Rajasthan High Court
Birdhichand S/O Kalulal vs Smt. Ayodhyabaiw W/O Tulsiram ... on 15 February, 2023
Bench: Mahendar Kumar Goyal
[2023/RJJP/002875]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 388/2019
Birdhichand S/o Kalulal, R/o Repla, Tehsil Jhalarapatan, District
Jhalawar (Raj.)
----Appellant-Defendant
Versus
Smt. Ayodhyabai W/o Tulsiram, R/o Repla, Tehsil Jhalarapatan,
District Jhalawar (Raj.)
----Respondent-Plaintiff
For Appellant(s) : Ms. Akanksha Saxena
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment
15/02/2023
The civil Second appeal is preferred against the judgment
and decree dated 01.05.2019 passed by the learned Additional
District Judge, Jhalawar (for brevity, "the learned Appellate
Court") in Civil Regular Appeal No.16/2013 whereby, while
dismissing the appeal, the judgment dated 22.08.2013 passed by
the learned Additional Civil Judge (Senior Division) Jhalawar (for
brevity, "the learned trial Court") decreeing the Suit No.05/2011
filed by the respondent/plaintiff (for brevity, "plaintiff") for
mandatory and permanent injunction, has been affirmed.
The relevant facts in brief are that the plaintiff filed a suit for
permanent and mandatory injunction against the
appellant/defendant (for brevity, "defendant") with the averments
that he wanted to encroach upon a 10 feet wide public way
situated in between the plots of the parties. The defendant
[2023/RJJP/002875] (2 of 3) [CSA-388/2019]
denying existence of any public way in between their plots in his
written statement, filed a counter claim seeking a decree of
injunction against the plaintiff not to encroach upon land of his
plot.
On the basis is pleadings of the parties, the learned trial
Court settled three issues.
After recording evidence of the respective parties, the
learned trial Court decreed the suit vide its judgment dated
22.08.2013 which has been affirmed by the learned Appellate
Court vide its judgment and decree dated 01.05.2019.
Assailing the judgment and decreed, learned counsel for the
defendant submits that the learned Court erred in not appreciating
the Ex-A2, the patta issued in his favour which did not disclose
existence of any public way towards its western side, i.e., towards
the plot of the plaintiff. She, therefore, prays that the civil second
appeal be allowed, the judgment and decree dated 01.05.2019 be
quashed and set aside and the suit filed by the plaintiff be
dismissed.
Heard. Considered.
The learned Court has returned the findings qua Issue No.1
as to existence of a 10 feet way in between plots of the parties in
favour of the plaintiff taking into consideration the oral as well as
the documentary evidence on record. It was appreciated that in
the Ex-1, patta and the Ex-2, the sale deed, both issued and
executed by the Gram Panchayat Thobadiya in favour of the
plaintiff, a 10 feet wide public way has been shown towards
eastern side of her plot i.e. towards plot of the defendant and in
the Ex-A2, the patta issued by the same Gram Panchayat in favour
[2023/RJJP/002875] (3 of 3) [CSA-388/2019]
of the defendant, a 10 feet wide way has been shown towards its
western side, i.e., towards plot of the plaintiff. This Court has also
gone through the aforesaid documents and finds no perversity in
the findings recorded by the learned Court. Further, the defendant
as DW-1 has admitted during his cross-examination that a 10 feet
wide way has been shown towards western side in the patta
issued to him; but, claims that it does not exist at the site.
In view of the aforesaid evidence, in the considered opinion
of this Court, the learned Court did not err in holding that a 10
feet wide way exists in between the plots of the parties and in
decreeing the suit filed by the plaintiff.
Since, no substantial question of law is involved in the civil
second appeal, the same is dismissed accordingly.
(MAHENDAR KUMAR GOYAL),J
Sudha/107
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