Rajasthan High Court

Jagdish Prasad And Others vs Rameshwar And Others on 3 November, 2022

Bench: Sudesh Bansal

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Civil Second Appeal No. 23/2015
1. Jagdish Prasad S/o Chiranjilal
2. Radheshyam S/o Sh. Chiranjilal
3. Banwarilal S/o Sh. Chiranjilal
All residents of Mandawari, Tehsil Rajgarh, District Alwar
Rajasthan
----Appellants/Plaintiffs
Versus
1. Rameshwar S/o Shri Ramdhan (deceased)
2. Kajod S/o Sh. Ramdhan (deceased)
2/1. Mst. Shankuntla wife of Shri Kajodmal, R/o Mandawri, Tehsil
Rajgarh, Alwar
2/2. Kamlesh S/o Kajodmal (deceased) through her legal heirs
2/2/1. Kanta widow of Kamlesh
2/2/2. Ramakant S/o Kamlesh
Both residents of Mandawari, Tehsil Rjagarh, District Alwar
Rajashtan
2/2/3. Satyanarain S/o Kamlesh
2/2/4. Satish S/o Kamlesh
2/2/5. Vandna D/o Kamlesh
2/2/6. Achuki D/o Kamlesh
(No.2/2/3 to 2/2/6 all are minors through their mother and
natural guardian Smt. Kanta Devi Wd/o Kamlesh) All R/o
Mandawari, Tehsil Rajgarh, Alwar
2/3. Dinesh S/o Sh. Kajodmal R/o Mandawari, Tehsil Rajgarh,
Alwar
2/4. Mahendra S/o Sh. Kajodmal R/o Mandawari, Tehsil Rajgarh,
Alwar minor through mother and natural guardian Shankuntala
Widow of Sh. Kajodmal
2/5. Dhapla S/o Sh. Kajodmal R/o Mandawari, Tehsil Rajgarh,
Alwar minor through mother and natural guardian Mst.
Shankuntala Widow of Kajodmal
2/6. Guddo @ Maya wife of Sh. Jagdish Prasad d/o Sh.
Kajodmal, R/o Village Dera, Tehsil Rajgarh, District Alwar
Rajasthan
2/7. Kripa W/o Rajababu D/o Sh. Kajodmal at present r/o
Twandawala Bas, Geejgarh, Tehsil Sikrai District Dausa,
Rajasthan
2/9. Lali D/o Shri Kajodmal r/o Mandawari minor through mother
and natural guardian Shankuntala widow of Kajodmal at present

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r/o Twandawala Bas, Geejgarh, Tehsil Sikrai District Dausa
Rajasthan
----Respondents/Defendants

For Appellant(s)           :     Mr. Girish Khandelwal
For Respondent(s)          :



             HON'BLE MR. JUSTICE SUDESH BANSAL

                                  Judgment

03/11/2022

1. Appellants-plaintiffs have preferred this second appeal under

Section 100 of the Code of Civil Procedure, assailing the judgment

and decree dated 16.10.2014 passed in Civil Regular Appeal

No.13/2010 by the Court of Additional District Judge, Rajgarh

(Alwar) whereby and whereunder while setting aside the judgment

and decree 10.05.2010 passed in Civil Suit No.34/1994 by the

Court of Civil Judge (Junior Division), Rajgarh, Alwar, decreeing

plaintiffs' suit for specific performance, the first appellant court

dismissed the suit for permanent injunction in respect of way in

question on merits.

2. Heard counsel for appellants, perused the impugned

judgment and record.

3. It appears from the record that appellants-plaintiffs

instituted a simplicitor suit for permanent injunction, claiming

their right to way through the land of Khasra Nos.361 and 362,

belonging to defendants, in order to reach Khasra No.278 at

Village Mandawari, District Alwar. It is not in dispute that the

alleged way is not a demarcated way in the revenue record and

plaintiffs have not filed any civil suit, seeking declaration of the

way or claiming their easementary right.

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4. The first appellant court, while reversing findings of the trial

court, has observed that plaintiffs and their witnesses admit that

they have an alternative way to reach their land of Khasra no.278.

The existence of alleged way through the land of Khasra Nos.361

and 362, which belongs to defendants, have not been found

proved by the evidence of plaintiffs and the report of Court

Commission (Ex.5) also affirmed such factual position.

5. The first appellate court, after considering the entire

evidence of both parties, has assigned cogent reasons to reverse

the findings of the trial court.

6. This Court is of considered opinion that when it is not in

dispute that plaintiffs have an alternative way to their fields and

have filed simplicitor suit for permanent injunction, without

seeking any declaration of easementary right or existence of the

way in question, the first appellate court has not committed any

illegality or jurisdictional error in dismissing their suit. The first

appellate court is a last court of fact finding and has jurisdiction to

reverse the findings of the trial court, if same are contrary to the

evidence and against the proposition of law. Learned trial court

nowhere pondered over the fact that plaintiffs have alternative

way and in absence of making prayer for declaration, cannot claim

easementary right and in that aspect the trial court has committed

error in decreeing the suit for permanent injunction. The first

appellate court is well within its jurisdiction to reverse the decree

passed by the trial court.

7. Hon'ble the Supreme Court in case of Kondiba Dagadu

Kadam Vs. Savitribai Sopal Gurjar [(1999) 3 SCC 722], has

held as under:

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"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

Hon'ble the Supreme Court in another case of Santosh Hazari

vs Purushottam Tiwari [(2001) 3 SCC 179], held as under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper

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decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

8. Both aforementioned judgments have been relied upon by

the Hon'ble Supreme Court in umpteen number of cases as also

recently in cases of C. Doddanarayan Reddy Vs. C. Jayarama

Reddy [(2020) 4 SCC 659] & State of Rajasthan Vs. Shiv

Dayal [(2019)8 SCC 637].

9. In view of above, this Court finds that the first appellate

court has acted well within its jurisdiction and the reversal of

findings are based on due appreciation of evidence by assigning

reasons. Such findings do not suffer from any perversity. Learned

counsel for appellants also could not point out that findings of first

appellate court suffer from any infirmity/illegality or

misreading/non-reading of evidence. No substantial question of

law arises in the present appeal substantially, sine qua non for

exercising the jurisdiction under Section 100 CPC and to entertain

the second appeal. Hence, the second appeal is found to be devoid

of merits and the same is dismissed. There is no order as to costs.