Roop Chand Maheshwari S/O Late ... vs Smt. Shakuntala Kumari W/O Shri ...
2023 Latest Caselaw 4674 Raj/2

[2023:RJ-JP:22021]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 581/2019

1.       Roop Chand Maheshwari S/o Late Shri Nandkishore,
         (Since Deceased) through LRs.
1/1.     Ballabh Das Maheshwari, Aged About 58 Years,
1/2.     Jamna Das Maheshwari, Aged About 55 Years,
1/3.     Kishan Das Maheshwari, Aged About 53 Years,
1/4.     Gokul Das Maheshwari, Aged About 49 Years,
         All Sons of Late Shri Roop Chand Maheshwari, All
         Residents of 4, Shubham Enclave, Jamna Lal Bajaj Marg,
         C-Scheme, Jaipur.
                                                    ----Appellants-Defendants
                                     Versus
1.       Smt. Shakuntala Kumari W/o Shri Rav Surendra Pal
         Singh, Through Power of Attorney Holder Shri Ajay Singh
         S/o Shri Shyam Singh, R/o B-103, Meera Marg, Banipark,
         Jaipur (Died During Pendency Of Suit)
1/1.     Rav Surendra Pal Singh S/o Shri Rav Bijendra Pal Singh,
         R/o Plot No.A-1, Sardar Patel Marg, C-Scheme, Jaipur
         (Died During Pendency 0f Suit)
         1/1/1 Smt. Jayendra Kumari W/o Shri Arunpuri, R/o A-3,
         Sardar Patel Marg, C-Scheme, Jaipur
         1/1/2 Smt. Chetana Kumari W/o Shri Ajay Singh, R/o A-
         3, Sardar Patel Marg, C-Scheme, Jaipur
                                                     ----Respondents-Plaintiffs

For Appellant(s) : Shri R.K. Daga with Shri Rahul Singh Chauhan For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment

11/09/2023

This civil second appeal is preferred against the judgement

and decree dated 31.8.2019 passed by learned Additional District

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Judge No.4, Jaipur Metropolitan (for short-`the learned appellate

court') in Civil Regular Appeal No.2/2013 (871/2014) whereby,

while dismissing the appeal preferred by the appellants, the

judgement dated 29.5.2013 passed by the learned Additional Civil

Judge (Jr. Division), No.3, Jaipur Metropolitan (for brevity "the

learned trial Court") partly decreeing the original civil suit

no.214/1998 (77/97) filed by Smt. Shakuntala Kumari, the

predecessor-in-interest of the respondents (for short-`the

plaintiff') for permanent injunction, has been affirmed.

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

permanent injunction against Shri Roop Chand Maheshwari, the

predecessor-in-interest of the appellants (for short-`the

defendant') stating therein that she is owner of a haveli situated

near office of Rajasthan Roadways, C-Scheme, Jaipur and towards

its southern side, there is another property, popularly known as

"tabela" under her ownership which was sold to various persons

vide sale deed dated 24.11.1970. It was submitted that there are

certain houses situated inside this "tabela" including house no.26

of the defendant adjoining to which, there is a room, a part of her

haveli and at the time of selling the "tabela", the common passage

in between the house of the defendant and her room was closed

by raising construction of a pucca wall and the gates from the

rooms under her ownership having opening in the house no.26,

were also closed by a brick wall separating the portion of the

plaintiff and the defendant. It was alleged that the defendant is

raising new construction demolishing his house and in its grab, he

wants to encroach upon her property and wants to open windows,

balconies and ventilation towards her house. It was stated that

[2023:RJ-JP:22021] (3 of 6) [CSA-581/2019]

the defendant has no right to demolish the common wall and the

plaintiff's construction existing thereon. Therefore, the decree as

aforesaid was prayed for.

The defendant in his written statement, denying the

averments made in the plaint, submitted that number of his house

is C-21 and not 26. It was denied that room of the plaintiff is

adjoining to his property. It was submitted that he has raised

construction on the land under his possession without any

encroachment on the plaintiff's property. It was further stated that

the windows and ventilation were already existing in the subject

wall. In the additional plea, it was submitted that in absence of a

prayer for declaration, the suit simplicitor for injunction was not

maintainable. Dismissal of the suit, therefore, was prayed for.

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

court framed two issues including relief. After recording evidence

of the respective parties, the learned trial court partly decreed the

suit vide its judgement dated 29.5.2013 and the civil first appeal

preferred thereagainst by the defendant has also been dismissed

by the learned appellate court vide judgement and decree dated

31.8.2019.

Assailing the impugned judgement and decree, the learned

counsel for the defendant submitted that the learned courts erred

in partly decreeing the suit relying upon testimony of Shri Ajay

Singh (PW1), the power of attorney holder for the plaintiff without

her entering in the witness box. He further submitted that even

otherwise also, the power of attorney did not authorise Shri Ajay

Singh to depose qua the subject property as he has admitted

during his cross examination that he was conferred no title over

[2023:RJ-JP:22021] (4 of 6) [CSA-581/2019]

the subject property through it. Lastly, he submitted that in

absence of a prayer for decree of declaration, the suit simplicitor

for injunction was not maintainable. He, therefore, prays that the

civil second appeal be allowed, the judgement and decree dated

31.8.2019 be quashed and set aside and the suit be dismissed.

Heard. Considered.

While partly decreeing the suit, the learned trial court has

held that the house no.26 was purchased by the defendant from

its erstwhile owner Smt. Prem Khandelwal which, in turn, was sold

to her by the plaintiff vide registered sale deed (Ex.2) wherein, it

was mentioned that the purchaser, i.e., Smt. Prem Khandelwal,

would immediately close the ventilation/windows/projection

existing in the common wall in between the house no.26 and

haveli of the plaintiff and in future, would not raise any such

construction towards plaintiff's property. It was held by the

learned trial court that since, Smt. Prem Khandelwal, the

purchaser under the sale deed (Ex.2), could not have conferred on

the defendant better right than her, the defendant also did not

have any right to open any ventilation or projection towards the

plaintiff's property. It was observed that the defendant has

admitted during his cross examination as DW1 that Smt. Prem

Khandelwal has agreed to close the ventilation, drainage etc.

having opening towards plaintiff's property. Recording a finding

that the plaintiff could not establish that the defendant has

encroached upon a part of her property, the suit was partly

decreed qua non-demolition of the common wall in between the

house no.26 of the defendant and haveli of the plaintiff and not to

raise construction of any window, balcony or ventilation in it. The

[2023:RJ-JP:22021] (5 of 6) [CSA-581/2019]

findings have been upheld by the learned appellate court after re-

appreciating the evidence on record. In view of the aforesaid

findings, in the considered opinion of this Court, the learned

courts did not err in partly decreeing the suit filed by the plaintiff.

Contention of the learned counsel for the defendant that in

absence of the plaintiff appearing in the witness box, the suit

could not have been decreed merely relying upon the testimony of

her power of attorney holder Shri Ajay Singh (PW1), is wholly

misconceived and does not merit acceptance. It is trite law that in

order to establish his/her case, the plaintiff is not required to

appear in the witness box and testimony of the power of attorney

is sufficient for this purpose if his/her deposition is based on his

personal knowledge. Moreover, in the present case, the suit has

partly been decreed relying mainly upon the documentary

evidence available on record and the admission made by the

defendant himself during his cross examination as DW1.

Submission of the learned counsel that in absence of

conferment of title of the subject property under the power of

attorney (Ex.1) upon Shri Ajay Singh, he did not have any

authority to depose, is being taken note of only for rejection. By

no stretch of imagination, conferment of title of the subject

property can be held to be sine-qua-non for an authority to

depose on behalf of the principal.

Further, in absence of any cloud over title of the plaintiff qua

the subject property, i.e., the haveli, her suit for injunction was

maintainable even in absence of a prayer for declaration.

Therefore, contention of the learned counsel for defendant in this

regard is not tenable.

[2023:RJ-JP:22021] (6 of 6) [CSA-581/2019]

Since, the learned counsel for the defendant could not satisfy

this Court that the concurrent findings of facts recorded by the

learned courts suffer from any perversity, infirmity or jurisdictional

error so as to warrant interference by this Court under Section

100 CPC, this Court finds no merit in this second appeal.

Resultantly, the civil second appeal is dismissed.

(MAHENDAR KUMAR GOYAL),J

RAVI SHARMA /177

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