Rajasthan High Court
Vikram Singh vs Tuhi Ram And Others on 2 November, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.284/2012
Vikram Singh S/o Indar Singh, R/o Village Dehmoli, Tehsil and
Distt. Karauli.
----Plaintiff/Appellant
Versus
1. Tuhiram S/o Deep Chand
2. Tulsiram S/o Deep Chand
3. Munshi Ram S/o Deep Chand
All R/o Village Dehmoli, Distt. Karauli.
----Defendants/Respondents
For Appellant(s) : Ms. Sunaina Sharma for
Mr. Jai Prakash Gupta
For Respondent(s) : Mr. Hari Krishan Sharma
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
02/11/2022
1. Appellant-plaintiff has preferred this second appeal under
Section 100 CPC assailing the judgment and decree dated
09.04.2012 passed in Civil Appeal No.62/2011 by the Court of
Additional District Judge (FT) No.1, Karauli affirming the judgment
and decree dated 01.02.2005 passed in Civil Suit No.159/98 by
the Court of Civil Judge (Jr. Division), Karauli whereby and
whereunder the learned trial court dismissed the plaintiff's suit for
permanent injunction and decreed the counter claim of the
defendants, in respect of having a way to the pasture land through
the way existed between land of Khasra No.163 and 150 and
issued mandatory injunction against plaintiff to remove his
obstruction erected in the way.
(2 of 4) [CSA-284/2012]
2. Heard counsel for both parties and perused the impugned
judgments and record.
3. Both courts below have concurrently observed that the
plaintiff is a trespasser over the land of Khasra No.163. The land
of Khasra No.163, as per revenue record, is recorded as 'gair
mumkin nala'. It is admitted case of plaintiff that he purchased
land of Khasra No.162 only but by virtue of his old possession, he
sought injunction in respect of his possession over the land of
Khasra No.163 also which was declined. This Court does not find
any illegality in dismissal of the prayer for permanent injunction of
plaintiff and as per record, his possession, if any, is as trespasser
on the government land.
4. In respect of the counter claim made by defendants, both
courts have concurrently recorded a fact finding that in order to
reach to the pasture land of Khasra No.151, the only available way
is in between the land of Khasra No.163 and 150. In order to
reach such findings, both the courts have appreciated the
evidence of both parties as also has placed reliance upon the
document (Ex.A5), the certificate issued by the gram panchayat,
Mayapur. Since it was found that on this way, the plaintiff has
raised some obstruction, therefore, the court below has issued a
mandatory direction to remove such obstruction and restrained
plaintiff's by way of prohibitory injunction not to make any
obstruction/hindrance in having movement through the way in
question. Two courts below have also recorded that the way in
question was being used by defendants and other villagers since
long and an easementary right also exists in their favour.
5. This Court does not find any perversity or illegality or
jurisdictional error in the fact findings of the courts below and
(3 of 4) [CSA-284/2012]
impugned judgment and decree. Learned counsel for appellant, at
length argued that no injunction in mandatory form could have
been passed unless title of the suit property is not examined.
6. Learned counsel has placed reliance on the judgment of the
Hon'ble Supreme Court passed in case of Gurunath Manohar
Pavaskar v. Nagesh Siddappa Navalgund [AIR 2008 SC
901].
6.1 Perusal of aforesaid judgment, its para No.13, goes to show
that the Supreme Court has observed that the mandatory
injunction without deciding the question of title should not be
passed.
7. Applying the aforesaid proposition of law on the present
case, plaintiff's possession over the land of Khasra No.163 which is
a government land has been noticed as an encroacher. He has no
title over that land, therefore, any encroachment by erecting a
wall, which obstructs the way to go in the pasture land of Khasra
No.151, the courts have passed the mandatory injunction to
remove the wall and other obstructions. The fact findings of courts
below and the decree for mandatory injunction is conformity with
the judgment of Gurunath Manohar Pavaskar (supra) relied upon
by the counsel for appellant.
8. Counsel for appellant could not point out any perversity that
the fact findings of the courts below are either based on surmises
and conjectures or based on no evidence or suffer from
misreading/non-reading of evidence.
9. 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
(4 of 4) [CSA-284/2012]
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 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]"
10. 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.
11. 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.
12. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J
SAURABH/93
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