45 years
3. Horilal S/o Ramkhiladi aged 42 years
All R/o Village Vilawati, Tehsil Kumher District Bharatpur
Rajasthan
----Appellants/defendants
Versus
Ratan Singh S/o Ramkhiladi, R/o Village Vilawati, Tehsil Kumher,
District Bharatpur
----Respondent
For Appellant(s) : Mr. B R Rana with Mr. H S Bikarwar
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
01/11/2022
1. Appellants-defendants have preferred this second appeal
under Section 100 CPC assailing the judgment and decree dated
18.09.2017 passed in Civil Appeal No.78/2016 by the Court of
Additional District Judge No.4 Bharatpur affirming the judgment
and decree dated 04.12.2012 passed in Civil Suit No.266/2011 by
the Court of Civil Judge (Sr. Division) Kumher Bharatpur whereby
and whereunder the civil suit for permanent injunction has been
decreed on merits in following terms:-
"वादी की ओर से प्रसरसर यह वादपत्र ्र ववरुद्ध प्र्र वरवादीगण िवादीगण बािवादीगण बरा
स्ायी ्र वनिषेधाजा, इस आशय से ्र व डिकी ्र वकया ा जारा हत ्र वक, प्र्र वरवादीगण,
्र वववा्र वदर मकानि" द" ्र वा जसका ्र वववरण वादपत्र के पतरा स संखया-2 मे ्र वदया
गया हत, उससे वादी को ा जिवादीगण बरनि िवादीगण बेदखल निहीं करे र्ा उसके उपयोग व
(2 of 3) [CSA-790/2017]
उपभोग मे वादी को कोई िवादीगण बाधा उतपननि निहीं करे । ख। खरा। पक्षकारानि
अपनिा अपनिा वहनि करे गे।
आदे शानिससार ्र व डिकी प। खरा। िवादीगण बनिाया ा जावे।"
2. Having heard counsel for appellants and on perusal of
impugned judgments, this Court finds that both courts below have
recorded a fact finding that respondent-plaintiff is in possession of
the disputed house and he should not be dispossessed without
following due course of law. Appellants-defendants themselves do
not dispute the possession of plaintiff. Their contention is that
plaintiff' possession is unauthorized and according to the division
made by their father, two houses are required to be divided. The
impugned decree passed by courts below does not defeat the right
of appellants to take the legal remedy on the basis of their
contentions.
3. Considering the nature of impugned decree, when the
possession of plaintiff over the suit property is not in dispute, this
Court is of unequivocal opinion that the decree does not suffer
from any illegality or jurisdictional error which calls for
interference by this Court under Section 100 CPC. It may also be
noticed that all three appellants and respondent are real brothers.
4. The Hon'ble Supreme Court in case of State of Rajasthan
v. Shiv Dayal [(2019) 8 SCC 637], has held that a concurrent
finding of the fact is binding, unless it is pointed out that it was
recorded dehors the pleadings or it was based on no evidence or
based on misreading of the material on records and documents.
The Court held as under:
"When any concurrent finding of fact is assailed in
second appeal, the appellant is entitled to point out
that it is bad in law because it was recorded dehors
(3 of 3) [CSA-790/2017]
the pleadings or it was based on no evidence or it
was based on misreading of material documentary
evidence or it was recorded against any provision of
law and lastly, the decision is one which no Judge
acting judicially could reasonably have reached.
(see observation made by learned Judge Vivian
Bose,J. as his Lordship then was a Judge of the
Nagpur High Court in Rajeshwar Vishwanath
Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar
& Ors.,[AIR 1943 Nag 117 para 43]"
5. The Hon'ble Supreme Court in case C. Doddanarayan
Reddy vs. C. Jayarama Reddy [(2020) 4 SCC 659], has
observed that where two courts have reached a finding which is
not based upon any misreading of material documents, nor is
recorded against provisions of law and neither can it be said that
any Judge acting judiciously and reasonably could not have
reached such a finding, then High Court is not required to interfere
with such fact findings while exercising its jurisdiction under
Section 100 CPC.
6. As a result, the second appeal is bereft of merits being no
involvement of any substantial question of law and accordingly,
the same is hereby dismissed.
7. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J
SAURABH/66
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