Islamuddin vs Lrs Of Late Shokat Ali ...
2024 Latest Caselaw 1708 Raj

Citation : 2024 Latest Caselaw 1708 Raj
Judgement Date : 21 February, 2024

Rajasthan High Court - Jodhpur

Islamuddin vs Lrs Of Late Shokat Ali ... on 21 February, 2024

Author: Birendra Kumar

Bench: Birendra Kumar

[2024:RJ-JD:8880]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Second Appeal No. 117/2023

1.       Islamuddin S/o Kasam, Aged About 67 Years, Resident Of
         Mohalla Khai Loharan, Nagaur, Tehsil And District Nagaur.
2.       Abdul Salam S/o Kasam, Aged About 65 Years, Resident
         Of Mohalla Khai Loharan, Nagaur, Tehsil And District
         Nagaur.
3.       Jameel Ahmed S/o Kasam, Aged About 50 Years, Resident
         Of Mohalla Khai Loharan, Nagaur, Tehsil And District
         Nagaur.
4.       Mohammad Farooq S/o Kasam, Aged About 45 Years,
         Resident Of Mohalla Khai Loharan, Nagaur, Tehsil And
         District Nagaur.
5.       Mohammad Akhtar S/o Kasam, Aged About 40 Years,
         Resident Of Mohalla Khai Loharan, Nagaur, Tehsil And
         District Nagaur.
                                                                 ----Appellants
                                    Versus
1.       Lrs Of Late Shokat Ali, S/o Noor Mohammad Through His
         Lrs-
2.       Munsaf Ali S/o Late Shokat Ali, Resident Of Sipahiyo Ka
         Mohalla, Nagaur, Lamba Kalla Wale, Resident Of Basani.
3.       Manohar S/o Late Shokat Ali, Resident Of Sipahiyo Ka
         Mohalla, Nagaur, Lamba Kalla Wale, Resident Of Basani.
4.       Naeem Ali S/o Late Shokat Ali, Resident Of Sipahiyo Ka
         Mohalla, Nagaur, Lamba Kalla Wale, Resident Of Basani.
5.       Jameela D/o Late Shokat Ali, Resident Of Sipahiyo Ka
         Mohalla, Nagaur, Lamba Kalla Wale, Resident Of Basani.
6.       Shamim D/o Late Shokat Ali, Resident Of Sipahiyo Ka
         Mohalla, Nagaur, Lamba Kalla Wale, Resident Of Basani.
7.       Raeesa D/o Late Shokat Ali, Resident Of Sipahiyo Ka
         Mohalla, Nagaur, Lamba Kalla Wale, Resident Of Basani,
         Nagaur.
8.       Jetun Bano W/o Late Shokat Ali, Resident Of Sipahiyo Ka
         Mohalla, Nagaur, Lamba Kalla Wale, Resident Of Basani,
         Nagaur.
9.       Abdul Rahman S/o Haji Gulam Mustfa, Resident Of
         Basani, Tehsil And District Nagaur. (Deceased)

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10.      Mohammad Ayub S/o Haji Gulam Mustfa, Resident Of
         Basani, Tehsil And District Nagaur. (Deceased)
11.      Peer Ibrahim Shah Ki Dargah, Madrsa And Masjid Ke
         Muntjiman, Resident Of Sipahiyon Ka Mohalla, Nagaur
         Tehsil And District Nagaur.
12.      Sahabudin S/o Samman Khan, Resident Of Sipahiyo Ka
         Mohalla, Nagaur, Tehsil And District Nagaur.
13.      Shubhan Khan S/o Ladu Khan, Resident Of Sipahiyo Ka
         Mohalla, Nagaur, Tehsil And District Nagaur.
                                                                 ----Respondents


For Appellant(s)          :     Mr. Ajay Kumar Vyas.
For Respondent(s)         :


            HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

21/02/2024

1. The plaintiffs-respondents filed a suit for declaration and

permanent injunction. The prayer of the plaintiffs was that the

defendants-appellants had encroached over the public rasta

therefore, by issuance of injunction, they be directed to remove

the encroachment from public land. The Original Civil Suit No.

53/2011 was decreed by the learned trial Judge by judgment and

decree dated 04.10.2013. The said judgment and decree was

challenged before the first appellate court in Civil Regular Appeal

No. 15/2013 and the appeal was dismissed on merit. There is

concurrent finding of fact by both the Courts below on the issue

no. 2 - whether, the suit property is a public rasta for use of the

public in general and plaintiffs as well. Issue no. 3 - whether the

defendants had encroached upon the suit land in the months of

October and November, 1997, issue no. 4 - whether the

defendants were required to be removed from the encroached

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land and issue no. 5 whether the defendants had acquired title by

prescription over the suit land.

2. The appellants have raised following questions as substantial

questions of law to be decided by this third court:-

"(a) Whether, the impugned judgments & decrees based on no legal foundation & evidence, moreover non-reading and misreading of evidence and the learned Courts below have misdirected themselves by basing their judgments & decrees on unwarranted assumption while passing the impugned judgments & decrees and impugned judgments & decrees are perverse and against the law?

                (b)        Whether              the        admission            and
                concessions         available         on    record       are     not

considered by the learned Courts below while passing impugned judgments & decrees?

(c) Whether, the learned Courts below have based its judgments & decrees on irrelevant assumptions, moreover, on conjectures and surmises?

(d) Whether, the impugned judgment & decree dated 04.10.2023, passed by the learned Trial Court itself is illegal and ab-initio null & void as same is passed in favour of the dead persons?

(e) Whether, the learned Courts below have committed serious error of law and facts while deciding the issue Nos. 1 to 8 in favour of the plaintiffs, specifically when the plaintiffs have completely failed to establish & prove this fact that the disputed land is part of public gali?

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(f) Whether, the learned Courts below have committed serious error of law and facts while overlooking this important aspect of the matter that defendants are in possession over the disputed land in question since last many decades and possession of the defendants over the disputed land in question was never disturbed by any person and even by the Municipal Board and Municipal Board had also given construction permission to the defendants for raising construction over the disputed land and this fact itself is clear from perusal of the Exhibit-A/5, A/6 & A/7.

(g) Whether, the learned Courts below have committed serious error of law and facts while overlooking this important aspect of the matter that defendants are in possession over the disputed land in question since year 1978 and as such no cause of action arose in the year 1997 to prefer & maintain the suit as alleged by the plaintiffs.

(h) Whether, the suit itself was not maintainable on the ground of non-joinder of necessary party i.e. Municipal Board, Nagaur?

(i) Whether, the learned Courts below have committed serious error of law as well facts while overlooking this settled position of law that without seeking any relief of declaration in the representative capacity, the suit for mandatory & permanent injunction itself was not maintainable?

(j) Whether, the learned Courts below have committed serious error of law as well facts while overlooking this important aspect of the matter that looking to the undisputed possession over the disputed land since last

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many decades and adverse possession, the defendants became owner of the disputed land?

(k) Other substantial question of law, which would arise at the time of hearing, would be urged with the permission of the Hon'ble Court."

3. Evidently, none of the questions aforesaid are substantial

questions of law rather, adjudication of the questions would

require re-appreciation of evidence, which is not permissible at

this stage.

4. Since the suit was of representative nature, death of some of

the plaintiffs and non substitution of the legal heirs would not

make the judgment and decree void-ab initio for being passed

against a dead person vide question no. (d) aforesaid.

Moreover, the aforesaid issue was not raised before the first