Grameen Janta Nareda Kalan vs Babulal S/O Shri Ramnivas ...
2023 Latest Caselaw 5800 Raj/2

[2023:RJ-JP:28284]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 742/2017
Grameen Janta Nareda Kalan through Ghanshyam Sharma S/o
Kishan Sahay Sharma, Resident of Nareda Kalan Tehsil Behror,
District Alwar (Rajasthan)

                                                    ----Appellant-Plaintiff No.2
                                     Versus
1.       Babulal S/o Shri Ramnivas
2.       Sitaram S/o Shri Ramnivas
3.       Prakash Chand S/o Shri Ramnivas
4.       Ashok S/o Shri Ramnivas
         All Resident Of Nareda Kalan Tehsil Behror District Alwar
         Rajasthan.
                                         Defendants/Respondents

5. Shyam Sundar S/o Murarilal, Aged About 50 Years, Resident Of Nareda Kalan Tehsil Behror District Alwar (Rajasthan).

                                                ----Respondent-Plaintiff No.1


For Appellant(s)           :     Mr. Mithun Chaturvedi
For Respondent(s)          :


    HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
                  Judgment / Order
10/10/2023

This civil second appeal is preferred against the judgment

and decree dated 11.08.2017 passed by the learned Additional

District Judge No.1, Behror, District Alwar (for brevity "the learned

appellate Court") in Civil Regular Appeal No.4/2013 whereby,

while dismissing the appeal preferred by the appellant/plaintiff

No.2 (for short "the plaintiff No.2), the judgment and decree

dated 06.03.2013 passed by the learned Civil Judge (Senior

Division), Behror, District Alwar (for short "the learned trial

Court") dismissing the Civil Suit No.188/2003 filed by the plaintiff

No.2 and the proforma respondent No.5/Plaintiff No.1 for

permanent injunction, have been affirmed.

[2023:RJ-JP:28284] (2 of 4) [CSA-742/2017]

The relevant facts in brief are that the plaintiff No.2 and the

proforma respondent No.5 filed a suit for permanent injunction

against the respondents No.1 to 4/defendants (hereinafter

referred to as "the defendants") stating therein that the subject

land measuring 19 feet, situated towards the eastern side of the

shop and "Khokha" (wooden cabin) of the plaintiff No.1, was being

used as a way as of right by the villagers since the time

immemorial. Alleging that the defendants have encroached upon

the aforesaid public way, the decree as aforesaid was prayed for.

The defendants in their joint written statement, denying the

averments made in the plaint, submitted that the plaintiff No.1

has raised construction of the shop and "Khokha" encroaching on

the land belonging to the Public Works Department (PWD). It was

denied that they have encroached upon the subject land.

Dismissal of the suit, therefore, was prayed for.

On the basis of pleadings of the parties, the learned trial

Court framed three issues including relief. After recording evidence

of the respective parties, the learned trial Court dismissed the suit

vide judgment and decree dated 06.03.2013. The civil first appeal

preferred thereagainst by the plaintiff No.2 has also been

dismissed by the learned appellate Court vide judgment and

decree dated 11.08.2017.

Assailing the impugned judgment and decree, learned

counsel for the plaintiff No.2 submits that the learned Courts erred

in dismissing the suit relying solely upon the order passed under

Section 133 CrPC. He submits that since, the defendants

themselves have admitted the subject land to be a part of PWD's

land in their written statement; the suit ought to have been

[2023:RJ-JP:28284] (3 of 4) [CSA-742/2017]

decreed. He, therefore, prays that the civil second appeal be

allowed, the judgment and decree dated 11.08.2017 be quashed

and set aside and the suit be decreed.

Heard. Considered.

While dismissing the suit, the learned trial Court has, after

appreciating the evidence on record, held that not only the

plaintiff No.1; but, almost all the plaintiff witnesses have admitted

during their cross-examination that the subject land, comprising of

a part of Khasra No.415, was purchased by the defendants

through the registered sale deed and it was mutated in the

revenue record in their name. It was also held that the plaintiffs

failed to establish the subject land to be part of the public way or

that it was being used by the public at large as the way; rather, it

was held that admittedly, there was an alternative way available

to the plaintiffs and the other villagers contrary to the case set up

in the pleading that the subject way is the only way available for

use. Although, while deciding the issues No.1 & 2, the learned trial

Court has also referred to the order passed under Section 133

CrPC whereby, the complaint filed by the plaintiffs alleging

encroachment by the defendants over the subject land was

dismissed; but, it was only one of the factors taken into

consideration by the learned trial Court while dismissing the suit

and the findings are not based solely upon this order. The

aforesaid findings have been affirmed by the learned appellate

Court re-appreciating the evidence on record. These concurrent

findings of facts have not been assailed by the learned counsel for

the plaintiff No.2 before this Court.

[2023:RJ-JP:28284] (4 of 4) [CSA-742/2017]

In view thereof, in the considered opinion of this Court, the

learned Courts did not err in dismissing the suit for permanent

injunction.

Since, this civil second appeal is devoid of any substantial

question of law, the same is dismissed.

(MAHENDAR KUMAR GOYAL),J

Manish/86

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