Rajasthan High Court
Mohan Lal vs Anandi Bai on 2 November, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.447/2007
Mohan Lal S/o Chhitar Lal Soni, Resident of Indra Market,
Brijrajpura, Kota
----Plaintiff-Appellant
Versus
1. Smt. Anandi Bai W/o Late Shri Girdhari Lal
2. Shyam Sundar S/o Late Shri Girdhari Lal
3. Narendra Kumar S/o Late Shri Girdhari Lal
All are resident of Brahampuri, Indra Market, Brijrajpura,
Kota.
4. The Municipal Corporation, Kota
----Defendant-Respondents
For Appellant(s) : Mr. Shailesh Prakash Sharma
For Respondent(s) : Mr. Deepak Pareek
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
09.03.2007 passed in Civil First Appeal No.66/2002 by the Court
of Additional District Judge No.5, Kota affirming the judgment and
decree dated 19.10.2002 passed in Civil Suit No.110/91 by the
Court of Civil Judge (Jr. Division) whereby and whereunder the
civil suit for permanent injunction filed by appellant-plaintiff has
been dismissed on merits.
2. Having heard the counsel for both parties, it appears that
both parties are neighbours and dispute is in respect of installing
an iron channel gate by defendants and thereby plaintiff claims
(2 of 3) [CSA-447/2007]
that his way to his house has been narrowed. It has come on
record that the gate was installed by defendants after dismissal of
the application for temporary injunction but without seeking any
permission from the Nagar Nigam. The appellate court though has
noticed that not taking permission from Nagar Nigam is
irregularity but not illegality and plaintiff never made any
complaint before the Nagar Nigam, Kota. Since both courts below,
on the basis of plaintiff's evidence, have found that his access to
the house is available and there is no clear evidence that in what
size the way has been squeezed. Therefore, in view of such
evidence, both courts below have dismissed the suit for
permanent injunction.
3. This Court does not find any perversity or illegality or
jurisdictional error in the fact findings recorded by both courts
below as the same are based on the material evidence on record
and cannot be said to be passed on surmises and conjectures or
contrary to the settled proposition of law. When it has come on
record that plaintiff never made complaint before the Nagar Nigam
in respect of making any encroachment by the defendant No.1
over the way in question and there is no evidence available on
record before the court, this Court is not inclined to interfere with
the fact findings.
4. It is needless to observe that in case any obstruction by the
installation of gate or construction by defendants has been made
over the way, the plaintiff could have made a complaint before the
Nagar Nigam, Kota. Both courts below have not restrained the
plaintiff in that respect.
5. In such view of the matter, there is no substantial question
of law involved in this second appeal. It is trite law that
(3 of 3) [CSA-447/2007]
involvement/formulation of substantial question of law is sine qua
non for entertaining the second appeal.
6. 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.
7. 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. Record be sent back.
8. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J
SAURABH/92
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