Ratanlal vs Municipal Council ...
2023 Latest Caselaw 3248 Raj

Citation : 2023 Latest Caselaw 3248 Raj
Judgement Date : 19 April, 2023

Rajasthan High Court - Jodhpur

Ratanlal vs Municipal Council ... on 19 April, 2023

Bench: Rekha Borana

[2023/RJJD/010881]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 184/2022

1. Ratanlal S/o Shivlal Ji, Aged About 76 Years, R/o Naya Bazar, Bhatkarda, Sirohi, Tehsil And Distt. Sirohi.

2. Natwarlal S/o Rooparamji, Aged About 80 Years, R/o Sirohi, Tehsil And Distt. Sirohi.

----Appellants Versus Municipal Council, Sirohi, Through Commissioner, Municipal Council, Tehsil And Distt. Sirohi.

                                                   ----Respondent


For Appellant(s)             :    Mr. Rajesh Shah


              HON'BLE MS. JUSTICE REKHA BORANA
                                       Order
19/04/2023

1. The present second appeal has been preferred against the

judgment and decree dated 25.05.2022 passed by the District

Judge, Sirohi in Civil First Appeal No.16/2018 whereby the

judgment and decree dated 02.06.2018 passed by the Civil Judge,

Sirohi in Civil Suit No.43/2015 rejecting the suit for permanent

injunction as preferred by the plaintiffs has been affirmed. The

suit was preferred by the plaintiffs for removal of encroachments

made on the suit property.

2. The issue as framed by the learned trial Court was as

under:-

"vk;k oknhx.k fo:} çfroknh bl çdkj dh LFkkbZ o vkKkid fu"ks/kkKk çkIr djus dk vf/kdkjh gS fd çfroknh okn ds lyaXu ofj"B uxj fu;kstd] tks/kiqj {ks=] tks/kiqj }kjk vuqeksfnr o Loh--r uD'kk vuqlkj HkkVdMk eksgYyk esa usg: ikdZ ds lkeus xyh ls gksdj ,yvkbZlh dk;kZy;] vEcsMdj lfdZy] fo/kqr foHkkx] u;kokl LVs.M tkus gsrq mijksä jkLrs ij ls reke vfrØe.k ,oa U;qlsUl dks vius [kpsZ ij gVkdj mijksä jkLrs dks [kqyokdj iwjh pkSMkbZ esa lQkbZ ,oa oknh o vketu ds vkokxeu gsrq lqpk: djs o U;wlsUl gVkosa rFkk Hkfo"; esa Hkh mijksä LFky ij fdlh çdkj dk voS/k dCtk o U;qlsUl dkfjr u fd;k tkosA"

3. Both the Courts below have specifically reached to the

conclusion that firstly, the road alleged by the plaintiffs to be of

[2023/RJJD/010881] (2 of 3) [CSA-184/2022]

50 ft. was existing on the site with the same width and therefore,

the same had not been encroached upon. Secondly, it was an

admitted case of the defendant itself that the temporary

encroachments vide temporary tents were made by nomadic

people and they themselves removed the said encroachments

within certain point of time. The other encroachments had also

been removed by the defendant Municipal Council and no

encroachment or nuisance existed anymore on the site.

4. Learned counsel for the appellant submitted that the

nuisance and the encroachment as alleged by the plaintiffs was a

continuous process as the land in question was encroached by the

nomadic people every time and then, therefore, the cause of

action still survived and an injunction in the nature of perpetual

injunction ought to have been granted in their favour.

5. A perusal of the record shows that no prayer for perpetual

injunction was made and therefore no such relief could have been

granted in favour of the plaintiffs by the Courts below.

6. Further, it is admitted on record that:

i) the plaintiffs did not plead the specific details of the

persons who encroached upon the land;

ii) to whom the complaint, if any, regarding the said

encroachment was made and on which date the complaints

were made;

iii) the notice, as pleaded by the plaintiffs to be served upon

the defendants through their lawyer, was also not exhibited

in evidence;

iv) no photographs of the site were placed on record to

show/prove any encroachment or nuisance;

[2023/RJJD/010881] (3 of 3) [CSA-184/2022]

v) Although pleaded that the neighbours had also

complained of encroachments, no such neighbour or

complaint was a part of the evidence.

7. In view of the above admitted facts, the Courts below

reached to specific findings of fact. All the findings as reached by

the Courts below are totally factual in nature and does not involve

any question of law.

8. In view of the same, the concurrent findings of the Court

below do not deserve to be interfered with. No substantial

question of law arises in the present appeal.