Rajasthan High Court
Ramesh Chand S/O Sh. Manna Lal vs Vishambhar Dayal S/O Prakash ... on 13 February, 2023
Bench: Mahendar Kumar Goyal
[2023/RJJP/002619]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 494/2019
Ramesh Chand S/o Sh. Manna Lal, Aged About 66 Years, R/o
Village Gudha Chandraji, Tehsil Nadoti, District Karauli
----Appellant/Plaintiff
Versus
1. Vishambhar Dayal S/o Prakash Narayan Choudhary @
Prakash Chand, Aged About 57 Years, R/o Village Gudha
Chandraji, Tehsil Nadoti, District Karauli
2. Pintu Lal S/o Prakash Choudhary @ Prakash Chand, Aged
About 46 Years, R/o Village Gudha Chandraji, Tehsil
Nadoti, District Karauli
3. Govind S/o Prakash Narayan Choudhary @ Prakash
Chand, Aged About 50 Years, R/o Village Gudha
Chandraji, Tehsil Nadoti, District Karauli
----Respondents/Defendants
For Appellant(s) : Mr. Neeraj K. Tiwari
For Respondent(s) : Mr. L.L. Gupta with
Mr. Lakshaya Kumar Sharma
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
13/02/2023
This civil second appeal is preferred by the appellant/plaintiff
(for brevity "the plaintiff") against the judgment and decree dated
29.08.2019 passed by the learned Additional District Judge No.1,
Hindaun City (hereinafter referred to as "the learned appellate
Court") in Regular Civil Appeal No.11/2017, CIS No.19/2017
whereby, while partly allowing the appeal preferred by the
respondents/defendants (for short "the defendants"), the
judgment dated 03.06.2017 passed by the learned Civil Judge,
Shree Mahaveer Ji, District Karauli (for brevity "the learned trial
[2023/RJJP/002619] (2 of 4) [CSA-494/2019]
Court") decreeing the Civil Suit No.26/2013 filed by the plaintiff
for permanent injunction, has been modified.
The relevant facts in brief are that the plaintiff filed a suit for
permanent injunction against the defendants with the averments
that eastern wall of his shop marked as "AE" in the site plan
annexed with the plaint was under his exclusive ownership and
possession for last about fifty years which the defendants wanted
to damage and demolish in the garb of repairing of their shop.
Thus, a decree of permanent injunction was prayed for.
The defendants in their written statement submitted that the
subject wall was common wall in between the shops of the parties
and was being used by the defendants for centuries since the time
of their forefathers. It was submitted that for repairing of their
shop, the subject wall was required to be used by them. They,
therefore, prayed for dismissal of the suit.
On the basis of pleadings of the parties, the learned trial
Court framed four issues. After recording evidence of the
respective parties, the learned trial Court decreed the suit vide its
judgment dated 03.06.2017 whereby, the defendants were
restrained from damaging the subject wall and not to carry out
repairing/raise construction in a way so as to damage the wall and
the shop towards the plaintiff's side. In the civil first appeal
preferred by the defendants, the learned appellate Court has
modified the decree and has restrained the defendants from
damaging the wall and permitted its use in the manner not to
damage it as also the shop of the plaintiff.
Assailing the impugned judgment and decree passed by the
learned appellate Court, learned counsel for the plaintiff submitted
[2023/RJJP/002619] (3 of 4) [CSA-494/2019]
that in the sale deed dated 24.12.1962 (Ex.-2) of the subject shop
executed by its erstwhile owner Smt. Janki Bai in favour of his
father Shri Manna Lal, width of the shop was mentioned as 14.7
Feet which included the subject wall also. He submitted that this
fact established that the wall in question was under his exclusive
ownership and possession and the learned appellate Court erred in
permitting the defendants to use the same for the purpose of
repairing their shop. He, therefore, prays that the second appeal
be allowed, the judgment and decree dated 29.08.2019 be
quashed and set aside and the judgment and decree dated
03.06.2017 passed by the learned trial Court be restored.
Per contra, learned counsel for the respondents, inviting
attention of this Court towards the finding recorded by the learned
trial Court on issue No.1, would submit that it has been held that
the plaintiff failed to establish that the subject wall marked as "AE"
was constructed by him and the defendants at the time of
construction of their shop, did not contribute in raising the same.
He submits that this finding was never challenged by the plaintiff
and has attained finality. He submits that the learned appellate
Court has, after appreciating the material on record, held that for
repairing of the shop of the defendants, it was imperative for them
to take help of this common wall marked "AE". Learned counsel
submits that there is no perversity in the finding recorded by the
learned appellate Court and hence, the second appeal deserves to
be dismissed.
Heard. Considered.
The learned trial Court has recorded a categorical finding
after appreciating the oral as well as the documentary evidence of
[2023/RJJP/002619] (4 of 4) [CSA-494/2019]
the respective parties vide judgment dated 03.06.2017 that the
wall marked "AE" existed when the shops were constructed
originally and none of the parties has raised its construction. It
has also been held that the plaintiff has admitted as PW-1 that the
subject wall was being used commonly by both the parties and
they both have constructed/installed stone shelfs/almirahs in it.
After appreciating the sale deed (Ex.-2), the learned trial Court
has recorded a finding that it is not established that width of the
shop mentioned therein is inclusive of the subject wall. In view of
the aforesaid categorical findings recorded even by the learned
trial Court which remained unchallenged by the plaintiff, in the
considered opinion of this Court, learned appellate Court did not
err in modifying the decree passed by the learned trial Court
granting absolute injunction against the defendants and permitting
them to use the subject wall for repairing of their shop in a
manner not to damage the same as also shop of the plaintiff.
Learned counsel for the plaintiff has failed to demonstrate that
findings recorded by the learned appellate Court suffer from any
perversity.
Since, no substantial question of law is found to be involved
in this civil second appeal, the same is dismissed accordingly.
(MAHENDAR KUMAR GOYAL),J
Manish/72
Powered by TCPDF (www.tcpdf.org)
