Rashid Khan vs Shri Heeralal And Anr ...
2023 Latest Caselaw 3204 Raj/2

[2023:RJ-JP:16868]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 172/2018

Rashid Khan S/o Shri Nanne Khan, R/o In Front Of Suraj Public
School, Pili Khan, Lohakhan, Ajmer.
                                                            ----Appellant/Plaintiff
                                     Versus
1.       Shri Heeralal S/o Shri Nathulal, R/o In Front Of Suraj
         Public School, Pili Khan, Lohakhan, Ajmer.
2.       Smt. Naina W/o Late Shri Kiran, R/o In Front Of Suraj
         Public School, Pili Khan, Lohakhan, Ajmer.
                                                 ----Respondents-Defendants

For Appellant(s)           :     Mr. Ashish Saini
For Respondent(s)          :



       HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                           Judgment / Order

07/08/2023

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

by 921 days, is accompanied with an application under Section 5

of the Limitation Act.

For the reasons stated in the application under Section 5 of

the Limitation Act, the same is allowed. The delay in preferring the

appeal is condoned.

This civil second appeal is preferred against the judgment

and decree dated 06.12.2017 passed by the learned Labour Court

and Industrial Tribunal, Ajmer (for brevity, "the learned Appellate

Court") in CIS Civil Original Appeal no.9/2017 (Registered no. Civil

Original Appeal no.11/2017) whereby, while partly allowing the

appeal, the judgment and decree dated 01.03.2016 passed by the

learned Civil Judge, Ajmer City (North), Ajmer (for brevity, "the

[2023:RJ-JP:16868] (2 of 3) [CSA-172/2018]

learned trial Court") dismissing the Civil Suit No.122/2014 filed by

the appellant-plaintiff (for brevity, "the plaintiff") for declaratory

injunction and permanent injunction, have partly been reversed

and the decree of permanent injunction has been granted.

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

for declaratory injunction and permanent injunction against the

respondents/defendants (for brevity, "the defendants"), stating

therein that he has a right of way from the "gali" situated in

northern side of his residential house which has been obstructed

by the defendants putting an iron gate in its front. Therefore, the

decree as aforesaid was prayed for.

The defendants in their written statement stated that the

plaintiff has purchased the subject property from the defendant

no.1 and has the right of way towards its western side. It was

averrred that the subject way was their personal way which has

always had an iron gate. Dismissal of the suit, therefore, was

prayed for.

On the basis of pleading of the respective parties, the

learned trial Court framed three issues including relief. After

recording evidence of the respective parties, the learned trial

Court dismissed the suit vide judgment and decree dated

01.03.2016. While partly allowing the civil first appeal preferred

thereagainst by the plaintiff, he has been held entitled for the

decree of permanent injunction, whereas, the suit for declaratory

injunction has been dismissed by the learned Appellate Court vide

judgment and decree dated 06.12.2017.

Assailing the impugned judgment and decree, learned

counsel for the plaintiff submits that the learned Courts erred in

[2023:RJ-JP:16868] (3 of 3) [CSA-172/2018]

failing to appreciate that the subject way is the public way and the

defendant had no right to put an iron gate in front of it. He,

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

judgment and decree dated 06.12.2017 be quashed and set aside

and the suit filed by him be decreed in toto.

Heard. Considered.

Learned Appellate Court has, vide judgment and decree

dated 06.12.2017, while holding that the plaintiff was entitled to

have right of access through the subject way situated towards the

northern side of his residential house, recorded a categorical

finding based on admission of the plaintiff himself as PW-1 that it

was the only way available to the defendants to have access to

their residential house. However, the plaintiff was not held entitled

for the declaratory injunction for removal of the gate in view of his

specific prayer by way of permanent injunction not to close the

gate which were found to be self contradictory. It was further held

that in view of the nature of prayer made for permanent

injunction, the relief sought by way of declaratory injunction could

have only been sought by way of mandatory injunction. Learned

counsel for the plaintiff could not point out any illegality, infirmity,

perversity or jurisdictional error in the findings so recorded by the

learned Appellate Court so as to warrant interference of this Court

under Section 100 CPC.

Since, the civil second appeal is devoid of any substantial

question of law, the same is dismissed.

(MAHENDAR KUMAR GOYAL),J

Sudha/95

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