Hari Singh vs Bahram And Another ...
2023 Latest Caselaw 3311 Raj/2

[2023:RJ-JP:17019]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 367/2014

Hari Singh S/o Shri Godharam, R/o Dhani Sitawali, Bagheri
Kalan, Tehsil Kishangarh Bas, District Alwar
                                                            ----Appellant/Plaintiff
                                     Versus
1.       Bahram S/o Harsahai
2.       Gordhan S/o Bahram
         Both are R/o Dhani Sitawali, Bagheri Kalan, Tehsil
         Kishangarh Bas, District Alwar.
                                                 ----Respondents/Defendants

For Appellant(s) : Mr. Dharmendra Kumar for Mr. Kapil Gupta For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment / Order

08/08/2023

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

by 277 days, is accompanied with an application under Section 5

of the Limitation Act, 1963.

Reiterating the averments made in the application, learned

counsel for the appellant would submit that since, he is an

illiterate person and is a resident of far flung area, delay occurred

in filing of the civil second appeal. He, therefore, prays for

condoning of delay.

Heard. Considered.

The reasons assigned in the application are not only vague

and bald; but, are far from being satisfactory for condoning the

inordinate delay in preferring the civil second appeal.

[2023:RJ-JP:17019] (2 of 4) [CSA-367/2014]

In view thereof, the application under Section 5 of the

Limitation Act, 1963 deserves to be dismissed.

However, in the interest of justice, the civil second appeal

has been heard on its merit.

This civil second appeal has been preferred against the

judgment and decree dated 16.01.2014 passed by the learned

Additional District Judge No.1, Kishangarh Bas, District Alwar (for

brevity, "the learned Appellate Court") in Civil Regular Appeal

No.3/2010 whereby, while dismissing the appeal, the judgment

and decree dated 17.12.2009 passed by the learned Civil Judge

(Junior Division), Kishangarh Bas, District Alwar (for brevity, "the

learned trial Court") dismissing the Civil Suit No.82/1999 filed by

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

injunction and permanent injunction, have been affirmed.

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

mandatory injunction and permanent injunction against the

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

therein that there is a 12 ft. way left by him out of his open piece

of land to have access to his property comprising of a residential

house and a Bada, an open piece of land, a part of which has been

obstructed by the defendants. Therefore, the decree as aforesaid

was prayed for.

The defendants in their joint written statement, denying the

averments made in the plaint, submitted that no way existed at

site as claimed by the plaintiff. Dismissal of the suit, therefore,

was prayed for.

On the basis of pleading, the learned trial Court framed five

issues including relief. After recording evidence of the respective

[2023:RJ-JP:17019] (3 of 4) [CSA-367/2014]

parties, the learned trial Court dismissed the suit vide judgment

and decree dated 17.12.2009. The civil first appeal preferred

thereagainst by the plaintiff has also been dismissed by the

learned Appellate Court vide judgment and decree dated

16.01.2014.

Assailing the impugned judgment and decree, learned

counsel for the plaintiff submits that findings of the learned Courts

are against the evidence on record. He, therefore, prays that the

civil second appeal be allowed, the judgment and decree dated

16.01.2014 be quashed and set aside and the suit filed by him be

decreed.

Heard. Considered.

While dismissing the suit, learned trial Court has recorded a

categorical finding, after appreciating oral as well as documentary

evidence available on record, that the plaintiff could not establish

that he has left a 12 ft. way out of his land to reach his residential

house/Bada from the village. It was observed that neither he

could establish his right through the alleged way nor, he has

claimed any easementary right over it; rather, he has admitted

during his cross-examination as PW-1 that he uses the other way

situated in southern side of his house to have access to the

village. The aforesaid findings have been affirmed by the learned

Appellate Court reappreciating the evidence on record. Learned

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:17019] (4 of 4) [CSA-367/2014]

Since, the civil second appeal is devoid of any substantial

question of law, it deserves to be dismissed.

Resultantly, the application under Section 5 of the Limitation

Act as also the civil second appeal are dismissed being devoid of

merit.

(MAHENDAR KUMAR GOYAL),J

Sudha/03

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