Laxman Gurjar S/O Shri Mangi Lal ... vs Pooran Chand Sharma S/O Shri Kalla ...
2023 Latest Caselaw 4351 Raj/2

[2023:RJ-JP:19917]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 558/2017

 1. Laxman Gurjar S/o Mangi Lal Gurjar R/o Makadwali Tehsil and
 District Ajmer (By Order dated 02.02.2011 transposed as
 appellant no.4)
 2. Beeram Gurjar S/o Mangi Lal Gurjar, R/o Makadwali Tehsil
 And District Ajmer. (By Order Dated 02-02-2011 Transposed As
 Appellant No. 5)
                                                     ----Appellants/Defendants
                              Versus
 1. Pooran Chand Sharma S/o Shri Kalla Ram Sharma R/o
 28/256A Bihariganj Nasirabad Road Ajmer (Since Deceased)
 through his legal heirs:-
 1/1. Smt. Shanti W/o Late Shri Pooran Chand
 1/2. Rakesh Sharma S/o Late Shri Pooran Chand
 1/3. Anita D/o Late Shri Pooran Chand
 R/o 556A/28 Geeta Nagar Bihari Ganj Ajmer
 2. Smt. Chanchla Aludiya W/o Shri Prem Chand Aludiya Ro
 House No.234/51 in front of Basant Bihari Colony Nayabada PS
 Ajmer (Impleaded as respondnet vide order dated 11.08.2010)
 3. Prem Chand Aludiya S/o Late Bhanwar Lal Aludiya R/o House
 No.234/51 in front of Basant Bihar Colony Nayabada Police Line
 Ajmer (Impleaded as respondent vide order dated 11.08.2010)

----Respondents/Plaintiffs

4. Smt. Vijay Laxmi W/o Shri Jay Shankar R/o 28/1002 Bihari Ganj Geeta Nagar Nasirabad Road Ajmer

5. Jay Shankar S/o Shri Shankaran Nayar R/o 28/1002 Bihari Ganj Geeta Nagar Nasirabadd Road Ajmer

----Proforma Respondents/Defendants-Original Appellants

6. Vinod Kumar S/o Mohan Lal B/c Rajput R/o Vikas Marg Bhajanganj Ajmer At Present R/o Geeta Nagar Bihari Ganj Nasirabad Road Ajmer

----Proforma Respondent/Transposed as appellant vide order dated 25.04.2008

For Appellant(s) : Mr. Jai Prakash Gupta with Mr. Ravi Singh For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment / Order 29/08/2023

This civil second appeal is preferred against the judgement

and decree dated 19.05.2017 passed by the learned Additional

District Judge No.3, Ajmer (Rajasthan) (for brevity, "the learned

appellate Court") in Civil Appeal No.24/16 (10/13, 97/95)

[2023:RJ-JP:19917] (2 of 4) [CSA-558/2017]

whereby, while dismissing the appeal preferred by the

appellants/defendants (for brevity, "the defendants"), the

judgement dated 04.08.1995 passed by the learned Civil Judge

(Junior Division), Ajmer City North, Ajmer (for brevity, "the

learned trial Court") decreeing the Suit No.169/1990 filed by the

predecessor-in-interest of the respondents for permanent

injunction, has been affirmed.

The relevant facts in brief are that Shri Puran Chand Sharma,

the predecessor-in-interest of the respondents no.1/1 to 1/3, filed

a suit for permanent injunction stating therein that there is a 25

feet public way existing towards southern side of his residential

house having opening of his gates towards it and being used by

him for last about 25 years. Alleging that the defendants wanted

to raise construction on this 25 feet subject way and obstructing

it, the decree, as aforesaid, was prayed for.

The defendants in their joint written statement, denying the

averments made in the plaint, submitted that no such way exists

at the site. It was averred that the plaintiff has right of way

towards the northern side of his house. 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 decreed the suit

qua 20 feet only vide judgement dated 04.08.1995 and the civil

first appeal preferred thereagainst by the defendants has also

been dismissed by the learned appellate Court vide judgement

and decree dated 19.05.2017.

[2023:RJ-JP:19917] (3 of 4) [CSA-558/2017]

Assailing the impugned judgement and decree, learned

counsel for the defendants submits that the learned appellate

Court erred in dismissing the application filed by them under

Order 41 Rule 27 CPC alongwith the appeal instead of deciding it

separately that too without appreciating the nature of the

documents. Learned counsel further submits that the suit filed by

the plaintiff simplicitor for injunction in absence of prayer for

declaration was not maintainable. He, therefore, prays that the

civil second appeal be allowed, the judgement and decree dated

19.05.2017 be quashed and set aside and the suit be dismissed.

Heard. Considered.

While decreeing the suit, the learned trial Court has held that

from the documentary evidence submitted by the plaintiff such as

Ex. 1, the construction plan of the residential house of the plaintiff

as approved by the Municipal Council, Ajmer, it was established

that there existed a 20 feet wide public way towards southern side

of his house constructed way back in the year 1964. It was held

that since the suit was filed in the year 1988, it was proved that

the plaintiff was using the subject way for last about 24-25 years.

On the basis of the evidence on record, it was further held that

main gate of the plaintiff's house has its opening towards its

southern side whereas, towards its northern side, there is only a

passage meant for sweeper. The aforesaid findings have been

affirmed by the learned appellate Court re-appreciating the

evidence on record. The learned appellate Court has further held,

after critically analyzing the cross examination of the defendant

no.2-S. Jai Shankar (DW-1) that he has admitted therein

existence of a gate and windows of the plaintiff's house towards

[2023:RJ-JP:19917] (4 of 4) [CSA-558/2017]

its southern side. These concurrent findings of facts have not been

shown by the learned counsel for the defendants to be suffering

from any illegality, infirmity, perversity or jurisdictional error.

Contention of learned counsel for the defendants that in

absence of a decree of declaration, the suit simplicitor for

injunction was not maintainable is misconceived and does not

merit acceptance. The plaintiff has been able to establish

existence of a 20 feet wide public way towards southern side of his

house which was being used by him peacefully and without

obstruction for last about 24-25 years prior to institution of the

suit. In view thereof, the suit simplicitor for injunction based on

uninterrupted, peaceful and settled use of the public way even in

absence of a prayer for decree for declaration was maintainable.

Similarly, submission of the learned counsel for the

defendants that the learned appellate Court erred in dismissing

the application filed by them under Order 41 Rule 27 CPC cannot

be countenanced inasmuch as the application has been dismissed

by the learned appellate Court at the time of deciding the civil first

appeal on its merit; although, by a separate order. Further, a

perusal of the order dated 19.05.2017 passed by the learned

appellate Court rejecting the application reveals that cogent

reasons have been assigned therein for its rejection.

In view of the aforesaid discussion, the civil second appeal is

dismissed being devoid of any substantial question of law.

(MAHENDAR KUMAR GOYAL),J

PRAGATI/100

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