Rajasthan High Court

Pankhya And Others vs Prabhu Lal on 18 October, 2022

Bench: Sudesh Bansal

            HIGH COURT OF JUDICATURE FOR RAJASTHAN
                        BENCH AT JAIPUR

                         S.B. Civil Second Appeal No. 342/2015
1. Pankhya S/o Kana
2. Hari S/o Moti
3. Jagga @ Jaggannath S/o Moti
     All         R/o              Bahravanda                             Khurd,                   Tehsil                Khandar                       District
Sawaimadhopur
                                                                                                    ----Appellants/Defendants
                                                                          Versus
Prabhu Lal S/o Shri Bajrang Lal Jat R/o Village Bahravanda
Khurd, Tehsil Khandar District Sawaimadhopur
                                                                                                          ----Respondent/Plaintiff

For Appellant(s)                                        :        Mr. Tarun Jain
For Respondent(s)                                       :


                        HON'BLE MR. JUSTICE SUDESH BANSAL
                                                                    Judgment
18/10/2022

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

Civil Procedure has been preferred by appellant-defendant,

assailing the judgment and decree dated 11.05.2015, passed in

Civil Regular Appeal No.414/2009 (33/01) by the Court of

Additional District Judge, Sawai Madhopur (Rajasthan), affirming

the judgment and decree dated 02.06.2001, passed in Civil Suit

No.12/1998 by the Court of Civil Judge (Junior Division) and

Judicial Magistrate, Khandar, District Sawai Madhopur, whereby

and whereunder respondent-plaintiff's suit for prohibitory and

mandatory injunction has been decreed on merits in following

manner:

"वाद वादी ववरुद्ध प्रव प्रतिवादीगण वा वास प्रति आद आदेशादेशातआदेशात्मक वासााई व स्थाई निषई निषेधानिषेधाजा का ज्ञा का अाज्ञा का अंव आदेशक रूप स वासवीकार वकया जाकर आद आदेशादेशातआदेशात्मक व स्थाई निषई निषेधानिषेधाजा स पाबपाबनद वकया जा प्रतिा हज व वाद क साज्ञा का अंल संलग स्थाई नि स्थाई निजरी स्थाई निक़ आदेश आदेशात्म ए, बी, सी, डी आदेशात्माक् वासाा स्थाई नि स टापरी, पदेशातार व ज्ञा का अपाबनय क कोई भी वयवई निषेधा स्थाई नि वहााज्ञा का अं

(2 of 4) [CSA-342/2015]

पर स हटाल व 12 फ़ीट ट रा वास प्रति आदेशात्म क कोई ज्ञा का अवर कोई निषेध उदेशातपपाबन स्थाई नि ह को प्रति को उस हटाल प्रतिाा वासााई व स्थाई निषई निषेधानिषेधाजा स पाबपाबनद वकया जा प्रतिा हज वक वादी क आग रा वास प्रतिा, च कोक क पड प्रति भभवआदेशात्म आदेशात्म वयवई निषेधा स्थाई नि क को हटाल उपरााज्ञा का अं प्रति उसक उपय कोग उपभ कोग आदेशात्म स्थाई नि वासवयाज्ञा का अं बाई निषेधा उदेशातपपाबन स्थाई नि कर स्थाई नि ही वकसी ज्ञा का अपाबनय स्थाई नि करवाव । आदेशात्माआदेशात्मल क पररव वासाव प्रति आदेशात्म पक्षकारा स्थाई नि आदेशात्मभकदआदेशात्मा सा समबपाबनई निषेधी वयय ज्ञा का अप स्थाई निा ज्ञा का अप स्थाई निा वह स्थाई नि करग । प्रतिद स्थाई निभसार वडक पचा् आदेशात्मभ प्रतिा मुर्तीब वकया जाव। "

2. Heard counsel for appellants and perused the record.

3. It appears from the record that respondent-plaintiff

instituted civil suit for prohibitory and mandatory injunction

seeking removal of the obstruction and for protection of the way

of 12ft wide, situated towards northern side of his plot allotted by

the Gram Panchayat. The encroachment, alleged to be made by

defendants, was shown in the map appended with plaint and it

was prayed that the place marked A, B, C & D, be kept free from

obstruction, for having free movement through the way in

question. Plaintiff, on the basis of allotment issued by the Gram

Panchayat, contended that towards northern side of his plot a way

of 12ft is situated, which is being obstructed by defendants.

4. Defendants submitted written statement and contended that

the land, for which plaintiff is claiming his way, is in fact a bada,

which is being used by defendants to tether their cattle and same

is the allotted land to defendants.

5. Learned trial court, after framing issues and recording

evidence of both parties, concluded that plaintiff has proved the

existence of way and has led evidence that defendants have

encroached upon the way by raising some temporary structure.

Per contra, defendants could not lead any evidence to show that

the disputed land was ever allotted to them or remained in their

possession, to be used for bada. After appreciation of evidence of

(3 of 4) [CSA-342/2015]

both parties, learned trial court decreed plaintiff's suit vide

judgment and decree dated 02.06.2001.

6. Appellant-defendant preferred first appeal, challenging the

judgment and decree dated 02.06.2001. The first appellate court,

on re-appreciation of entire evidence, concurred with fact findings

of the trial court and dismissed the first appeal vide judgment and

decree dated 11.05.2015.

7. Both courts below, on the basis of appreciation and re-

appreciation of evidence, have concurrently held that as per the

allotment of plot to plaintiff, through patta (Ex-8) by the Gram

Panchayat towards the northern side of his plot, a way of 12ft

wide exists. Accordingly, the evidence including statements of

witnesses, photographs and report of Court Commissioner, it has

been concluded that defendants have made some encroachment

of temporary nature on the way in question. Further, both courts

below have observed that defendants could not adduce any

evidence to show any right or old possession over the disputed

part of the land. The concurrent findings are based on material

available on record, as such are not required to be interfered with

in second appeal. Counsel for appellants could not point out any

perversity in fact findings nor could show that such findings are

based on misreading/non-reading or no evidence.

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:

(4 of 4) [CSA-342/2015]

"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

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. Record be sent back.