Madhu Lal vs Sita (2023:Rj-Jd:31197)
2023 Latest Caselaw 7579 Raj

[2023:RJ-JD:31197]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 154/2023

Madhu Lal S/o Shri Shankar Lal, Aged About 55 Years, By Caste Nai (Sen), Resident Of Village And Post Madara, Tehsil Railmagra, District Rajsamand Rajasthan.

----Appellant Versus Sita W/o W Ji Sen, Aged About 42 Years, By Caste Sen, Resident Of Village And Post Agariya, Tehsil Aamet, District Rajsamand Rajasthan.

                                                                 ----Respondent


For Appellant(s)            :    Mr. Satya Prakash Sharma
For Respondent(s)           :    None present



              HON'BLE MS. JUSTICE REKHA BORANA

                                     Judgment

21/09/2023

1. The present second appeal has been preferred against the

judgment and decree dated 21.08.2023 passed by the District

Judge, Rajsamand in Civil Appeal No.13/2023 (CIS No.13/2017)

whereby the judgment and decree dated 15.11.2022 passed by

the Civil Judge, Railmagra, Rajsamand in Civil Suit No.44/2015

(CIS No.44/2015) has been affirmed. Vide judgment and decree

dated 15.11.2022, learned trial Court decreed the suit for

possession and permanent injunction as preferred by the plaintiff.

2. Learned counsel for the appellant submitted that the Courts

below erred in relying upon the Will which could not have been

termed to be proved in terms of law. Learned counsel submitted

that the Courts below erroneously held the Will to be registered

whereas the same was not. He further submitted that it is proved

[2023:RJ-JD:31197] (2 of 4) [CSA-154/2023]

on record that the defendant was in possession of the property

being the adopted son of Nathu Singh/Deo Bai and the Courts

below ignored the evidence led by the defendant on this aspect.

3. Heard learned counsel for the appellant and perused the

material available on record as well as the documents supplied by

the counsel.

4. So far as the ground raised by the counsel for the appellant

regarding Will being not registered or not been proved in terms of

law, is concerned, the present was not a suit for declaration of title

or ownership, the suit was for possession and injunction preferred

by the plaintiff with an averment that the defendant had forcibly

taken over possession of the property and therefore, he may be

directed to handover the possession back to the plaintiff.

5. In the opinion of this Court, the plaintiff was not claiming any

relief qua title/ownership and even if it is held that the Will was

not proved on record, the same would be of no relevance so far as

the possession is concerned. Regarding the issue of possession, it

is concurrent finding of both the Courts below that the defendant

himself, in his cross-examination, specifically admitted that he

took over the possession of the property and when he did so, the

criminal proceedings were initiated by the plaintiff against him.

6. This Court also examined the evidence as led by the

defendant Madhu Lal (DW1). In his cross-examination, he

specifically admitted as under :

" ;g dguk lgh gS fd eq>s lekt okyks us edku lkSik mlls igys eSa vius gh edku esa jgrk FkkA ;g dguk lgh gS fd eSus o"kZ 2014 esa dCtk fd;k rc lhrk us Fkkus esa fjiksVZ nh FkhA...........

[2023:RJ-JD:31197] (3 of 4) [CSA-154/2023]

........... ;g dguk lgh gS fd esjs }kjk dCtk fd;k x;k rc lhrk }kjk Fkkus esa fjiksVZ nh xbZ Fkh esjs }kjk ugh nh xbZ] D;ksafd rc eSa ml edku esa jg jgk FkkA ;g eq>s /;ku ugh gS fd nsm ckbZ us lhrk ds i{k esa dksbZ jftLVMZ olh;r djokbZ gksA..........."

A perusal of above the statements makes it clear that the

defendant himself admitted that he took over possession of the

property in the year 2014 and at that point of time also, criminal

proceedings were initiated against him. The present suit has been

filed in the year 2015 which proves that the proceedings have

been undertaken after the property in question having forcibly

been taken over by the defendant.

7. Further, burden to prove issue No.3 pertaining to the

possession of the defendant on the land in dispute was on the

defendant which he miserably failed to prove. Both the Courts

below reached to the finding that in view of the clear contradictory

statements of the defendant himself, it cannot be concluded that

he was in peaceful possession of the property since last 12 years.

8. In view of the above observations and in view of the specific

findings of both the Courts below which are totally factual in

nature and concurrent, this Court does not find any reason to

interfere with the same.

9. No substantial question of law arise in the present appeal

and the same is therefore, dismissed.

The stay petition and the pending application, if any, also

stand dismissed.

[2023:RJ-JD:31197] (4 of 4) [CSA-154/2023]

10. At this stage, learned counsel for the appellant submitted

that in Execution Proceedings (No.5/23) initiated by the plaintiff,

the possession from the defendant has been taken over and the

property in question has been attached. He submitted that

belongings of the defendant are in the house in question and the

same deserves to be released to him as the same comprise of

materials of daily need of the family.

In view of the submission made, it is hereby directed that on

an application being preferred by the defendant before the

Executing Court for release of his belongings in the house in

question, appropriate orders be passed with immediate effect and

the belongings, if any, in the house in question be handed over to

him in terms of law.

(REKHA BORANA),J 103-Vij/-

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