Rajasthan High Court
Khand Brahmin Samaj Gudhachandra ... vs Ghanshyam And Ors ... on 4 September, 2023
Bench: Mahendar Kumar Goyal
[2023:RJ-JP:20761]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 94/2017
Khand Brahmin Samaj Gudhachandra Ji Through Dinesh Chand
Jaimini S/o Shri Shiv Charan R/o Gudhachandra Ji, Tehsil Nadoti,
District Karauli.
----Appellant
Versus
1. Ghanshyam S/o Shyam Sunder Sharma, R/o
Gudhachandra Ji, Deceased
2. Girraj S/o Kalyan R/o Gudhachandra Ji, Deceased
3. Balbhadra S/o Ram Kishan R/o Gudhachandra Ji, Tehsil
Nadoti, District Karauli.
4. Ram Gopal S/o Ramji Lal R/o Gudhachandra Ji, Tehsil
Nadoti, District Karauli.
5. Rameshwar S/o Kadya R/o Ringaspura, At Present
Sarpanch, Gram Panchayat Gudhachandra Ji, Tehsil
Nadoti, Distt. Karauli.
6. Gram Panchayat Gudhachandra Ji, Through Its Sarpanch,
Gram Panchayat Gudhachandra Ji, Tehsil Nadoti, Distt.
Karauli.
7. Samudayik Swasthya Kendra, Gudhachandraji, Tehsil
Nadoti, District Karauli.
----Respondents-Defendants
For Appellant(s) : Mr. Arvind Kumar Sharma
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment / Order
04/09/2023
This civil second appeal, which is reported to be time barred
by 43 days, is accompanied with an application under Section 5 of
the Limitation Act, 1963 (for brevity, "the Act of 1963").
[2023:RJ-JP:20761] (2 of 5) [CSA-94/2017]
For the reasons stated in the application, the same is
allowed. The delay in preferring the civil second appeal is
condoned.
This civil second appeal is preferred against the judgment
and decree dated 08.09.2016 passed by the learned Additional
District Judge No.2, Hindaun City (Karauli-Rajasthan) (for brevity,
"the learned Appellate Court") in Original Civil Appeal No.99/2012
(151/11) whereby, while dismissing the appeal, the judgment and
decree dated 22.10.2011 passed by the learned Civil Judge (Junior
Division), Shri Mahavirji, District Karauli (Rajasthan) (for brevity,
"the learned trial Court") dismissing the Civil Case No.94/2001
[old 203/95 (141/98)] filed by the appellant-plaintiff (for brevity,
"the plaintiff") for permanent injunction, have been affirmed.
The relevant facts in brief are that the plaintiff filed a suit for
permanent injunction against the respondents/defendants (for
brevity, "the defendants") stating therein that there is a residential
plot measuring 80ft. X 190ft. situated in village Gudhachandra Ji
under its ownership and possession. Alleging that the defendants
wanted to encroach upon the subject land, the decree as
aforesaid was prayed for.
The defendants no.1 to 4 in their joint written statement
admitted that some construction material of the plaintiff was lying
in the subject plot. It was, however, submitted that the defendant
no.5 has, claiming the same to be under his ownership and
possession, offered to sell the same to them.
The defendant no.5 in his written statement, denying the
averments made in the plaint, submitted that though, the subject
[2023:RJ-JP:20761] (3 of 5) [CSA-94/2017]
land was under the ownership of Gram Panchayat Gudhachandra
Ji; but, was under his possession.
The defendant no.6 in its written statement submitted that
the subject property was under its ownership and possession.
The defendant no.7 in its written statement submitted that
the subject land, a part of Sivay Chak Land, has been allotted to it
by the defendant no.6 vide letter dated 13.04.1996 after setting it
apart by the Revenue Authorities.
The plaintiff in its rejoinder, denying the averments made by
the defendants in their respective written statements, reiterated
the averments made in the plaint.
On the basis of pleading of the parties, the learned trial
Court framed four issues. After recording evidence of the
respective parties, the learned trial Court dismissed the suit vide
its judgment and decree dated 22.10.2011 and the civil first
appeal preferred thereaginst by the plaintiff has also been
dismissed by the learned Appellate Court vide judgment and
decreed dated 08.09.2016.
Assailing the impugned judgment and decree, learned
counsel for the plaintiff submits that the findings of the learned
Courts are against the preponderance of probabilities in its favour.
He submits that the learned Courts did not appreciate that it was
able to establish from the evidence on record that the subject land
was under its ownership and possession. He, therefore, prays that
the civil second appeal be allowed, the judgment and decree dated
08.09.2016 be quashed and set aside and the suit be decreed.
Heard. Considered.
[2023:RJ-JP:20761] (4 of 5) [CSA-94/2017]
While dismissing the suit, the learned trial Court has held
that the plaintiff miserably failed to establish that the subject land
was under its ownership and possession. It was held that while,
the plaintiff Shri Gangadhar Mudgal claimed in the pleading the
subject property to be under his ownership; but, during the course
of his evidence as PW-1, he has stated that it was gifted on
17.05.1972 by Thakur Balbhadra Singh to the Brahmin Samaj;
but, this fact also could not be established from any evidence on
record; rather, from the ocular as also documentary evidence
available on record, since, it was established that prior to its
conversion in the year, 1990 to "Abadi", it was "Sivay Chak Land",
even otherwise also, it could not have been gifted by Thakur
Balbhadra Singh in the year, 1972. It was further held that the
before its conversion to "Abadi" in the year, 1990, the defendant
no.6, the Gram Panchayat, did not have any authority to issue its
patta in favour of any person.
The aforesaid findings have been affirmed by the learned
Appellate Court reappreciating the evidence on record. It has also
been held by the learned Appellate Court that the patta issued by
the Gram Panchayat in favour of the defendant no.7, Community
Health Centre, has been upheld by the Revisional Authority while
dismissing the revision petition preferred thereagainst by the
plaintiff. Since, the plaintiff has failed to establish its title and
possession over the subject property, in the considered opinion of
this Court, the learned Courts did not err in dismissing the suit
filed by it.
The concurrent findings of facts recorded by the learned
Appellate court as also by the learned trial Court Courts have not
[2023:RJ-JP:20761] (5 of 5) [CSA-94/2017]
been demonstrated by the learned counsel for the plaintiff to be
suffering from any illegality, infirmity, perversity or jurisdictional
error so as to warrant interference of this Court under Section 100
CPC.
Resultantly, the civil second appeal is dismissed being devoid
of any substantial question of law.
(MAHENDAR KUMAR GOYAL),J
Sudha/98
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