Rajasthan High Court
Magan Singh vs Ramkhiladi And Ors on 7 November, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 534/2017
Magan Singh S/o Thandi, R/o Kanchroli Ka Pura, Bhuja Walon Ki
Dhani, Tehsil Hindaun City, Distt. Karauli Raj.
----Appellant-plaintiff
Versus
1. Ramkhiladi S/o Punya, R/o Kanchroli Burja Walon Ki
Dhani, Petrol Pump Ke Pas, Tehsil Hindaun City, Distt.
Karauli Raj.
2. Ramprasad S/o Punya, R/o Kanchroli Burja Walon Ki
Dhani, Petrol Pump Ke Pas, Tehsil Hindaun City, Distt.
Karauli Raj.
3. Mst. Prem W/o Ramkhiladi, R/o Kanchroli Burja Walon Ki
Dhani, Petrol Pump Ke Pas, Tehsil Hindaun City, Distt.
Karauli Raj.
----Respondents-defendants
For Appellant(s) : Mr. Jiyaur Rahman
For Respondent(s) : None
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
07/11/2022
1. Appellant-plaintiff has preferred this second appeal under
Section 100 of Civil Procedure Code, assailing the judgment and
decree dated 19.5.2017 passed by Additional District Judge No.1,
Hindaun City in Civil Appeal No.138/2011, affirming the judgment
and decree dated 26.11.2005 passed by Additional Civil Judge
(Junior Division) No.1, Hindaun City in Civil Suit No.118/2003
whereby and whereunder the civil suit for permanent injunction
filed by appellant-plaintiff has been dismissed and the counter
claim of respondents-defendants has been decreed partially in
following terms:-
(2 of 4) [CSA-534/2017]
"वादी का वाद ववरुद्ध प्रव प्रतिवादीगण गण बागण ब प्रति बत सा स्थायी थायी वादायी व्यादे व्यादेशा यादेशा खादेशा खारादेशा खारिज
वक स्थाया जा प्रतिा है । प्रव प्रतिवादीगण दाादेशा खारिा प्रप्रस प्रस्तु प्रति काुत काउतुत काउंटादेशा खारि उंटर कायी व्यादेम ववरुद्ध वादी ुद्ध वादी आतुत काउं्ध वादी आंश व्यादेशक
रूप सायी व्यादे सीकाादेशा खारि वक स्थाया जा प्रतिा है प्रतिथा वादी क को पागण बतुत काउंध वक स्थाया जा प्रतिा है क की वहै
गण ब प्रतिादेशा खारिफ दक्षिण दद व्यादेशा क की औादेशा खारि वकसी प्रकाादेशा खारि का नवीन वनमनिर्माण का स्थायण कार्य वनकास व
नाली ुद्ध वादी आदद न वनकालायी व्यादे । यादेशा खरनिर्मा पषिकाादेशा खारि अपना अपना वहैन कादेशा खारिन करेंगायी व्यादे। "
2. Heard counsel for appellant, perused the impugned
judgments and record.
3. Both Courts below have concurrently recorded a fact finding
that plaintiff is owner of the plot measuring 60X67 square feet
situated at Village Kanchroli, Tehsil Hindaun City, District Karauli
but it is not established that he left two feet land towards East and
Northern side and one feet land towards southern side out of his
land. It has concurrently been held by both Courts below that
plaintiff has no right to open spout, drainage towards the land of
defendants which is situated in southern side of plaintiff's
property. In view of such fact findings, plaintiff's suit for
permanent injunction claiming right to have open his windows,
spouts and drainage on the land left by him out of his plot has
been dismissed and the counter claim of defendants has been
decreed in terms mentioned hereinabove.
4. This Court finds that fact findings of both Courts below are
based on appreciation/ re-appreciation of evidence on record and
counsel for appellant could not point out any perversity in fact
findings nor could show that findings are either based on no
evidence or suffer from misreading/ non-reading of evidence or
otherwise contrary to settle the proposition of law. Thus, fact
findings do not give rise to any substantial question of law.
(3 of 4) [CSA-534/2017]
5. It is trite law that the High Court while exercising its
jurisdiction under Section 100 CPC is not required to appreciate
the entire evidence in law from different conclusion then recorded
by two Courts below unless and until fact findings are either
dehors to the pleading or contrary to the settled proposition of law
or leads to any miscarriage of justice.
6. 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]"
7. 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
(4 of 4) [CSA-534/2017]
reached such a finding, then High Court is not required to interfere
with such fact findings while exercising its jurisdiction under
Section 100 CPC.
8. 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.
9. All pending application(s), if any, stand(s) disposed of.
10. Record of both Courts below be sent back forthwith.
(SUDESH BANSAL),J
NITIN /85
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