Radma Ram And Ors vs Prabhu (2023:Rj-Jp:21656)
2023 Latest Caselaw 4688 Raj/2

[2023:RJ-JP:21656]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 396/2017

1.        Radma Ram S/o Remta, age 57 years,                               R/o Village
          Banewda Tehsil Nasirabad Distt. Ajmer
2.        Badri S/o Radmaram, age 37 years, R/o Village Banewda
          Tehsil Nasirabad Distt. Ajmer
3.        Bhagchand S/o Radmaram, age 34 years, R/o Village
          Banewda Tehsil Nasirabad Distt. Ajmer
4.        Gopal S/o Radmaram, age 30 years, R/o Village Banewda
          Tehsil Nasirabad Distt. Ajmer
5.        Chotu S/o Radmaram, age 27 years, R/o Village Banewda
          Tehsil Nasirabad Distt. Ajmer
6.        Prahlad S/o Radmaram, age 24 years, R/o Village
          Banewda Tehsil Nasirabad Distt. Ajmer
                                                     ----Appellants/Defendants
                                      Versus
Prabhu S/o Ruda, age 62 years, R/o Village Banewda Tehsil
Nasirabad Distt. Ajmer
                                                         ----Plaintiff/Respondent

For Appellant(s) : Mr. Vijay Choudhary with Mr. Ram Singh Gurjar For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment / Order

11/09/2023

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

by 202 days, is accompanied with an application under Section 5

of the Limitation Act, 1963 (for brevity "the Act of 1963") seeking

condonation of delay.

Reiterating the averments made in the application, learned

counsel for the applicants submits that they, being poor

[2023:RJ-JP:21656] (2 of 4) [CSA-396/2017]

agriculturists, could not file this appeal in time. He submits that

since, the delay in preferring the appeal is bonafide, it needs to be

condoned.

Heard. Considered.

The explanation offered in the application filed under Section

5 of the Act of 1963 seeking condonation of delay of 202 days is

far from satisfactory. Merely because the applicants are poor

agriculturists, it is no ground to condone the inordinate delay.

In view thereof, the application does not deserve acceptance.

However, in the interest of justice, the civil second appeal

has also been heard on its merit which has been preferred against

the judgment and decree dated 08.08.2016 passed by the learned

Additional District Judge No.4, Ajmer (Rajasthan) (for short "the

learned appellate Court") in Civil Appeal No.34/2015 (61/2015)

whereby, while dismissing the appeal preferred by the

appellants/defendants (hereinafter referred to as "the

defendants"), the judgment dated 13.04.2015 passed by the Civil

Judge, Nasirabad, District Ajmer (for brevity "the learned trial

Court") decreeing the Civil Suit No.26/2013 filed by the

respondent/plaintiff (for short "the plaintiff") for mandatory and

permanent injunction, has been upheld.

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

mandatory and permanent injunction stating therein that he was

under ownership and possession of a piece of land measuring 106

feet x 70 feet under a Patta issued by the Gram Panchayat.

Alleging that the defendants were trying to encroach upon a part

of it, the decree as aforesaid was prayed for.

[2023:RJ-JP:21656] (3 of 4) [CSA-396/2017]

The defendants in their joint written statement, denying the

averments made in the plaint, submitted that the area of the

subject property was 93 feet x 27 feet and not 106 feet x 70 feet

as claimed. It was averred that rest of land was under their

ownership and possession. 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 respective parties, the learned trial Court decreed the suit

vide its judgment and decree dated 13.04.2015 and the civil first

appeal preferred thereagainst by the defendants has also been

dismissed by the learned appellate Court vide judgment and

decree dated 08.08.2016.

Assailing the impugned judgment and decree dated

08.08.2016, the only contention advanced by the learned counsel

for the defendants is that the learned Courts erred in failing to

appreciate that the actual area of the subject piece of land was 93

feet x 27 feet and not 106 feet x 70 feet as claimed. He,

therefore, prays that the civil second appeal be allowed, the

judgment and decree dated 08.08.2016 be quashed and set aside

and the civil suit be dismissed.

Heard. Considered.

Indisputably, the Gram Panchayat, the competent authority,

has issued the Patta (Exhibit-1)of the subject land in favour of the

plaintiff measuring 106 feet x 70 feet. Both the Courts have found

the plaintiff to be in possession of the area allotted to him by the

Gram Panchayat on the basis of evidence on record.

[2023:RJ-JP:21656] (4 of 4) [CSA-396/2017]

The documents relied upon by the defendants in support of

their claim that they were under ownership and possession of the

rest of the land, were disbelieved as the same did not bear their

names or the land to which the same pertained.

Since, the concurrent findings of facts recorded by the

learned Courts have not been shown to be suffering from any

illegality, infirmity, perversity or jurisdictional error so as to

warrant interference of this Court under Section 100 CPC, this civil

second appeal is devoid of merit.

Resultantly, the application under Section 5 of the Act of

1963 as also the civil second appeal are dismissed being devoid of

merit.

(MAHENDAR KUMAR GOYAL),J

Manish/134

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