Murari Lal S/O Shri Heera Lal vs Girraj Prasad S/O Shri Madan Mohan ...
2023 Latest Caselaw 6295 Raj/2

[2023:RJ-JP:31752]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 76/2023

1.       Murari Lal S/o Shri Heera Lal, (Since Deceased) Through
         His Legal Representatives-
1/1.     Keshari Chand S/o Late Sh. Murari Lal
1/2.     Mukesh Kumar S/o Late Sh. Murari Lal
1/3.     Dinesh Chand S/o Late Sh. Murari Lal
1/4.     Rishi Mohan S/o Late Sh. Murari Lal
         All R/o Halwai Paysa Ward No. 6 Kumher Distt. Bharatpur.
1/5.     Vimla W/o Shri Kedar Nath D/o Late Sh. Murari Lal, R/o
         Sher Singh Colony, Bharatpur.
1/6.     Kamla W/o Shri Prem Prakash D/o Late Sh. Murari Lal,
         R/o Station Road Bayana Distt. Bharatpur.
1/7.     Snehlata D/o Late Sh. Murari Lal, R/o Behind Old Laxman
         Mandir Bharatpur.
                                                       ----Plaintiffs/Appellants
                                    Versus
1.       Girraj Prasad S/o Shri Madan Mohan, R/o Halwai Paysa
         Ward No. 6 Kumher Distt. Bharatpur.
2.       Kailash Kumar S/o Sh. Madan Lal, R/o Halwai Paysa Ward
         No. 6 Kumher Distt. Bharatpur(Since Deceased).
3.       Rakesh Kumar S/o Shri Madan Mohan, R/o Halwai Paysa
         Ward No. 6 Kumher Distt. Bharatpur.
4.       Nagar Palika, Kumher Through Executive Officer, Nagar
         Palika Kumher, Distt. Bharatpur.
                                                ----Defendants/Respondents

For Appellant(s)          :     Mr. Ramesh Kumawat
For Respondent(s)         :



       HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                          Judgment / Order

30/10/2023





 [2023:RJ-JP:31752]                     (2 of 5)                            [CSA-76/2023]

This civil second appeal is preferred against the judgment

and decree dated 11.01.2023 passed by the learned Additional

District Judge No.2, Bharatpur (for brevity "the learned appellate

Court") in Regular Civil Appeal No.102/2004 (353/2014) whereby,

while dismissing the appeal, the judgment and decree dated

31.03.2004 passed by the learned Additional Civil Judge (Junior

Division) No.4, Bharatpur (for short "the learned trial Court")

dismissing the Civil Suit No.414/2002 filed by the

appellants/plaintiffs (for brevity "the plaintiffs") for permanent

injunction, have been upheld.

The relevant facts in brief are that the plaintiffs filed a suit

for permanent injunction against the respondents/defendants (for

brevity "the defendants") stating therein that a residential

property, as described in the map annexed with the plaint, was

under their ownership and possession. It was averred that towards

its eastern side, there is a public way and the defendants No.1 to

3 have obtained permission from the defendant No.4 on

21.12.1999 to raise construction of a residential house thereon on

the basis of a forged sale deed executed in their favour by the

Gram Panchayat Kumher without any authority. It was further

stated that late Madan Mohan, father of the defendants No.1 to 3,

in the Civil Suit No.69/1974 filed by him against the plaintiffs, has

admitted the aforesaid land to be part of the public way.

Therefore, the decree of permanent injunction was prayed for

restraining the defendants from raising construction on the land of

the public way.

The defendants No.1 to 3 in their joint written statement,

denying the averments made in the plaint, submitted that the

[2023:RJ-JP:31752] (3 of 5) [CSA-76/2023]

disputed land was not part of the public way; rather, it was under

their ownership and possession having been purchased by their

father late Madan Mohan from the then Gram Panchayat, Kumher

vide sale deed dated 23.10.1965. It was averred that at that time

also, their father had obtained permission to raise construction of

a residential house thereon; but, no construction could be raised

on account of financial constraints and therefore, a fresh

construction permission has been obtained from the defendant

No.4 on 21.12.1999. Dismissal of the suit, therefore, was prayed

for.

The defendant No.4 in its written statement submitted that

the subject land was not recorded as public way in the municipal

record. It was averred that it has rightly and validly issued the

construction permission to the defendants No.1 to 3 on

21.12.1999.

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

Court framed six issues including relief. After recording evidence

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

vide judgment and decree dated 31.03.2004. The civil first appeal

preferred thereagainst by the plaintiffs has also been dismissed by

the learned appellate Court vide judgment and decree dated

11.01.2023.

Assailing the impugned judgment and decree, the learned

counsel for the plaintiffs submits that the learned Courts did not

appreciate that in the Civil Suit No.69/1974 filed by late Madan

Mohan, father of the defendants No.1 to 3, he had admitted the

subject land to be a part of the public way. He submits that from

the evidence on record it was established that the Gram

[2023:RJ-JP:31752] (4 of 5) [CSA-76/2023]

Panchayat did not have any authority to execute the sale deed of

the subject land in favour of the father of the defendants No.1 to

3. He, therefore, prays that the civil second appeal be allowed, the

judgment and decree dated 11.01.2023 be quashed and set aside

and the suit be decreed.

Heard. Considered.

While deciding the issue No.1 against the plaintiffs and

dismissing the suit, the learned trial Court has recorded a

categorical finding after appreciating the oral as well as the

documentary evidence on record that the plaintiffs could not

establish the subject land to be a part of the public way. Taking

note of the objections submitted by the plaintiffs to the permission

sought by the defendants No.1 to 3 from the defendant No.4 for

raising construction on the land, it was held that therein the

plaintiffs have claimed the subject land to be under their

ownership and possession quite contrary to their pleading in which

they have come out with a case that it was part of the public way.

It was also held that the defendant No.4 has categorically stated

in its written statement that the subject land was not recorded in

its record as the public way. Re-appreciating the evidence on

record, the learned appellate Court has affirmed these findings. It

has also been held by the learned appellate Court that the father

of the defendants No.1 to 3 had purchased the subject property

from the Gram Panchayat, Kumher on 23.10.1965 after payment

of its cost and was granted construction permission on

18.11.1965. It was considered and appreciated that the appeal

preferred by the plaintiffs against the construction permission

dated 23.12.1998 granted by the defendant No.4 in favour of the

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defendants No.1 to 3 came to be dismissed by the Additional

District Collector, Bharatpur vide judgment dated 16.10.2003. It

was further held that merely because in the civil suit No.59/1974

filed by late Madan Mohan, it was mentioned that the subject land

was an open land, it could not be reckoned as the public way.

In view of the aforesaid concurrent findings of facts, in the

considered opinion of this Court, the learned trial Court did not err

in dismissing the suit filed by the plaintiffs for permanent

injunction.

Since, concurrent findings of facts recorded by the learned

trial Court have not been shown by the learned counsel for the

plaintiffs to be suffering from any illegality, infirmity, perversity or

jurisdictional error, this civil second appeal is dismissed being

devoid of merit.

(MAHENDAR KUMAR GOYAL),J

Manish/42

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