Radhe Shyam Son Of Shri ... vs Shri Kesar Devi
2022 Latest Caselaw 6546 Raj/2

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

         S.B. Civil Second Appeal No. 104/1988

1.   Radheshyam Son of Shri Kanhaiyalal
2.   Om Prakash (Since deceased)
     2/1. Smt. Munni Devi Wd/o Late Shri Om Prakash
     2/2. Deepak S/o Late Shri Om Prakash
     2/3. Kamlesh S/o Late Shri Om Prakash
     2/4. Jyoti D/o Late Shri Om Prakash
     All Resident of Khatushyamji, Tehsil Dantaramgarh, District
     Sikar
3.   Gajanand son of Shri Shishpal (Since deceased)
     3/1. Smt. Magan Devi Wd/o Late Shri Gajanand
     3/2. Hari Shankar
     3/3. Bhavani Shankar
     3/4. Vasudev
     3/5. Raj Kumar
     All sons of Late Shri Gajanand
4.   Devi Dutt son of Shri Laduram (since deceased)-
     4/1. Smt. Jadav Devi wd/o Late Shri Devi Dutt
     4/2. Shri Sushil Kumar Sharma (since deceased)
     4/2/1. Smt. Radha Devi Wd/o Late Shri Sushil Kumar
     4/2/2. Shri Mahesh Kumar S/o Late Shri Sushil Kumar
     4/2/3. Shri Dinesh Kumar s/o Late Shri Sushil Kumar
     4/2/4. Madhu Devi d/o Late Shri Sushil Kumar
     4/3. Shri Sunil Kumar Sharma
     4/4. Shri Anil Kumar Sharma
     All sons of Late Shri Devi Dutt
     4/5. Smt. Pushpa Devi
     4/6. Smt. Banarasi Devi
     4/7. Smt. Lalita Devi
     4/8. Smt. Neeta Devi
     All daughters of Shri Devi Dutt and all residents                   of
     Khatushyamji, Teh. Dantaramgarh, District Sikar
5.   Govind Ram (since deceased)
     5/1. Madanlal Sharma son of Late Shri Govind Ram residents
     of Khatushyamji, Tehsil Dantaramgarh, District Sikar
6.   Khuda Bux son Shri Nabab Teli Since deceased (Legal Heirs
     impleaded as Respondents No.7 to 9)

All residents of Khatushyamji, Tehsil Dantaramgarh, District Sikar

7. Radhey Shyam son of Shri Banwarilal Sharma (since deceased) 7/1. Smt. Bhagwati Devi wd/o Late Shri Radheshyam 7/2. Naresh Sharma son of Late Shri Radheshyam All residents of Khatushyamji, Tehsil Dantaramgarh District Sikar.

----Appellants Versus

1. Shri Keshar Dev (since deceased)-

1/1. Smt. Durga Devi Wd/o Late Shri Keshar Dev 1/2. Rajendra Kumar Sharma 1/3. Sohanlal Sharma

(2 of 38) [CSA-104/1988]

1/4. Gordhanlal Sharma 1/5. Sharvan Kumar Sharma All sons of Late Shri Keshar Dev and residents of Khatushyamji, Teh. Dantaramgarh, District Sikar 1/6. Smt. Hem Lata w/o Shri Chittaranjan Lal Sharma, R/o Village & Pest- Hashpur, Tehsil Srimadhopur, District Sikar 1/7. Smt. Gayatri Devi w/o Shri Sarat Kumar Joshi r/o Chawani Bazar Jhunjhunu, District Jhunjhunu

2. Govind Ram son of Shri Soji Ram Jat

3. Satyanarainn son of Shri Sanwar Ram Sharma

4. Deepu Ram son of Shri Khemaram Jat Names of both the respondents Satyanarain & Deeparam struck off.

5. Jhuntha Ram (since deceased) s/o Shri Gadu Ram Meena-

5/1. Smt. Sakari D/o Late Shri Jhuntha Ram 5/2. Shri Ram Swaroop adopted son of Shri Jhuntha Ram All residents of Khatushyamji, Teh. Dantaramgarh, District Sikar

6. Mali Ram son of Gadu Ram Meena (since deceased)-

6/1. Shri Ram Ratan 6/2. Shri Babulal (deceased) 6/2/1. Shanti Devi Mother of Deceased Babu Lal as already on record as Respondent No.6/6 6/2/2. Supayar d/o Shri Babu Lal 6/2/3. Pawan Meena s/o Shri Babu lal 6/2/4. Jitendra S/o Shri Babu lal 6/3. Shri Ashok Kumar 6/4. Shri Narendra 6/5. Shri Mukesh All sons of Late Shri Mali Ram r/o Khatushyamji, Sikar 6/6. Smt. Shanti Devi Wd/o Late Shri Mali Ram r/o Khatushyamji, sikar 6/7. Smt. Supriya w/o Shri Mange, r/o Kota, District Jaipur 6/8. Smt. Narbada Devi w/o Shri Ramesh, r/o Kota District Jaipur

7. Smt. Achuki Teli w/o Late Shri Khuda Bux

8. Shri Hazari Kha Teli S/o Late Shri Khuda Bux

9. Shri Babu Kha Teli S/o Late Shri Khuda Bux All residents of House NO.95, Mohalla Teliyan, Memawat Wali Gali, Khatu Shyamji, District Sikar

----Respondents

For Appellant(s) : Mr. J.P. Goyal Sr. Advocate assisted by Ms. Jyoti Swami Mr. R.P Agarwal For Respondent(s) : Mr. M.M. Ranjan Sr. Advocate assisted by Mr. Daulat Sharma and Mr. Hemendra Sharma

(3 of 38) [CSA-104/1988]

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

RESERVED ON: 01/09/2022 PRONOUNCED ON: October 11th,2022 REPORTABLE

1. The instant second appeal under Section 100 of Code of Civil

Procedure arises out of a Civil Suit for permanent injunction

bearing No.39/1976 (198/1980) titled Keshar Dev and Ors. Vs.

Radheshyam and Ors., which was dismissed by the Munsif and

Judicial Magistrate, Dantaramgarh, District Sikar vide judgment

and decree dated 21.12.1981, but on filing Civil First Appeal

thereagainst bearing No.7/1982 (33/1985), before the Court of

Additional District Judge, Sikar, the same has been allowed vide

judgment and decree dated 13.05.1988 and whereunder while

setting aside the judgment and decree dated 21.12.1981, the civil

suit filed by respondents-plaintiffs has been decreed in following

terms:-

"उक्त व वि वििचन कि प्रकप्रकाश मा अं अपें अपीअपीलप्रकाीलारपीलार्थीगण कथीगण की अं अपें अपीअपील व विरुद्ध प्रिरुद्ध प्रतवप्रकाीलारपीलार्थीगण -प्रवप्रति विप्रकावादें अपीगण मव वादननं नवप्रकावप्रकाअपीलव कप्रका खचप्रका् कि स विें अपीकप्रकार कथीगण की जप्रकाप्रतिें अपी ही ए वि एवं व वििदप्रकान व विचप्रकारण नवप्रकावप्रकाअपीलव कप्रका चननतप्रतिें अपीग्रसप्रति वनण् व वि वव डििकथीगण की ववादनप्रका एवंक २१.१२.१९८१ अं अपप्रकासप्रति वकवप्रका जप्रकाप्रतिप्रका ही ए वि एवं विप्रकावादें अपीगण कप्रका विप्रकावाद व विरुद्ध प्रवप्रति विप्रकावादें अपीगण -प्रिरुद्ध प्रतवप्रकाीलारपीलार्थी सीलारप्रकावें अपी वनषिनिषेधप्रकाषेधाजप्रका हिप्रतिन इस प्रकप्रकार वव डििकथीगण की वकवप्रका जप्रकाप्रतिप्रका ही वक प्रवप्रति विप्रकावादें अपीगण व वि विप्रकाववादप्रति आम रप्रकासप्रतिप्रका कथीगण की भवम जन विप्रकावाद कि सअपील सलगन मप्रकानवचत्र मा अपीलप्रकाअपील र एवंग सि अ एवंवकप्रति वकवप्रका गवप्रका ही, ं अपर वकसें अपी प्रकप्रकार कप्रका कनई वनमप्रका्ण कप्रकाव् नहहीं करि प्रतिीलारप्रका रप्रकासप्रतिि कथीगण की भवम ं अपर अवप्रतििकमण नहें अपी करि न हें अपी कनई आ विप्रकागमन मा में बप्रकानिषेधप्रका व डिप्रकाअपीला, सप्रका वि् जवनक चतक वि रप्रकासप्रतिप्रका कन खनअपीलप्रका रखा ।"

2. The Coordinate Bench of this Court, vide Order dated

23.03.1993 framed following substantial question of law for

consideration in the present second appeal:

"Whether the finding of learned first appellate court that the land sold to appellants was a part of the public way/chowk of the village is perverse?"

                                                    (4 of 38)                     [CSA-104/1988]




3.      In   order      to       consider        and   decide        the     aforementioned

substantial question of law, the seminal facts of the present case

as culled out from record are required to be noticed as under:

3.1 Initially, a Civil Suit for permanent injunction was filed on

06.04.1976 by four persons (respondents No.1 to 4 herein)

against seven defendants (appellants No.1 to 7 herein), stating

inter alia that at Village Khatushyamji, there is a public

Dharmshala for pilgrims to stay. In front of the dharmashala,

there is a public way and chowk, which is about 55ft in width and

thereafter, opposite side guaris and badas of Jhuntha Ram and

Mali Ram are situated as also adjacent thereto, guaris of other

persons are also situated and gates of guaris and badas open on

the public way. It was stated that in between the public

dharmshala and guaris & badas of Juntha Ram and Mali Ram as

also of other persons, there is a public way from Khatu Ringas to

Khatu Dantaramgarh, which is the main road of village. It was

stated that defendants, in collusion with the Gram Panchayat,

Khatushyamji are trying to raise illegal and unauthorized

construction over the land of public way and chowk and if such

constructions are allowed to be made, same would obstruct public

transport and would narrow the public way. Therefore, plaintiffs

jointly made a prayer for permanent injunction against

defendants, to not obstruct over the land of public way and not to

make any construction on any part of the public way.

3.2 After institution of the civil suit, two persons Jhuntha Ram

and Mali Ram also joined as plaintiffs No.5 & 6 and Gram

(5 of 38) [CSA-104/1988]

Panchayat, Khatushyamji was also added as defendant No.8 and

accordingly, amended plaint was filed on 17.01.1977.

3.3 Thereafter, plaint was got amended by addition of Para No.

4(क) to the effect that the Gram Panchayat, Khatushyamji sold

part of the public way in form of different plots to defendants No.1

to 7 in an improper, unauthorized and illegal manner and executed

separate seven sale deeds/pattas in their favour. The Gram

Panchayat, Khatushyamji, is bound to keep the public way

unobstructed and it is not authorized to sell land of the public way,

therefore, sale deeds or pattas executed in favour of defendants

No.1 to 7 are void ab initio & ineffective and on the basis of such

sale deeds/pattas, defendants No.1 to 7 did not acquire any rights

over the land of public way.

Note: It may be worthy to notice here that while seeking amendment in the plaint, no prayer was added for seeking declaration of such seven sale deeds/pattas of Gram Panchayat, Khatushyamji issued in favour of defendants No.1 to 7 as illegal, null and void. (This is important to notice here for the reason that after discussion of facts and evidence in latter part of the judgment, it would transpire that the challenge to pattas of defendants at the behest of plaintiffs No.5 and 6 has already been failed before the Court of Additional Collector, Sikar, vide judgment dated 12.03.1976 & District Collector, Sikar, vide judgment dated 20.04.1976. All sale deeds/pattas have been found to be issued by way of conducting public auction, after following the due process of law and were valid, therefore, prayer for seeking declaration of these sale deeds/pattas as null and void has become barred by limitation of three years on the date of filing the amended plaint on 13.11.1981. Therefore, plaintiffs are not bona fide in pursuing civil suit for permanent injunction before the civil court while hiding their failure before the Court of Additional Collector and further challenging pattas, before the civil court,

(6 of 38) [CSA-104/1988]

after expiry of the period of limitation of three years to declare these sale deeds/pattas as null and void.)

3.4 Defendants No.1 to 7, in their joint and separate written

statements, contended that in front of dharmshala, after leaving a

20ft open space, there is a public way of 30ft wide and thereafter,

the land in question, which has been sold by the Gram Panchayat,

Khatushyamji to defendants, is situated and then towards the

south side thereof, bada of Jhuntha Ram is situated, which has its

opening towards the western side, similarly guari of Mali Ram is

situated thereafter and which has its opening towards west and

south. It was categorically denied that gates of guaris and badas

of Jhuntha Ram and Mali Ram have any opening towards northern

side on the main public Road of Khatu Ringas. Defendants

categorically contended that the land in question sold by Gram

Panchayat, Khatushyamji to them through public auction and for

which pattas have been issued by the Gram Panchayat in their

favour, is not a land of public way. The land in question, allotted to

defendants No.1 to 7 is wholly different from the land of public

way and situated towards southern side of the public way.

Defendants have purchased their lands from Gram Panchayat,

Khatushyamji in auction and have obtained possession thereof and

by raising construction of shops on their purchased land, the width

of public way of 30ft wide remains intact. Plaintiffs have made out

a wholly false case, creating a concocted story that the part of

land of the public way has been sold to defendants, therefore, the

civil suit for permanent injunction is liable to be dismissed.

(7 of 38) [CSA-104/1988]

It was also contended that plaintiff No.5-Jhuntha Ram and

plaintiff No.6-Mali Ram challenged pattas of defendants, by way of

filing two separate revision petitions before the Court of Additional

Collector/District Collector, Sikar. Revision petition, filed by plaintiff

No.5-Jhunta, has been dismissed as withdrawn, accepting the

pattas of defendants as valid, vide Order dated 12.03.1976. The

revision petition filed by plaintiff No.6-Mali Ram has been

dismissed on merits vide Order dated 20.04.1976 and pattas of

defendants have been found to be issued in accordance with law.

Indeed, plaintiffs No.5 and 6 have their separate entrance to their

guaris and badas from west side and have no entrance/gate

towards the land allotted to defendants No.1 to 7. It was stated

that plaintiffs No.1 to 4 have no house or land nearby the land

sold to defendants and have no locus standi to file the present civil

suit. Plaintiffs have filed the present civil suit maliciously with

ulterior motive, which is liable to be dismissed with costs.

3.5 It is worthy to notice that the learned Presiding Officer of the

trial court, himself visited the disputed site twice. First site

inspection report with map is noted by the Presiding Officer in

order-sheet dated 29.05.1976 (in the file of temporary injunction

bearing No.22/1976) and second site inspection report of the

another Presiding Officer, dated 09.11.1980, is also available in

the file of original civil suit. In both site inspection reports, the

main public road of Khatu Ringus Road, having 30ft width is found

available at site and the land in question, allotted to defendants is

different from the public road and is situated on southern side,

after leaving the 30ft wide road intact.

(8 of 38) [CSA-104/1988]

3.6 Learned trial court, after framing issues and recording

evidence of both parties, decided Issues No.1 & 3 against plaintiffs

and after appreciation of entire evidence of both parties, coupled

with the site inspection reports of presiding officer, recorded

findings of fact that lands in question, allotted by the Gram

Panchayat, Khatushyamji to defendants No.1 to 7 is not part of

the public way and further 30ft wide public way is available at site,

which remains unaffected by such allotment of land in question.

The land sold out by the Gram Panchayat to defendants (through

pattas Ex-A1 to A7) is situated towards southern side of the public

way and that land is neither part of the public way nor such

allotment obstructs the public way in any manner. The trial court

also observed that plaintiffs miserably failed to prove the width of

the public way/chowk as 55ft wide in front of the dharmshala and

since the land allotted to defendants is neither part of any public

way nor of any chowk, plaintiffs have no locus standi/right

regarding land in question allotted to defendants. It was observed

that plaintiff No.5-Jhuntha Ram and plaintiff No.6-Mali Ram have

falsely stated that their gates/entrance of guaris and badas would

be obstructed, if defendants are allowed to raise construction on

land allotted to them, rather the entrance to guaris of Jhuntha

Ram and Mali Ram is from the western side and not through the

land in question on northern side. With such fact findings, the trial

court dismissed the plaintiffs' suit on merits vide judgment and

decree dated 21.12.1981.

3.7 On filing first appeal, the learned Additional District Judge,

Sikar vide impugned judgment and decree dated 13.05.1988,

reversed the finding and judgment of the trial court by giving its

(9 of 38) [CSA-104/1988]

own observations and reasoning, decreed the plaintiffs' suit. The

first appellate court, vide judgment and decree dated 13.05.1988,

has treated the land in question allotted to defendants No.1 to 7-

appellants by the Gram Panchayat, Khatushyamji as part of the

public way and thereby has directed defendants-appellants not to

raise any construction and further not to make any trespass over

the public way as well as not to cause any obstruction in

movement on public way as also to keep the public way and

chowk open. This judgment and decree of the first appellate court

dated 13.05.1988 has been challenged by defendants-appellants

by way of filing the instant second appeal.

4. Learned Senior Counsel, Mr. J P Goyal, appearing for and on

behalf of defendants-appellants has argued that the first appellate

court committed grave perversity in treating lands allotted to

defendants by the Gram Pachayat, Khatushyamji, as a part of

public way and thereby directing defendants not to raise

construction on the land allotted to them. He submitted that

according to the evidence available on record, learned trial court,

has rightly concluded that the land in question allotted to

defendants is not part of the public way, rather the public way of

30ft wide remained intact and available at site. The land allotted

to defendants are situated southern side after leaving 30ft wide

public way and the allotted land to defendants, neither obstructs

the public way nor movement on the public way. The first

appellate court has drawn an erroneous presumption contrary to

the evidence on record and findings of the trial court just being

swayed by religious sentiments. Learned counsel for appellants-

defendants submitted that fundamentally plaintiffs instituted the

(10 of 38) [CSA-104/1988]

present civil suit for permanent injunction, claiming that

defendants are inclined to raise construction, encroaching upon

the land of public way and chowk, in front of the dharmshala.

Whereas, it has come on record that the width of public road in

front of the dharmshala is 30ft wide, that too after leaving 20ft

wide open space in front of the dharmshala, 20ft open space

situated in front of dharmshala has already been allotted by Gram

Panchayat to dharmshala. Plaintiffs' case that width of the public

road and chowk is 55ft wide in front of dharmshala, is not proved

by any evidence and land allotted to defendants is situated, after

leaving 20ft wide open space in front of the dharmshala, then

after, leaving 30ft wide public way towards southern side. Further

by allotment of land in question to defendants, the entrance of

guaris and badas of plaintiffs No.5 and 6 Jhuntha Ram and Mali

Ram also do not obstruct in any manner, as gates/entrance of

their guaris and badas are from western side and the challenge to

pattas of defendants, by plaintiff No.5 has already been dismissed

as withdrawn and the challenge by plaintiff No.6 has already been

dismissed on merits, wherein the issuance of pattas to

defendants-appellants has been held valid and in accordance with

law, therefore, the trial court rightly dismissed the civil suit for

permanent injunction, which was mainly pursued by plaintiffs No.5

and 6 only, in a malicious manner. But the first appellate court has

committed perversity and jurisdictional error in reversing the fact

finding and decree of the trial court and has decreed the plaintiffs'

suit under an erroneous assumption and pretext. According to

appellants-defendants, observations and findings of the first

appellate court to treat the land sold/allotted by the Gram

(11 of 38) [CSA-104/1988]

Panchayat, Khatushyamji to defendants is a part of public

way/chowk, are wholly perverse and based on no evidence, as

such the judgment and decree dated 13.05.1988 passed by the

first appellate court is unsustainable in the eye of law and liable to

be quashed, so as to restore the judgment and decree of the trial

court dated 21.12.1981, affirming the dismissal of the civil suit for

permanent injunction filed by respondents-plaintiffs.

5. Per contra, learned senior counsel, Mr. M M Ranjan,

appearing for and on behalf of respondents-plaintiffs, has

supported the impugned judgment dated 13.05.1988 and

submitted that findings of the first appellate court are not

perverse in any manner, therefore, are not required to be

interfered with by the High Court while exercising its jurisdiction

under Section 100 CPC and therefore, the instant second appeal is

liable to be dismissed.

6. This Court, first would like to consider the scope and

jurisdiction of the High Court while exercising its jurisdiction under

Section 100 CPC, to interfere with the finding of the first appellate

court, when recorded after reversal of fact findings of the trial

court.

7. It is well settled law as laid down by the Hon'ble Supreme

Court in catena of judgments that the jurisdiction of the High

Court to entertain the second appeal under Section 100 CPC after

the 1976 amendment, is confined only when the second appeal

involves substantial question of law. The existence of "Substantial

Question of Law" is sine quo non for exercise of the jurisdiction by

the High Court under Section 100 CPC. The High Court while

deciding the second appeal under Section 100 CPC, cannot and

(12 of 38) [CSA-104/1988]

should not act like a first appellate court and re-appreciation of

entire evidence is not permissible just to draw a different

conclusion, other then the courts below, unless conclusion of lower

court is not perverse & dehors to the settled proposition of law.

8. In a recent judgment of Hon'ble Supreme Court, delivered in

case of Gurnam Singh Vs. Lehna Singh [(2019) 7 SCC 641],

while placing reliance upon a celebrated judgment of Hon'ble the

Supreme Court in case of Kondiba Dagadu Kadam Vs.

Savitribai Sopan Gujar [(1999) 3 SCC 722], it was held: "In a

second appeal under Section 100 CPC, the High Court cannot

substitute its own opinion for that of the first appellate court,

unless it finds that the conclusions drawn by the lower court were

erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

Or

(ii) Contrary to the law as pronounced by the Supreme Court;

Or

(iii) Based on inadmissible evidence or no evidence.

It was further observed by the Hon'ble Supreme Court in

case of Kondiba Dagadu Kadam (Supra) that 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. It was

further observed that the trial court could have decided differently

is not a question of law justifying interference in second appeal.

9. In case of Santosh Hazari Vs. Purushottam Tiwari

[(2001) 3 SCC 179], the Honb'le Supreme Court discussed the

jurisdiction of the first appellate court to reverse or affirm findings

(13 of 38) [CSA-104/1988]

of the trial court. It was observed that first appeal is a valuable

right of parties and unless restricted by law, the whole case

therein is open for rehearing both on questions of fact and law. It

was held that the task of the first appellate court is an easier one,

while affirming the finding of the trial court as in that situation,

when the first appellate court agreeing with the facts of the trial

court, is not required to restate the effect of evidence or reiterate

the reasons given by the trial court and expression of general

agreement by the first appellate court with reasons given by the

trial court, would ordinarily be suffice, but while writing a

judgment of reversal, the first appellate court must remain

conscious of two principles. Firstly, the findings of fact based on

conflicting evidence arrived at by the trial court must weigh with

the appellate court, more so when the findings are based on oral

evidence recorded by the same Presiding Judge who authors the

judgment. Secondly, while reversing a finding of fact the appellate

court must come into close quarters with the reasoning assigned

by the trial court and then assign its own reasoning for arriving at

different finding.

The Hon'ble Supreme Court in clear words has observed that

the first appellate court continues, as before, to be a final court of

fact, however, the first appellate courts are under the additional

obligation, while reversing the finding of trial court to give its

conscious application of mind to the reasoning assigned by the

trial court and then to assign its own reasoning, for arriving at

different findings. This additional obligation casts upon the first

appellate court, while reversing the finding of trial court, is

necessary under the scheme of the present Section 100

(14 of 38) [CSA-104/1988]

substituted in the Code, to satisfy the court of appeal, hearing a

further appeal that the first appellate court had discharged its

duty as expected from it.

10. It may be noticed here that the principle of law as

enunciated by the Hon'ble Supreme Court in case of Santosh

Hazari (Supra) in respect of casting a duty/obligation on the first

appellate court, more particularly, while reversing the fact findings

of the trial court, has time and again be followed in umpteen

number of judgments by the Hon'ble Supreme Court. It is also

worthy to note here that learned counsel for respondents has also

placed reliance on this judgment in the present second appeal.

11. The Hon'ble Supreme Court in case of Damodar Lal Vs.

Sohan Devi [(2016) 3 SCC 78], while dealing with the case of

concurrent findings of courts below on the issue of material

alteration in the tenanted property and while examining the

concept of "Perversity", observed that the wrong finding of courts

below should stem out of a complete misreading of evidence or it

should be based only on conjectures and surmises. Safest

approach on perversity is the classic approach on the reasonable

man's on interference on the facts. To him, if the conclusion on the

facts and evidence made by the court below is possible, there is

no perversity. If not, the finding is perverse. Inadequacy of

evidence or a different reading of evidence is not perversity. The

Hon'ble Supreme Court, in this case placed reliance on its previous

judgment delivered in case of Kulwant Kaur Vs. Gurdial Singh

Mann [(2001) 4 SCC 262], where in Para No.13, it was held as

under:

(15 of 38) [CSA-104/1988]

"34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had Section 103 of the Code which reads as below:

'103. Power of High Court to determine issues of fact --In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal--

(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100.' The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law.

We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."

12. Learned counsel for appellants-defendants has placed

reliance on the judgment of the Hon'ble Supreme Court in

(16 of 38) [CSA-104/1988]

Sebastiao Luis Fernades Vs. K.V.P Shastri [(2013) 15 SCC

161], wherein the Supreme Court affirmed the interference by the

High Court with concurrent findings of the trial court and the first

appellate court, where findings of fact are perverse and based on

wrong assumptions of fact, non-appreciation of pleadings and

evidence on record as also by wrong placement of burden to

prove. The Supreme Court, referred to relevant portion of Para 8

of the judgment delivered in Hira Lal Vs. Gajjan [(1990) 3 SCC

285]:-

"8....If in dealing with a question of fact that the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure. When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision...."

The Hon'ble Supreme Court also reiterated principles relating

to Section 100 CPC, which were summarized in Para 24 of the

judgment in Hero Vinoth Vs. Seshammal [(2006) 5 SCC 545],

which is extracted as under:

"24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a

(17 of 38) [CSA-104/1988]

principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

13. The scope of interference with the finding of fact is well

settled, as discussed by the Hon'ble Supreme Court in recent

judgment in State of Rajasthan Vs. Shiv Dayal [(2019) 8 SCC

637]:

"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 dehors the pleadings or it was based on no evidence or it was based on misreading of

(18 of 38) [CSA-104/1988]

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 vs. Dashrath Narayan Chilwelkar [AIR (1943) Nag 117] Para 43)."

14. The Hon'ble Supreme Court recently in case of C

Doddanarayanan Reddy Vs. C Jayarama Reddy [(2020) 4

SCC 659], after pondering over principles as expounded in case

of Kondiba Dagadu Kadam (Supra), Santosh Hazari (Supra)

and Shiv Dayal (Supra), observed that the High Court cannot be

said to have erred in interfering with findings of fact, may be

concurrent or reversal, if findings by the court below have been

recorded on the basis of misreading of material documents or

recorded against any provision of law and where any judge acting

judicially and reasonably could not have reached such a finding.

15. Keeping in mind the scope and jurisdiction of the High Court

to consider the perversity in findings of the first appellate court,

while exercising its jurisdiction under Section 100 of CPC, now

focus is on the substantial question of law, mentioned hereinabove

and which falls for consideration in the present second appeal.

16. Having considered the fact findings recorded by the trial

court in its judgment and decree dated 21.12.1981 and findings of

reversal as recorded by the first appellate court in the impugned

judgment and decree dated 13.05.1988, more particularly, in

respect of reaching to a conclusion by first appellate court that the

land sold by the Gram Panchayat, Khatushyamji, to defendants, is

part of a public way/chowk, and therefore, decreed the civil suit

for permanent injunction against defendants-appellants, this Court

(19 of 38) [CSA-104/1988]

observed following flaws/perversity/illegality and jurisdictional

error on the part of the first appellate court, while passing the

judgment and decree dated 13.05.1988:

(i). First Appellate Court relied upon the oral evidence of

PW-1 (Jhuntha Ram-plaintiff No.5) and PW-2(Mali Ram-

Plaintiff No.6) to observe that land in question allotted to

defendants is part of the public way and if shops are allowed

to be constructed by defendants on their respective plots, the

width of the public way would be squeezed and narrowed

down. The first appellate court ignored admission of plaintiffs

No.5 & 6 (PW-1 & PW-2), which were noticed by the trial court

that main gate/entrance of their guaris and badas is from

western side and not from northern side towards the main

Khatu Ringas Road, where plots have been allotted to

defendants No.1 to 7 by the Gram Panchayat.

(ii) The first appellate court neither considered the evidence

of PW-1 and PW-2 as a whole, nor considered that their

evidence is wholly contradictory to their basic grievances

which are personal in nature. In fact, from contentions of

plaintiffs No.5 & 6, as available on record, it stands clear that

virtually they claimed their personal grievances against the

allotment of land in question to defendants No.1 to 7, alleging

inter alia that the land in question is used by them for their

own purposes. Learned trial court has rightly noticed the

background of the impleadment of plaintiffs No.5 & 6 to the

present civil suit for permanent injunction.

(20 of 38) [CSA-104/1988]

(iii) The first appellate court has skipped to notice all such

factual matrix which is apparent from the record that in fact,

initially the present suit for permanent injunction was

instituted by plaintiffs No.1 to 4, claiming a case that

defendants No.1 to 7 are trying to raise construction

encroaching upon the public way/chowk, situated in front of

the public dharmshala. None of plaintiffs, out of plaintiffs No.1

to 4 have appeared as witness to prove pleadings of plaint to

the effect that the width of public road, in front of the public

dharmshala, is 55ft wide. Later on, plaintiff No.1 Keshar Dev

withdrew himself from the present civil suit seeking deletion of

his name by moving an application dated 15.05.1981 and the

trial court allowed the application. Plaintiffs No.5 & 6, Jhuntha

Ram and Mali Ram, joined the plaint, by way of moving an

application under Order 1 Rule 10 CPC. In their application,

plaintiffs No. 5 & 6 never claimed the land allotted to

defendants as part of public way, but their contention was that

the gate of the guari of Jhuntha Ram opens towards northern

side on the land of public way, and chowk where the Gram

Panchayat, Khatushyamji allotted the land to defendants and

this land is used by Jhuntha Ram for tethering his cattle. He

used the portion of land in question on occasions of marriage,

parties, death and sorrow. Similarly, Mali Ram (plaintiff No.6)

contended that main gate of his nohra opens towards the

northern side and he tie his cattle and put cattle-carts as well

as use the land in question for light, air and water. It was

contended in the application that this place is used for

organizing the Mela of Nag Panchami. The application under

(21 of 38) [CSA-104/1988]

Order 1 Rule 10 CPC was allowed by the trial court and

Jhuntha Ram and Mali ram came to be added as plaintiffs No.5

& 6 in the present civil suit.

(iv) Plaintiff No.5-Jhuntha Ram and Plaintiff No.6-Mali Ram,

before their impleadment in the present civil suit, had

challenged the allotment of land in question by the Gram

Panchayat, Khatushyamji in favour of defendants, by way of

filing revision petitions against Pattas issued in favour of

defendants, before the Court of Additional Collector/District

Collector, Sikar. The Revision Petition No.50/1975 filed by

plaintiff No.5-Jhuntha Ram was dismissed as withdrawn vide

Order dated 12.03.1976. The Revision Petition No.13/1976

filed by plaintiff No.6-Mali Ram was dismissed on merits by

the Court of District Collector, Sikar (Exhibits A8 & A9).

(V) In the Order dated 20.04.1976, passed by the District

Collector, Sikar after hearing both parties, it was clearly held

that land in question was sold by the Gram Panchayat to

defendants in open auction and after following the due

process of law. Public notices were issued and prescribed

procedure was followed before conducting the public auction

to sell the land in question. Thus, the allotment of land in

question in favour of defendants was already held lawful and

valid by the competent authority, it means by the District

Collector after holding the inquiry and recording the evidence

of both parties. The judgment dated 20.04.1976 passed by

the District Collector had attained finality.

(vi) The allotment of land in question to defendants was

again challenged in the present civil suit for permanent

(22 of 38) [CSA-104/1988]

injunction, by way of seeking addition of Para 4(क) and after

allowing the application for amendment, the amended plaint

was filed on 13.11.1981. According to which it was contended

that the Gram Panchayat sold the part of public way to

defendants No.1 to 7, in form of public plots, which is

improper, unauthorized and illegal and Pattas/sale deeds

issued by the Gram Panchayat are void ab initio and

ineffective. Indeed, the challenge by plaintiffs No.5 & 6 to

pattas issued by the Gram panchayat in respect of land in

question in favour of defendants has already been decided by

the District Collector in its judgment dated 20.04.1976, and

after dismissal of the revision petitions of plaintiffs No.5 & 6,

their evidence has no credential importance.

(vii) The first Appellate court has not noticed that plaintiffs

nowhere sought a relief of declaration in the present civil suit,

to declare the allotment of land in question in favour of

defendants by way of public auction and by issuance of pattas

as null and void, apparently for the reason that allotment

letters/pattas were issued on 31.03.1973 (Exhibits A1 to A7)

and to declare these pattas as null & void and limitation of 3

years has already expired at the time of filling the amended

plaint on 13.11.1981, and prior to that, the revision petitions

filed by plaintiffs No.5 & 6, were also dismissed respectively

on 12.03.1976 and 20.04.1976. The first appellate court did

not ponder over these material facts and evidence, before

reversing the finding of Issue No.1 of the trial court.

(viii) The first appellate court failed to appreciate findings of

the trial court in respect of issues No.1 & 3. The first appellate

(23 of 38) [CSA-104/1988]

court could not adhere to the fact that the evidence of

plaintiffs No.5 & 6 (PW-1 & PW-2) is contrary to their

foundational contentions. As highlighted hereinabove.

Plaintiffs No.5 & 6, virtually claimed their personal grievances

against the allotment of land in question to defendants,

alleging that land in question is used by them for their own

purposes. Therefore, the first appellate court committed

perversity in placing reliance upon the evidence of PW-1 and

PW-3, to assume the land in question allotted to defendants

as part of public way/chowk, without adverting to the basic

contentions of plaintiffs No.5 & 6 and other aspects of the

matter as discussed hereinabove.

(ix) First appellate court committed perversity in picking one

line statement out of the entire evidence of DW-3 Banshidhar,

who happens to be the Sarpanch of Gram Panchayat, Sikar, to

conclude that he admitted that land allotted to defendants is

part of public way and chowk. On reading the evidence of

DW.3 as a whole, it transpires that such admission is not a

clear and an ambiguous admission whereas the trial court,

after appreciation of the statement of DW-3 Banshidhar as a

whole, has clearly held that the witness (DW-3) has deposed

in his evidence that the width of public way is 30ft and land

allotted to defendants by Gram Panchayat was the land of

Gram Panchayat, which is different and other than the land of

public way. Learned trial court, too dealt with the admission of

DW-3 but after reading his whole evidence, coupled with other

evidence on record adduced by plaintiffs and defendants. In

fact, DW-3 Banshidhar nowhere admitted that the width of

(24 of 38) [CSA-104/1988]

public way/chowk, in front of the public dharmshala is 55ft

wide, which is the basic case of plaintiffs in the plaint. In this

context, learned trial court taking into account statements of

PW-3 to PW-6 as also statements of DW-3, clearly observed

that the width of public way, situated in front of public

dharmshala, which is Khatu Ringas Road, is 30ft wide. There

is no evidence on record from the side of plaintiffs to prove

that in front of public dharmshala, width of public way/chowk

is 55ft wide. Learned first appellate court, while picking single

line statement of witness DW-3, Sarpanch of the Gram

Panchayat, as an admission that allotment made to

defendants No.1 to 7 is out of the land of public way and

chowk, has not pondered over the other part of his evidene as

also the other evidence of PW-5 Udaynarayan, who is the

manager of public dharamshala. PW-5 admits that in front of

dharmshala, there is 20ft wide open space and then, public

road of 30ft wide from Khatu to Ringas is situated and then

towards southern side, the land allotted by Gram Panchayat to

defendants No.1 to 7, is situated. PW-5 admits that through

the document (Ex-2), 20ft wide open space, situated in front

of the public dharmshala, has already been allotted by Gram

Panchayat to Dharmshala. No one has challenged such

allotment(Ex-2). The trial court extended heed on this point

that if width of public way/chowk, in front of public dharmshala

would have been 55ft wide, there was no occasion to allot the

open space of 20ft wide situated in front of public dharmshala

to the dharmshala. That apart, all witnesses of plaintiffs (PW-

3, PW-4, PW-5 and PW-6) admit that the width of public road

(25 of 38) [CSA-104/1988]

Khatu-Ringas is 30ft wide and in whole Village Khatushyamji,

there is no road of 55ft wide, rather somewhere the width of

road is less than 30ft. As far as existence of any public chowk,

in front of the public dharmshala, is not proved by any

evidence and there is no iota of evidence available on record

to this effect. Having considered all such oral and

documentary evidence, the trial court held that it is not

proved on record that in front of the public dharmshala, the

width of pubic way/chowk is 55ft wide.

(x) Further, the trial court also took into consideration the

site inspection reports dated 29.05.1976 & 09.11.1980, which

have been brushed aside by the first appellate court, merely

on the basis of admission of DW-3. It is the basic principle of

law of evidence that person may tell lie but not circumstances.

The two different Presiding Officers of the trial court, taking

the issue of allegation of allotment of land of the public

way/chowk by the Gram Panchayat to defendants No.1 to 7,

themselves chose to inspect site so as to elucidate the actual

controversy. In the site inspection report dated 29.05.1976,

prepared by the Presiding Officer himself after inspection of

the site, it is well clear that the land in question allotted by

the Gram Panchayat to defendants No.1 to 7 is situated

southern side, after leaving 30ft wide Khatu-Ringas Road. This

inspection report of Presiding Officer is undisputed and has

rightly been taken into account by the trial court but the first

appellate court has brushed aside this report which is

admissible peace of evidence. The second site inspection

report dated 09.11.1980 was also prepared by another

(26 of 38) [CSA-104/1988]

Presiding Officer himself, after inspection of the site. In this

inspection report of Presiding Officer, again the factual aspect

is well clear that by allotment of land by the Gram Panchayat

to defendants No.1 to 7, the width of public road from Khatu

to Ringas and movement thereupon, remain unaffected. This

report dated 09.11.1980 was also considered by the trial court

which is an admissible peace of evidence, but has been

overlooked and brushed aside by the first appellate court.

Therefore, the approach of the first appellate court, may not

be countenanced by this Court, to solely rely upon an

admission of DW-3 that too without reading his evidence as a

whole and further circumventing of other oral and

documentary evidences on record, which too were considered

by the trial court and thereafter the suit for permanent

injunction was dismissed by the trial court with a clear fact

finding that no part of public road/chowk has been allotted by

the Gram Panchayat to defendants No.1 to 7 and therefore,

plaintiffs have make out a false case against defendants.

(xi) The findings of trial court in respect of issues No.1 & 3

are well speaking and reasoned findings but the first appellate

court, without assigning any reasoning to upset and reversed

such fact findings of the trial court, observed that the open

land laying beside the public road would be treated as part of

public road placing relying on a piecemeal statement of DW-3

and reading documents (Exhibits. 3 & 4) partially as well as

relied upon the judgment of Rajasthan High Court delivered in

case of Firm Pyarelal Satpal Vs. Santlal [WLN (1971)

Part I 543] Or [AIR (1972) RAJ 103].

(27 of 38) [CSA-104/1988]

(xii). Findings of the first appellate court treating the

allotment of land made by the Gram Panchayat to defendants

No.1 to 7 from the land of public way/chowk can be said to be

passed on the basis of surmises and conjectures. From the

evidence of DW-3 and documents (Ex.3 & 4) it nowhere

reveals that in front of public dharmshala, there is a land of

55ft wide of public way/chowk which is the basic case of

plaintiffs in the present civil suit. All other evidence, oral or

documentary, as discussed by the trial court while deciding

issues No.1 and 3, have been ignored and overlooked by the

first appellate court. The first appellate court, has assumed

the admission of DW-3 as an absolute truth, which itself runs

counter to documents (Ex. A1 to A7), which are pattas issued

by DW-3,Sarpanch himself as also his such admission

mismatched and not in coherence with other part of his

evidence. Similarly, documents (Ex.3 & 4), one of which is

allotment in favour of plaintiff No.5 and another is a gift deed

in favour of plaintiff No.6, have also been read partially by the

first appellate court, to draw an assumption that towards

northern side of their guaris, a public way and chowk is

situated. The first appellate court overlooked admissions of

plaintiffs No.5 & 6 (PW-1 and PW-2) as they themselves admit

that gate/entrance of their guaris and badas is from western

side and not from northern side, where Gram Panchayat has

allotted the plots to defendants No.1 to 7. Moreover, when the

trial court has appreciated and discussed all these oral

statements and documents, it is not expected from the first

appellate court to reverse findings of the trial court by picking

(28 of 38) [CSA-104/1988]

a piecemeal evidence from the record and ignoring all other

evidence on record. When the trial court has considered all

the evidence, unless and until the same is found inadmissible,

the first appellate court could not have ignored or brushed

aside the same. As per proposition of law, the first appellate

court, before drawing an inference or assumption of its own

about treating the land allotted to defendants No.1 to 7 as

public road and chowk, was required to assign reasons

whatsoever to reverse and upset the fact finding of the trial

court. The judgment of the first appellate court is silent on

this aspect and thus stands vulnerable and contrary to the

proposition of law as set out by the Hon'ble Supreme Court in

case of Santosh Hazari (Supra).

(xiii). As far as judgment delivered in case of Firm Pyarelal

Satpal (Supra), on which the first appellate court has placed

reliance, is concerned, the principle of law does not apply to

the present case. In that case, the issue under consideration

was allotment of the few part of land in Dhanmandi Area of

Gangapur Town on the sides of public and highway road

having width of 50ft wide. The Single Bench of this Court,

while placing reliance on the judgment of Hon'ble Supreme

Court delivered in case of Muncipal Board, Manglaur Vs.

Mahadeoji Maharaj [AIR (1965) SC 1147] held that the

site lands are ordinarily included in the road, for they are

necessary for the proper maintenance of the road. Whereas in

the present case, by way of present civil suit for permanent

injunction, plaintiffs have claimed width of road up to 55ft

wide, only in front of public dharmshala and not in respect of

(29 of 38) [CSA-104/1988]

the whole road of Khatu-Ringas. Undisputedly, the width of

Khatu-Ringas Road is 30ft wide. The 20ft open space situated

in front of dharmshala has already been allotted to the

dharmshala. Thereafter, public road of Khatu-Ringas having

width of 30ft wide is available and then towards southern side,

land in question is situated. In fact, this is a case where it is

not the width of public road having 30ft, is in question but

plaintiffs claiming a public chowk in front of public

dharmshala. As per evidence on record, the existence of

public way/chowk is nowhere proved. The allotment of 20ft

wide open space, abutting towards northern side of the public

road of Khatu-Ringas to the dharmshala, is not in dispute as

evident from the document (Exhibit-2). Therefore, on facts of

present case, the open land laying towards the south side of

main public road after leaving 20ft wide open space in front of

dharmshala and then after leaving 30ft wide public road,

cannot be treated as part of public road by applying ratio of

law as enunciated in case of Firm Pyarelal Satpal (Supra).

The first appellate court without adverting to facts and

circumstances of the present case, has committed illegality

and jurisdictional error in applying that law to the present

case and has drawn a wrong assumption that the land allotted

by the Gram panchayat to defendants No.1 to 7 be treated as

part of the public road of Khatu-Ringas.

17. This Court finds that the first appellate court has recorded

findings of fact on the basis of surmises and conjectures, instead

of relying upon the substantive evidence as available on record

and which was considered by the trial court and further the

(30 of 38) [CSA-104/1988]

admissible peace of evidence has been overlooked as much as no

reasons have been assigned to reverse/upset the finding of the

trial court, which were passed by the trial court after considering

the whole evidence on record. In this view, the findings of first

appellate court, while reversing findings of issues No.1 and 3, may

be treated as perverse and contrary to the settled proposition of

law.

18. First appellate court has not adverted to pleadings and

evidence that it is admitted case of plaintiffs that in front of

dharamshala, there is a 20ft wide open space and then 30ft road

for the public way from Khatu Ringas to Dantaramgargh is

situated. The open space of 20ft wide situated in front of

dharamshala has already been allotted in favour of dharamshala

by the Gram Panchayat, which stands proved by Exhibit-2,

allotment dated 20.10.1968 through this allotment, 20x125ft open

space was allotted to public dharamshala and PW-5 Udaynarayan,

who is manager of Public Dharamshala, admits the same. This

allotment is never challenged. The trial court clearly observed that

if there was a public way/chowk, other than the public way of 30ft

wide, there is no reason that how and why this open space,

situated in front of public dharamshala, was allotted by Gram

Panchayat and same was not challenged by plaintiffs. The first

appellate court, despite such evidence and findings of trial court,

though accepted that width of public way is 30ft wide, however,

assumed that in front of dharmashala, a width of public road and

chowk is 55ft wide and such observations of first appellate court

are wholly contrary to the evidence on record and only based on

assumptions.

(31 of 38) [CSA-104/1988]

19. First Appellate court, placed reliance on documents, Exhibit-

3, allotment in favour of plaintiff No.5-Jhuntha Ram and Exhibit-4,

gift deed in favour of plaintiff No.6 Mali Ram. In these documents

though there is mention towards the northern side about existence

of public way, however, the trial court has noticed that in Exhibit-3

itself, it is indicated that the main gate for entrance on this land

would be from western side. Further, plaintiffs No.5 & 6, while

appearing as PW-1 and PW-2, have admitted in their evidence that

main gate/entrance to their guaris is from western side and not

from the northern side towards the main Khatu Ringas Road. The

first appellate court, without assigning any reasons to differ with

such findings of the trial court, has assumed the entrance of

guaris of plaintiffs No.5 & 6 from the main road of Khatu Ringas

towards northern side, which is fully perverse. The learned trial

court has appreciated documents Exhibits-2 & 4, coupled with

statements of plaintiffs No.5 & 6 as also according to site

inspection reports of the presiding officers themselves and

observed that the entrance/gate of guaris and badas of plaintiffs

No.5 & 6 is from the western side which does not adversely affect

at all by the allotment of land in question to defendants No.1 to 7,

as the enterance of these lands in question is opening towards the

northern side of the main road of Khatu Ringas. The trial court

noticed that the map appended by plaintiffs with plaint Exhibit-1,

is wholly incorrect according to the site map, as prepared by the

presiding officer after inspection of site in its site inspection report

dated 29.05.1976. The land in question allotted to defendants was

found to be situated after leaving 30ft wide public way towards

southern site of the public way and thereafter, the guari and

(32 of 38) [CSA-104/1988]

houses of Jhuntha Ram were found. Therefore, the trial court,

after appreciation of evidence as a whole, concluded that land in

question is not part of the public way of 30ft wide and there is no

public chowk and further the guaris and badas of plaintiffs No.5 &

6, have no opening towards this land, and the allotment of the

land in question by the Gram Panchayat, Khatushyamji, in favour

of defendants No.1 to 7, is not out of the land of public way or

chowk. The perusal of findings of the trial court, in respect of

issues no. 1 and 3, clearly show the appreciation of each and

entire piece of evidence on record, but the first appellate court,

without adverting to that evidence and without coming to the

close quaters of findings of the trial court, has reversed such fact

findings, merely by drawing its own conclusion on the basis of

assumptions placing reliance on documents (Exhibits-3 & 4) in

part and not as a whole. Therefore, findings and observations of

the first appellate court, regarding land allotted to defendants as

part of public way and chowk, are perverse.

20. First appellate court by drawing a presumption that the

allotment of the land in question by the Gram Panchayat,

Khatushyamji to defendants No.1 to 7 through pattas (Exhibit A1

to A7) is part of public way/chowk, observed that although, the

Gram Panchayat made allotments of plots by way of public auction

and followed the rules and procedure of law, yet, the Gram

Panchayat was not authorized to sale/public auction the land of

public way. It may be noticed that findings of the first appellate

court that Gram Panchayat, Khatushyamji, made allotment of land

in favour of defendants No.1 to 7, is part of a public way/chowk,

itself is perverse being based on no evidence and wholly based on

(33 of 38) [CSA-104/1988]

assumptions and presumptions. The Pattas, which were issued by

the Gram Panchayat in favour of defendants No.1 to 7, could not

have been treated as null and void by itself, more particularly

when it has been found that same were issued by the Gram

panchayat after following the due process of law. The first

appellate court has not noticed that plaintiffs nowhere ask for

declaration to declare these allotment/pattas of defendants as null

and void. It is undisputed position on record that plaintiffs No.1 to

4 did not appear to pursue their claim that the land allotted to

defendants is part of public way and the challenge to pattas by

plaintiff No. 5 before the Additional Collector, Sikar, has already

been dismissed as withdrawn vide judgment dated 12.03.1976

(Exhibit-A8). And challenge to pattas by plaintiff No.6, has been

dismissed on merits by the District Collector, Sikar vide judgment

dated 20.04.1976 (Exhibit-A7). The limitation to challenge the

validity of these pattas before the civil court is three years which

has already expired. In the amended plaint, while challenging

these pattas as void ab-initio and ineffective, plaintiffs nowhere

asked for declaratory relief in the amended plaint in respect of

these pattas. [The District Collector in its judgment dated

20.04.1976 (Exhibit A7) has clearly held that these pattas were

issued by the Gram Panchayat after following the prescribed

procedure of law and the land was sold to defendants No.1 to 7 by

way of public auction.] The first appellate court also agreed with

such findings and procedure findings of the District Collector and

observed that pattas have been issued by the Gram Panchayat

after following due process of law. In such scenario, where the

land in question cannot be treated as part of public way/chowk,

(34 of 38) [CSA-104/1988]

the allotment of land by the Gram Panchayat in favour of

defendants No.1 to 7, should not have been treated as void ab-

initio and ineffective without seeking declaratory relief to this

effect.

21. The Hon'ble Supreme Court, in its recent judgment delivered

in case of Ratnagiri Nagar Parishad Vs. Gangaram Narayan

Ambedkar [(2020) 7 SCC 725] held that a simplicitor civil suit

for bare injunction, without any declaratory relief for declaration of

auction/orders of allotment of the state land by the state

authorities as illegal, is not maintainble. In that case plaintiff

instituted a civil suit for permanent injunction against defendants

and State Government in representative capacity, stating that

Ratnagiri Nagar Parishad intends to set up a solid waste disposal

project in the suit property, which would entail in serious health

problems for villages as well as there is immense possibility of

causing severe water pollution and further defendants had not

taken any permission from the competent authority, therefore, a

decree for perpetual injunction was prayed for not to set up the

project. However, defendant and State Government asserted in

the written statement that the suit land had been allotted to

defendant after due deliberations and consultation with expert

committee, and decision to allot for setting up the project was

taken. Despite such disclosure by the competent authority to allot

the suit land and allow to set up the project on the suit land by

defendant, the plaintiff neither assailed orders of the competent

authority or prayed for any declaratory relief in that regard.

Therefore, the Hon'ble Supreme Court, on the face value of orders

of allotment of suit land to defendant, and orders giving

(35 of 38) [CSA-104/1988]

permission to defendant to set up the solid water disposal project

on the suit land, observed and held that the plaintiff has not

sought for declaration about invalidity of such order nor have

assailed such orders and his simplicitor suit for permanent

injunction is not maintainable.

22. In case of Ratnagiri Nagar Parishad (Supra), the Hon'ble

Supreme Court placed reliance upon its previous judgment

delivered in case of Krishnadevi Malchand Kamathia Vs.

Bombay Enviornmental Action Group [(2011) 03 SCC 363]

wherein this court observed as under:-

"Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person."

The Hon'ble Supreme Court in case of Ratnagiri Nagar

Parishad (Supra) also placed reliance upon a previous celebrated

judgment in case of Smith Vs. East Elloe Rural District

Council [(1956) AC 736], and following observations were

made:

"An Order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset it will remain as effective for its ostensible purpose as the most impeccable of Orders."

(36 of 38) [CSA-104/1988]

23. Therefore, the first appellate court committed perversity and

jurisdictional error in decreeing the simplicitor civil suit for

permanent injunction and treating it against defendants in respect

of the land in question, which has been allotted to defendants by

the Gram Panchayat, Khatushyamji, by way of public auction after

following the due process of law and no declaratory relief to

declare these allotments as null and void was prayed for in the

civil suit filed by plaintiffs. In that view, the impugned judgment

and decree dated 13.05.1988 of the first appellate court stands

illegal and perverse.

24. Apart from afore-stated illegalities and perversity, it also

appears by perusal of bottom-lines of Para 7 of the impugned

judgment of the first appellate court that the appellate court

swayed with the religious sentiments in the manner that in Village

Khatushyamji, several pilgrims visit on and off and religious fair is

also organized time and again, therefore, it would just and

reasonable to keep the land situated in front of the public

dharmshala open. Such findings are arbitrary and dehors to

pleadings and evidence on record. It was the burden on plaintiffs

to prove by evidence that width of road and chowk in front of the

public dharmshala, is 55ft wide, which has not been proved and

on the contrary, the allotment of land by the Gram Panchayat,

Khatushyamji, to defendants No.1 to 7, after leaving 30ft public

road, is proved and pattas issued to defendants No.1 to 7, which

were not challenged in the present civil suit, could not have been

assumed to be void ab initio on the basis of such arbitrary findings

and reasoning. On this count also, findings of first appellate court

are perverse and unsustainable.

(37 of 38) [CSA-104/1988]

25. After discussions made hereinabove, the substantial question

of law is decided in affirmative and in favour of appellants.

26. Having noticed the perversity on the part of the first

appellate court in recording findings that land in question,

sold/allotted by Gram Panchayat, Khatushyamji, to defendants-

appellants, is part of public way/chowk, it transpires that such

findings are based on no evidence and the first appellate court did

not come into close quarters with the reasoning assigned by the

trial court nor assigned reasons to reverse findings of the trial

court, further the first appellate court has not considered the

material and relevant evidence on record, which was considered

by the trial court. The principle of law enunciated in case of

Kondiba Dagadu Kadam (Supra) and Santosh Hazari (Supra)

becomes applicable to the fact of present case and further

according to the scope of interference with findings of fact of the

courts below as permitted by the Hon'ble Supreme Court in case

of Sebastiao Luis Fernandes (Supra), the impugned judgment

and decree dated 13.05.1988, is liable to be interfered with by

this Court, while exercising its jurisdiction under Section 100 CPC.

Further, the findings of the first appellate court are based on

surmises and conjunctures and also suffer from misreading of oral

and documentary evidence, therefore, according to principles

enunciated by the Hon'ble Supreme Court in case of Shiv Dayal

(Supra) and in case of C Doddanarayanan Reddy (Supra) also

become applicable.

27. Consequently, this Court is of considered opinion that

according to the perversity and illegalities pointed out on the part

of the first appellate court while decreeing plaintiffs' suit against

(38 of 38) [CSA-104/1988]

defendants on the basis of an assumption that the land in question

allotted to defendants is part of a public way/chowk, is

unsustainable in law and is liable to be set aside.

28. As a result, the instant second appeal stands allowed. The

impugned judgment and decree dated 13.05.1988 passed by the

Court of Additional District Judge, Sikar, is quashed and set aside.

The judgment and decree 21.12.1981, passed by the Court of

Munsif and Judicial Magistrate, Dantaramgarh, District Sikar, is

affirmed. Accordingly, the civil suit for permanent injunction filed

by respondents-plaintiffs stands dismissed.

29. There is no order as to costs.

30. All other application(s), if any, also stand(s) disposed of.

31. Records of courts below be sent back forthwith.

(SUDESH BANSAL),J

SACHIN

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