Rajasthan High Court
Ramesh vs Chhote And Anr on 4 November, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 797/2017
Ramesh S/o Ghude, R/o Village Jaghina, Tehsil & District
Bharatpur
----Appellant/Plaintiff
Versus
1. Chhote S/o Kanha, R/o Papdi Mohalla, Bharatpur
2. Girraj S/o Shivcharan, R/o Astawan Ka Nagla, Tehsil &
District Bharatpur
----Respondents/Defendants
For Appellant(s) : Mr. Umashanker Pandey with
Mr. Rajeev Kumar Sharma
For Respondent(s) : Mr. Bipin Gupta
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
04/11/2022
1. Appellant-plaintiff has preferred this second appeal under
Section 100 of the Code of Civil Procedure (CPC), assailing the
judgment and decree dated 18.09.2017 passed in Civil First
Appeal No.42/2017 (766/2014) by the Court of Additional District
Judge No.1, Bharatpur (Raj.), dismissing the appeal and affirming
the judgment and decree dated 24.07.2010 passed in Civil Suit
No.125/2002 (590/1997) (225/2002) by the Court of Additional
Civil Judge (Jr. Division) No.1, Bharatpur (Raj.), whereby and
whereunder plaintiff's suit for permanent injunction has been
dismissed on merits.
2. Heard counsel for both parties and perused the impugned
judgments & record.
(2 of 4) [CSA-797/2017]
3. It appears from the record that plaintiff claimed absolute
right of cleaning over the area, situated nearby Village Jaghina,
District Bharatpur, commonly know as Circle Khabrobi. Plaintiff
claimed his right without any force of law just alleging that for
years his predecessors are doing cleaning work in that area.
4. Both courts below have observed that defendant No.2,
through registered sale deed dated 03.02.1997, has purchased
rights of cleaning of that area from one Mangal. It has come on
record that at one point of time, plaintiff entrusted the rights of
cleaning of his area to Mangal but rights claimed by plaintiff, were
revoked later on. There is no such evidence on record regarding
revocation of the rights.
5. Otherwise also, this Court is of considered opinion that in
absence of any legal right, plaintiff is not entitled for any such
injunction and both courts below have not committed any illegality
or jurisdictional error in dismissing the plaintiff's suit.
6. Counsel for appellant, could not point out any perversity in
fact findings nor could show that fact findings are based on no
evidence or either suffer from misreading/ non-reading of
evidence and the same do not give rise to any substantial
questions of law. The substantial question of law are sine-qua-non
to exercise the jurisdiction of the High Court under Section 100 of
CPC.
7. In case of Santosh Hazari Vs. Purushottam Tiwari
[(2001) 3 SCC 179] the Supreme Court Court held as under:-
"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
(3 of 4) [CSA-797/2017]
way, insofar as the rights of the parties before it are
concerned. To be a question of law "involving in the
case" there 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 circumstances 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
judicios balance between the indispensable obligation
to do justice at all stages and impelling necessity of
avoiding prolongation in the life of any lis."
8. 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
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]"
9. 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
(4 of 4) [CSA-797/2017]
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.
10. 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.
11. All pending application(s), if any, stand(s) disposed of.
12. Record of courts below be sent back.
(SUDESH BANSAL),J
Sachin/88
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