Rajesh vs Jyoti
2023 Latest Caselaw 5183 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 290/2022

1. Rajesh S/o Ratan Lal, Aged About 45 Years, R/o Pratapgarh at present in front of Indore Dharamshala, do batti road, Ratlam, MP

2. Gita Bai W/o Rajesh, Aged About 42 Years, R/o Pratapgarh at present in front of Indore Dharamshala, do batti road, Ratlam, MP

----Appellants Versus

1. Jyoti W/o Pramod, Aged About 48 Years, R/o At Present Dahod, Gujarat.

2. Arjun Lal S/o Gendmal, Aged About 61 Years, R/o Mahal Darwaja, Pratapgarh.

3. Vidyasagar S/o Mangi Lal, aged about 55 years, R/o Pratapgarh.

                                                                  ----Respondents


For Appellant(s)           :     Mr. Rajesh Panwar, Sr. Advocate
                                 assisted by
                                 Mr. Chandra Mohan Sharma
For Respondent(s)          :     --

HON'BLE MS. JUSTICE REKHA BORANA Order

24/05/2023

1. The following substantial questions of law arise in the

present appeal:

(i) Whether the first Appellate Court erred in reversing the

findings on issue No.2 without considering the fact as to

how the present appellants-defendants No.2 and 3 could

have encroached on the plot of the plaintiffs when it was

an admitted fact on record that there was one plot of

Kanchan Bai existing between the two plots and ignoring

the fact that Kanchan Bai was not impleaded in the

present suit?

(ii) Whether the first Appellate Court erred in reversing the

findings of the Trial Court on issue No.2 despite the

(2 of 2) [CSA-290/2022]

specific admissions of the plaintiffs themselves that no

action of encroachment was attributable to the present

appellants-defendants No.2 and 3?

(iii) Whether the first Appellate Court erred in reversing the

finding on issue No.2 only because of the fact that

appellants-defendants had preferred an application under

Order IX Rule 13, CPC for setting aside of the ex-parte

decree passed against them?

2. Admit. Issue notice. Issue notice of stay petition also.

Notices be filed in two sets. One set of notices be given

'dasti' to learned counsel for the appellants for service through

registered post, acknowledgement due. Notices be made

returnable within a period of four weeks.

Postal receipts of the 'dasti' notices be filed within a period of

one week from the date of receipt of 'dasti' notices.

3. Call for the record.

4. Meanwhile, the effect and operation of the judgment and

decree dated 28.07.2022 passed by District Judge, Pratapgarh in

Civil Appeal No.17/2018 qua the present appellants shall remain

stayed.

(REKHA BORANA),J 5-Sachin/-

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