Ramveer vs Pushkar Singh And Ors ...
2023 Latest Caselaw 3313 Raj/2

[2023:RJ-JP:17141]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 628/2017

Ramveer S/o Khubiram, R/o Nagala Gopal, Tehsil And District
Bharatpur Raj.
                                                            ----Appellant-Plaintiff
                                     Versus
1.       Pushkar Singh S/o Than Singh, aged about 43 years,
2.       Jitendra Pal S/o Than Singh, aged about 37 years,
3.       Dharmendra Singh S/o Than Singh, aged about 35 years,
         All are R/o Nagala Gopal, Tehsil And District Bharatpur
         Raj.
                                                 ----Respondents-Defendants

For Appellant(s)           :     Mr. Arvind Sharma with
                                 Ms. Mamta Agrawal
For Respondent(s)          :


    HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
                  Judgment / Order
08/08/2023

This civil second appeal is preferred against the judgment

and decree dated 07.07.2017 passed by the learned Additional

District Judge No.4, Bharatpur (for brevity, "the learned Appellate

Court") in Civil Regular Appeal No.189/2016 (CIS No.863/2014)

whereby, while dismissing the appeal, the judgment and decree

dated 10.05.2012 passed by the learned Additional Civil Judge

(Junior Division) No.3, Bharatpur (for brevity, "the learned trial

Court") dismissing the Civil Case No.91/2007 (256/82) filed by the

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

injunction, have been upheld.

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

permanent injunction against the respondents/defendants (for

brevity "the defendants) stating therein that he was under

[2023:RJ-JP:17141] (2 of 3) [CSA-628/2017]

ownership and possession of the subject property situated in

Nagala Gopal being used by them for last about 50 years since the

time of his ancestors for keeping wood, fuel etc. Alleging that the

defendants were trying to interfere in the aforesaid property, the

decree as aforesaid was prayed for.

The defendants in their joint written statement submitted

that the plaintiff has encroached upon the land of public way for

which proceeding under Section 91 of the Rajasthan Land Revenue

Act, 1956 (for brevity, "the Act of 1956") has been initiated

against him. It was averred that since, the plaintiff was not in

legal possession of the subject property, the suit deserved to be

dismissed.

On the basis of pleadings, the learned trial Court framed

four issues including relief. After recording evidence of the

respective parties, the learned trial Court dismissed the suit vide

judgment and decree dated 10.05.2012. The civil first appeal

preferred thereagainst by the plaintiff has also been dismissed by

the learned Appellate Court vide judgment and decree dated

07.07.2017.

Assailing the impugned judgment and decree, learned

counsel for the plaintiff submits that while dismissing the suit, the

learned Courts did not appreciate that he was in possession of the

subject property for last about 50 years. He, therefore, prays that

the civil second appeal be allowed, the judgment and decree dated

07.07.2017 be quashed and set aside and the suit filed by him be

decreed.

Heard. Considered.

[2023:RJ-JP:17141] (3 of 3) [CSA-628/2017]

While dismissing the suit, the learned trial Court has held

that while, the plaintiff could not establish his ownership over the

subject property, from the documents submitted by the

defendants; such as, Mauka Report Patwari (Ex-A-1), the order

sheet dated 18.03.2005 (Ex-A-3) of the Court of ACM, Bharatpur

and orders passed therein as also order of the Tehsildar, Bharatpur

(Ex-A-5), it was apparent that the plaintiff has encroached upon a

part of "Gair Mumkin Rasta" and an order has been passed for his

eviction under Section 91 of the Act of 1956. It was also held that

since, the plaintiff has approached the Court concealing the fact

that an order of eviction has already been passed by the Tehsildar,

Bharatpur under Section 91 of the Act of 1956, he was disentitled

for the equitable relief of injunction. The findings have been

upheld by the learned Appellate Court reappreciating the evidence

on record. In the backdrop of the settled legal principle that no

encroachee on the land of public way is entitled for the decree of

permanent injunction in the considered opinion of this court, the

learned Courts did not err in dismissing the suit.

Learned counsel for the plaintiff could not satisfy this Court

that these concurrent findings of facts recorded by the learned

Courts based on appreciation of evidence suffer from any illegality,

infirmity, perversity or jurisdictional error 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/97

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