Rewarmal S/O Moolchand vs Laxminarayan S/O Prabhu Lal ...
2023 Latest Caselaw 3101 Raj/2

[2023:RJ-JP:16669]
[2023:RJ-JP:16668]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 594/2019

1.       Rewarmal S/o Moolchand,
2.       Mahesh S/o Rewar,
         Both are R/o 22 Mile, Didwana, Tehsil Lalsoth, District
         Dausa
                                                      ----Appellants-Defendant
                                     Versus
Ramji Lal S/o Ghasilal, R/o 22 Mile, Didwana, Tehsil Lalsoth,
District Dausa
                                                        ----Respondent-Plaintiff

Connected with

S.B. Civil Second Appeal No. 611/2019

1. Rewarmal S/o Moolchand,

2. Mahesh S/o Rewar, Both are Resident Of 22 Mile, Didwana, Tehsil Lalsoth, District Dausa

----Defendant-Appellants Versus

1. Laxminarayan S/o Prabhu Lal,

2. Raj Kamal S/o Prabhu Lal, Both are Resident Of 22 Mile, Didwana, Tehsil Lalsoth, District Dausa

----Respondent/Plaintiff

For Appellant(s) : Mr. Ajay Shukla For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment / Order

04/08/2023

S.B. Civil Second Appeal No. 594/2019:-

This civil second appeal, which is reported to be time barred

by 94 days, is accompanied with an application under Section 5 of

[2023:RJ-JP:16669] (2 of 5) [CSA-594/2019] [2023:RJ-JP:16668]

the Limitation Act, 1963 (for brevity "the Act of 1963") seeking

condonation of delay.

For the reasons stated in the application filed under Section

5 of the Act of 1963, the same is allowed. Delay in preferring the

second appeal is condoned.

This civil second appeal has been preferred against the

judgment and decree dated 17.05.2019 passed by the learned

Additional District Judge, Lalsot, District Dausa (hereinafter

referred to as "the learned appellate Court") in Civil Regular

Appeal No.33/2017 whereby, while dismissing the appeal, the

judgment dated 02.05.2017 passed by the learned Civil Judge,

Lalsot, District Dausa (for short "the learned trial Court")

decreeing the Civil Suit No.13/2013 filed by the

respondent/plaintiff (for brevity "the plaintiff") for permanent

injunction, has been affirmed.

The relevant facts in brief are that the plaintiff filed a suit for

permanent injunction against the appellants/defendants (for short

"the defendants") stating therein that he was allotted the plot

No.14 situated towards the eastern side of the National Highway

No.11 at Didwana 22 Miles Chauraha by the Panchayat Samiti,

Lalsot in the year 1975 out of the land of Khasra No.2756. It was

averred that he was residing raising construction thereon. Alleging

that the defendants were trying to encroach upon a part of the his

plot, the decree as aforesaid was prayed for.

The defendants in joint written statement stated that Patta,

if any, issued in favour of the plaintiff is forged. Existence of the

[2023:RJ-JP:16669] (3 of 5) [CSA-594/2019] [2023:RJ-JP:16668]

subject plot at site was denied. It was, therefore, prayed that the

suit be dismissed.

On the basis of pleadings of the parties, the learned trial

Court framed five issues including relief. After recording evidence

of the plaintiff as the defendants did not lead any evidence despite

opportunities, the learned trial Court decreed the suit vide

judgment dated 02.05.2017. The civil first appeal preferred

thereagainst has been dismissed by the learned appellate Court

vide judgment and decree dated 17.05.2019.

Assailing the impugned judgment and decree, the learned

counsel for the defendants submits that since, the plaintiff could

not establish his title over the subject property, the learned Courts

erred in decreeing the suit filed by him for permanent injunction.

He, therefore, prays that the civil second appeal be allowed, the

judgment and decree dated 17.05.2019 be quashed and set aside

and the civil suit filed by the plaintiff be dismissed.

Heard. Considered.

An application No.90579/2019 has been filed by the

defendants under Order 41 Rule 27 CPC for taking on record the

photocopies of the Jamabandi for Samvat 2031-2034 for village

Didwana and of mutation register of the Khasra No.4395/2756. It

is stated in the application that these documents are of utmost

necessity to determine and to adjudicate the controversy involved

in the matter. However, except making a bald averment that these

documents could not be produced before the learned trial Court as

the same were not in their possession, no reason has been

assigned as to why the documents which, indisputably, were in

[2023:RJ-JP:16669] (4 of 5) [CSA-594/2019] [2023:RJ-JP:16668]

existence prior to filing of the suit, were not produced at the

relevant time. It is trite law that an application under Order 41

Rule 27 CPC cannot be permitted to be filed to fill in the lacuna in

evidence. As already observed, the defendants did not lead any

evidence during trial despite several opportunities. Further, their

relevance or necessity for adjudication of the controversy involved

in the matter is neither reflected from the application nor, could be

demonstrated by the learned counsel for the defendants.

Moreover, only photocopies of the documents have been submitted

alongwith the application without any explanation as to why

original/certified copy of the same has not been filed.

In view thereof, the application filed under Order 41 Rule 27

CPC is dismissed.

While deciding the issue No.1, the learned trial Court has

held, after appreciating the oral as well as the documentary

evidence led by the plaintiff, that he was allotted the Patta

(Exhibit-2) of the subject land by the Panchayat Samiti, Lalsot in

the year 1975 whereon, the plaintiff was residing after raising

construction. The issues No.2 to 4 framed on the objections raised

by the defendants in their written statement, were decided against

them as no evidence was led by them to prove the same. The

aforesaid findings have been upheld by the learned appellate

Court after re-appreciating the evidence on record. These

concurrent findings of facts have not been demonstrated by the

learned counsel for the defendants to be suffering from any

illegality, infirmity, perversity or jurisdictional error so as to

warrant interference of this Court under Section 100 CPC.

[2023:RJ-JP:16669] (5 of 5) [CSA-594/2019] [2023:RJ-JP:16668]

Since, this civil second appeal is devoid of any substantial

question of law, the same is dismissed. Pending application also

stands dismissed.

S.B. Civil Second Appeal No. 611/2019:-

Learned counsel for the appellants admits that except the

difference in plot number, the facts of this case are identical with

the facts of the SB Civil Second Appeal No.594/2019, which has

been dismissed by this Court.

In view of the dismissal of the SB Civil Second Appeal

No.594/2019, this appeal is also dismissed. Pending applications

also stand disposed of.

(MAHENDAR KUMAR GOYAL),J

Manish/84-85

Powered by TCPDF (www.tcpdf.org)