Gajanand vs Jagdish And Ors ...
2023 Latest Caselaw 3205 Raj/2

[2023:RJ-JP:16855]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 402/2016

Gajanand S/o Shri Mangal Ram, aged about 69 years, R/o
Manpura Mohalla, behind Tehsil, Behrod Tehsil, Behrod, District
Alwar Raj.
                                                            ----Plaintiff-Appellant
                                     Versus
1.       Jagdish S/o Mangal Ram, R/o Behrod
                                               Died During Pendency Of Suit


1/1.     Indra Devi Daughter of Jagdish
1/2.     Hari Shankar Son of Jagdish,
1/3.     Madhusudan Son of Jagdish,
1/4.     Ghanshyam S/o Jagdish R/o Mohalla Manpura Behrod,
         Behind Behrod Thana, Tehsil Behrod District Alwar Raj.
                                                 ----Defendants-Respondents

For Appellant(s)           :     Mr. Deepak Sharma
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 5 days, is accompanied with an application under Section 5 of

the Limitation Act, 1963 seeking condonation of delay.

For the reasons stated in the application (34/2023), 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 14.07.2016 passed by the learned

Additional District Judge No.2, Behror, Alwar (hereinafter referred

[2023:RJ-JP:16855] (2 of 4) [CSA-402/2016]

to as "the learned appellate Court") in Civil Appeal No.35/2013

(78/2011) whereby, while dismissing the appeal, the judgment

and decree dated 07.09.2011 passed by the learned Civil Judge

(Senior Division) No.1, Behror, Alwar (for short "the learned trial

Court") dismissing the Civil Suit No.79/2009 (59/2001) filed by

the appellant/plaintiff (for brevity "the plaintiff") for declaration

and permanent injunction, have been affirmed.

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

declaration and permanent injunction against the

respondents/defendants (for short "the defendants") stating

therein that a residential property situated in Mohalla behind

Manpura Thana, Behror as described in Para No.2 of the plaint,

was ancestral property of the parties, which was divided about

eighteen years ago. It was averred that he was under ownership

and possession of the subject property since the time of its oral

division; but, the defendants were trying to encroach upon his

portion of the property. Therefore, the decree as aforesaid was

prayed for.

The defendants in their joint written, denying the averments

made in the plaint, submitted that the subject property was under

their ownership and possession. Dismissal of the suit, therefore,

was prayed for.

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

Court framed six issues including relief. After recording evidence

of the respective parties, the learned trial Court dismissed the civil

suit vide judgment and decree dated 07.09.2011. The civil first

appeal preferred thereagainst has also been dismissed by the

[2023:RJ-JP:16855] (3 of 4) [CSA-402/2016]

learned appellate Court vide judgment and decree dated

14.07.2016.

Assailing the impugned judgment and decree, the learned

counsel for the plaintiff would submit that the learned Courts

erred in dismissing the suit ignoring the evidence on record. He,

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

judgment and decree dated 14.07.2016 be quashed and set aside

and the civil suit filed by the him be decreed.

Heard. Considered.

While deciding the issue No.1 as to ownership and

possession of the plaintiff over the subject property, the learned

trial Court has held that the plaintiff himself has admitted during

his cross-examination as PW-1 that he was not in possession of

the subject property which was in possession of the defendants for

last about 16-17 years. His witnesses; namely, Ragvir (PW-2) &

Babulal (PW-3) have also stated so during their cross-

examination. It was further held that he could not establish his

title also over the subject property. While deciding the issues No.4

& 5, it has been held by the learned trial Court that since, the

plaintiff has neither established his title nor possession over the

subject property, he was not entitled for decree for declaration

and permanent injunction. The findings have been upheld by the

learned appellate Court after re-appreciating the evidence on

record. Leaned counsel for the plaintiff could not demonstrate the

concurrent findings of facts recorded by the learned courts 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:16855] (4 of 4) [CSA-402/2016]

Further, in view of Section 34 of the Specific Relief Act, 1963,

even otherwise also, in absence of possession of the plaintiff over

the subject property, his suit for declaration and permanent

injunction was not maintainable.

Since, this civil second appeal is devoid of any substantial

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

stands dismissed.

(MAHENDAR KUMAR GOYAL),J

Manish/85

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