Rajasthan High Court

Chauthu S/O Shri Bhoramal vs Mangal Chand S/O Late Shri Baluram on 4 November, 2022

Bench: Sudesh Bansal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

            S.B. Civil Second Appeal No. 154/2019

1.     Chauthu S/o Shri Bhoramal,
2.     Kishan S/o Shri Bhoramal,
3.     Smt. Sanjya W/o Shri Chauthu,
       All are residents Of Village Bagwada Tehsil Amer, District
       Jaipur
                                               ----Appellant-Defendants
                                   Versus
1.     Mangal Chand S/o Late Shri Baluram, R/o Pandiya Ki
       Dhani (Beed), Village Bagwada, Tehsil Amer, District
       Jaipur (Deceased Pending Suit); through His Legal Heirs:-
       1/1. Smt. Santosh Devi W/o Late Mangal Chand,
       1/2. Bhagwan Sahai S/o Late Mangal Chand,
       1/3. Mukesh S/o Late Mangal Chand,
       All are R/o Pandiya Ki Dhani (Beed), Village Bagwada,
       Tehsil Amer, District Jaipur
       1/4. Smt. Sayari D/o Late Mangal Chand W/o Jagdish
       Prasad, R/o Shripura, Tehsil Amer, District Jaipur
       1/5. Smt. Seeta D/o Late Mangal Chand W/o Mukesh, R/o
       Singod, Tehsil Chomu, District Jaipur
                                                ----Respondent-Plaintiffs

For Appellant(s)         :     Mr. Ram Manohar Sharma
For Respondent(s)        :



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

04/11/2022

1. Appellant-defendants (hereafter referred to as 'defendants') have

filed this second appeal under Section 100 of C.P.C, assailing the

judgment and decree dated 21.01.2019 passed in civil first appeal

No.14/2014 (10/2014) NCV No.228/2014 by Additional District Judge,

No.2, Jaipur, District Jaipur whereby and whereunder dismissing the

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appeal affirming the judgment and decree dated 26.02.2014 passed in

civil suit No.06/2009 (146/07) by Additional Civil Judge (Jr. D.) No.1,

Jaipur, District Jaipur whereby and whereunder respondent-plaintiffs'

suit for permanent injunction in respect of a right of way through

common way of 12 feet has been decreed in following terms:-

"अतः वादीगण का वाद ववरूद्ध प्रवतवादीगण गण बागण बत बत साास्थायी वथायी निषयनिषेधाषेधाजा सज्ञा सवस्थायस्थाय बत सवीकार कर आदयश वदस्थाया जााता ह वक प्रवतवादीगण वाद पत्र कय साा सथ संललगथायी नि थायी नि नकशय म् लाल आाल आडी निषेधाी धाररस्थाय धारियों सय दवशश त शावमलाती 12 फीट चौड़य आवागमथायी नि कय राबत सतय म् वकसी प्रकार का कका कोई वथायी निमाश ण आवद थायी निहीं करय , राबत सतय कका को गण बथ संद अावा सकड़ा थायी निहीं कर् उसय एक छका कोर सय दसरय छका कोर तक खला रखय ताा वादी कय आवागमथायी नि कय सथ संसानिषेधथायी नि धारियों आवद कय उपस्थायका कोग उपभका कोग म् वकसी प्रकार का ज्ञा सवस्थायवनिषेधाथायी नि

उतपनथायी नि थायी निहीं कर् । तदथायी निसार वाल आडकी पचाश मवतश गण ब वकस्थाया जाास्थायय।"

2. Heard learned counsel for appellants and perused impugned

judgments and record.

3. It is not in dispute that partition, in respect of the joint

agricultural lands, has already been taken place between parties and

the dispute is only in respect of a common way of 12 feet wide, alleged

to be situated in between the agricultural lands, came in the respective

shares of both parties in the partition. Plaintiffs claimed that the way in

question was left for common use wherein 6 feet-6 feet land of both

parties are included and this way is available at site, which has been

used by both parties more than 50 years. Plaintiffs claimed that the

way in question is only available way to reach at common well and to

the plaintiffs' home situated in their agricultural land. Further it was

pleaded by plaintiffs that an easementary right to use this common

way has already been created to them but defendants intend to

obstruct the way of plaintiffs by raising some construction in the way,

therefore the present suit was instituted.

4. Defendants in their written statement categorically denied that

the disputed way leads to the common 'well' and to plaintiffs' house

and declining even the existence of way of 12 feet at site.

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5. The trial court, after framing issues and recording of evidence of

both parties, has recorded a fact finding that though the way in

question is not recorded in the revenue record, however from the

material available on record, more particularly Exhibit-17, which is a

compromise deed dated 01.11.1990 duly signed by both parties, the

way of 12 feet is situated at site, which was left for common use by

both parties. The existence of way is also proved by the report of Court

Commissioner 30.05.2008 (Ex.13) as well as by the report of Tehsildar

dated 04.07.2008(Ex.14). The trial court recorded a fact finding that it

is proved by the evidence that through this way in question, tractor

trolley, bullock cart etc. have movement, therefore, the width of way as

12 feet cannot be disputed. The trial court also recorded a fact finding

that defendant could not show any other alternative way, except the

way in question to reach at common 'well' and to plaintiffs' guwadi.

Trial court found that this way is common way, which is available for

both parties and on the basis of such factual matrix, appellant-

defendants were restrained not to obstruct in the common way nor to

squeeze the same and to keep it open for movement by the plaintiffs

also.

6. Defendants assailed the judgment and decree dated 26.02.2014

by way of filing first appeal. The First Appellate Court has re-considered

the entire pleadings and evidence of both parties. The First Appellate

Court after re-appreciation of evidence has observed that the existence

of 12 feet wide way at site is well proved.

7. It has been observed that where plaintiffs have adduced evidence

that this is the only way available to reach at the common 'well' and to

the plaintiffs' house. In counter, defendants could not adduce any

evidence to show that any alternative way is available for plaintiffs.

Perusal of the judgment of First Appellate Court goes to show that the

First Appellate Court has concurred with fact findings of trial court after

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re-appreciation of the evidence of both parties and then the judgment

and decree of the trial court has been affirmed and the first appeal has

been dismissed on merits vide judgment and decree dated 21.01.2019.

8. Learned counsel for appellants during the course of arguments

made a persuasive attempt to prove that the fact findings are perverse

as plaintiffs could not prove that 6 feet land out of his Khasra No.1202

is included in this way and the way in question is situated absolutely in

the agricultural lands of defendants.

9. This court finds that in the written statement filed by appellant-

defendants, they have absolutely denied about the existence of way of

12 feet. Defendants have nowhere taken a defence that the way in

question is situated at site and it is not a common way between

parties but situated only in agricultural land of defendants. The

arguments raised by learned counsel for appellants is a question of

fact, which do not arise out of the pleadings of defendants. Both courts

below have considered pleadings and evidence adduced by parties and

have recorded a fact finding that the way in question is a common way

situated in middle of the agricultural lands of both parties as well as

the way has been in use by the predecessors of both parties since

years. Such fact finding is based on evidence on record.

Re-appreciation of entire evidence, in order to draw a different

conclusion than by the trial court, which has been affirmed by the First

Appellate Court is not permissible, while exercising jurisdiction under

Section 100 CPC unless and until the fact findings of two courts below

are not established to be either perverse or based on no evidence or

suffer from misreading/non-reading of evidence. In the instant case,

learned counsel for appellants could not point out that the fact findings

in respect of existence of 12 feet way and of common use are against

evidence on record or based on surmises and conjectures in any

manner.

(5 of 7) [CSA-154/2019]

10. In Navaneethammal Vs. Arjuna Chetti [(1996)6 SCC

166], the Apex Court held as under:-

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciating the evidence just to replace the findings for the lower courts............Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the First Appellate Court was based on no material."

11. The Hon'ble the Supreme Court in 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 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

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justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

12. In case of Gurnam Singh Vs. Lehna Singh [(2019) 7 SCC

641], the Apex Court held as under:-

"Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law."

13. In case of State of Rajasthan v. Shiv Dayal [(2019)8

SCC 637], the Hon'ble Supreme Court held that a concurrent

finding of the fact is binding, unless it is pointed out that it was

recorded de hors the pleadings or it was based on no evidence or

based on misreading of the material on records and documents.

The Hon'ble Court held as under:-

"16. 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 de hors the pleadings or it was based on no evidence or it was based on misreading of material

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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 Nagpur 117 Para 43)."

14. In another case C. Doddanrayana Reddy and Ors. Vs. C.

Jayarama Reddy and ors. [(2020)4 SCC 659], wherein the

Hon'ble Supreme Court 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.

15. In view of concurrent findings of fact recorded by two courts

below, this court is not inclined to interfere with impugned

judgments, there is no force in the second appeal as no

substantial question of law arises in the matter, hence the same is

hereby dismissed. No Costs