Budhram Son Of Mula vs Ram Sahay Son Of Babu Lal ...
2023 Latest Caselaw 5944 Raj/2

[2023:RJ-JP:28807]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 254/2020

1.       Budhram Son Of Mula, Aged About 54 Years, Resident Of
         Village Mahu Ibrahimpur, Tehsil Hindoun City, District
         Karauli (Raj)
2.       Nekram Son Of Mula, Aged About 36 Years, Resident Of
         Village Mahu Ibrahimpur, Tehsil Hindoun City, District
         Karauli (Rajasthan)
                                                    ----Defendants/Appellants
                                     Versus
Ram Sahay Son Of Babu Lal, Resident Of Village Mahu
Ibrahimpur, Tehsil Hindoun City, District Karauli (Rajasthan).
                                                        ----Plaintiff-Respondent

For Appellant(s)           :     Mr. Dheeraj Singhal
For Respondent(s)          :     Mr. Puneet Singh for
                                 Mr. Ranvir Singh



       HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                           Judgment / Order

12/10/2023

This civil second appeal, which is reported to be time barred

by 300 days, is accompanied with an application under Section 5

of the Limitation Act, 1963.

Although, the reasons assigned in the application seeking

condonation of inordinate delay of 300 days are not satisfactory;

however, in the interest of justice, the application is allowed and

the delay is condoned.

This civil second appeal is preferred against the judgment

and decree dated 31.07.2019 passed by the learned Additional

District Judge No.2, Hindaun City (Karauli) (for brevity, "the

learned Appellate Court") in Civil Regular Appeal No.37/16(20/15)

[2023:RJ-JP:28807] (2 of 4) [CSA-254/2020]

(CIS No.25/16) whereby, while dismissing the appeal, the

judgment dated 21.04.2015 passed by the learned Civil Judge,

Hindaun City, District Karauli (Rajasthan) (for brevity, "the learned

trial Court") decreeing the Civil Suit No.30/2010 filed by the

respondent-plaintiff (for brevity, "the plaintiff") for permanent

injunction, has been affirmed.

The relevant facts in brief are that the plaintiff filed a suit for

permanent injunction against the appellants/defendants (for

brevity, "the defendants") stating therein that he was under

ownership and possession of a residential plot measuring 30 ft. x

45 ft. situated in village Mahu Ibrahimpur, having purchased it

from Shri Mawasi through a registered sale deed dated

22.03.2010. It was averred that after purchasing the aforesaid

plot, he raised construction of 1 ft. high boundary wall towards its

eastern side digging foundation and has also constructed a Hut.

Alleging that the defendants wanted to forcibly encroach upon the

land of plaintiff, 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 plot as

claimed by the plaintiff, existed at the site. It was averred that the

subject land was their ancestral land and they were in its

possession for last about 35 years. Dismissal of the suit,

therefore, was prayed for.

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

Court framed four issues including relief. After recording evidence

of the plaintiff as the defendants did not lead any evidence, the

learned trial Court decreed the suit vide judgment dated

21.04.2015. The civil first appeal preferred thereagainst by the

[2023:RJ-JP:28807] (3 of 4) [CSA-254/2020]

defendants has been dismissed by the learned Appellate Court

vide judgment and decree dated 31.07.2019.

Assailing the impugned judgment and decree, learned

counsel for the defendants submits that since, in the application

filed by the plaintiff seeking execution of the impugned decree

dated 31.07.2019, the plaintiff has also claimed possession of the

subject property, it is apparent that he was not in its possession

and therefore, the learned Courts erred in granting him decree of

permanent injunction. He, therefore, prays that the civil second

appeal be allowed, the judgment and decree dated 31.07.2019 be

quashed and set aside and the suit be dismissed.

Heard. Considered.

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

the basis of oral as well as documentary evidence on record

including the registered sale deed (Ex-2) and the site plan (Ex-1),

that after purchasing the subject plot from its erstwhile owner Shri

Mawasi, the plaintiff acquired its possession, has raised

construction of a boundary wall towards its eastern side and has

also erected a Hut. It was noted by the learned trial Court that

there was a certificate issued by the concerned Gram Panchayat

about ownership of the subject plot in favour of Shri Mawasi.

These findings have been upheld by the learned Appellate Court

re-appreciating the evidence on record. In view of the aforesaid

findings based on unrebutted evidence of the plaintiff, in the

considered opinion of this Court, the learned Courts did not err in

decreeing the suit filed by the plaintiff for permanent injunction as

he was found in lawful possession of the subject plot.

[2023:RJ-JP:28807] (4 of 4) [CSA-254/2020]

Since, there is a concurrent finding of fact recorded by the

learned Appellate Court as also by the learned trial Court with

regard to lawful possession of the plaintiff over the subject plot,

which has not been shown to be suffering from perversity by the

learned counsel for the defendants, his contention based on

alleged execution application filed by the plaintiff, which is not

even a part of the record, is wholly misconceived and does not

merit acceptance.

Resultantly, the civil second appeal is dismissed being devoid

of any substantial question of law.

(MAHENDAR KUMAR GOYAL),J

Sudha /323

Powered by TCPDF (www.tcpdf.org)