Rajasthan High Court - Jodhpur
Mohammed Sakir Chhipa vs Smt. Rafika Bano (2025:Rj-Jd:8050) on 10 February, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
[2025:RJ-JD:8050]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 126/2023
Mohammed Sakir Chhipa S/o Shri Mohammed Yusuf, Aged About
54 Years, R/o Heera Bhawan, Udaimandir, Behind Public Park,
Jodhpur, Rajasthan.
----Appellant
Versus
1. Smt. Rafika Bano W/o Shri Noordeen Khan, R/o Hathion
Ki Baori, Near Railway Crossing, District, Jodhpur,
Rajasthan.
2. Mukesh Kumar Salecha S/o Shri Ghewar Chand Ji
Salecha, R/o Heera Bhawan, Udaimandir Behind Public
Park, Jodhpur, Rajasthan.
----Respondents
For Appellant(s) : Mr. Manish Patel.
For Respondent(s) : Mr. Jitendra Chopra.
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
10/02/2025
1. Heard the parties.
2. By the judgment and decree dated 29.3.2023 passed by
Learned Additional District Judge, Jodhpur in Civil First Appeal No.
63/2015 (CIS No. 127/2014), the Appellate Court has reversed
the findings of the trial Court's judgment.
3. The plaintiff/appellant herein had brought the Original Civil
Suit No.356/2011 (155/2008) for a decree of injunction against
the respondents to not to make any construction in the 10 feet
lane or if any construction is there, to remove the encroachment.
The suit was decreed by the learned trial court, however, the first
appellate court has reversed the finding of the trial court and held
[2025:RJ-JD:8050] (2 of 3) [CSA-126/2023]
that construction on 5 feet out of 10 feet of the lane was already
there at the time of purchase of the suit property by the plaintiff.
However, the appellate court directed that the defendants/
respondents shall not cover the construction anyway to avoid
inconvenience to the plaintiff to get light and air and the
defendants shall maintain the upper side of construction open to
sky.
4. While reversing the finding of the trial court, the appellate
court noticed that the Commissioner report vide Ex.5 reveals that
structure on the 5 feet out of 10 feet of the lane was already there
at the time of purchase of house of Rafika Bano, however, the roof
was not covered. Hence, direction was made not to cover the roof.
The Court further found that the said construction was on the
personal property and not on any public land.
5. The following questions have been raised as substantial
question of law for decision in the second appeal:-
"(i) Whether the Ld. First Appellate Court has rightly
allowed the First Appeal of the defendant /
Respondent No.1 by reversing the well-reasoned
finding of Ld. Trial Court ?
(ii) Whether the Ld. First Appellate Court has rightly
given absolute right to Defendant for use and
occupation of the disputed way ?
(iii) Whether Ld. First Appellate Court has rightly
modified or alter the finding of the Ld. Trial Court on
issue no. 1 & 2 ?
(iv) Whether the Ld. First Appellate Court has
jurisdiction to hear and decide the first appeal
without complying with the mandatory provisions of
Order 41 Rule 31 of the Civil Procedure Code by not
framing the points for determination ?
(v) Whether the findings arrived at by the Ld. First
Appellate Court on the question of construction on
[2025:RJ-JD:8050] (3 of 3) [CSA-126/2023]
the disputed way is vitiated on the account of
pleading and evidence adduced by the plaintiff ?
(vi) Whether the Ld. First Appellate Court was
justified in reversing the findings of Ld. Trial court
about the use and occupation of the disputed way ?
(vii) Whether the finding of the Ld. First Appellate
Court stands vitiated on the ground of misreading of
the evidence ?
(viii) Whether judgment and decree passed by the
Ld. First Appellate court are perverse on the count of
non-consideration of the vital aspect of the case as
submitted above ?"
6. Question No. (iv) is not applicable here as non framing of the
points for consideration has not prejudicially affected the case of
the appellant for the reason that the Appellate Court has decided
both the issues decided by the trial court independently on
consideration of oral and documentary evidence. Likewise, during
argument, no perversity was pointed out in the appellate court's
judgment.
7. This Court cannot enter into re-appreciation of evidence,
even to set aside any illegal finding, therefore, this second appeal
stands dismissed as devoid of any merit.
(BIRENDRA KUMAR),J
11-suraj/-
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