Smt. Chhoti Devi vs Lrs Of Dhanna (2025:Rj-Jd:901)
2025 Latest Caselaw 3834 Raj

Citation : 2025 Latest Caselaw 3834 Raj
Judgement Date : 7 January, 2025

Rajasthan High Court - Jodhpur

Smt. Chhoti Devi vs Lrs Of Dhanna (2025:Rj-Jd:901) on 7 January, 2025

Author: Birendra Kumar

Bench: Birendra Kumar

[2025:RJ-JD:901]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                   S.B. Civil Second Appeal No. 115/2024

Smt. Chhoti Devi W/o Shri Arjun Lal Soni, Aged About 64 Years,
R/o B-279, Sanjay Colony, Mahesh Marg, Nehru Road, Bhilwara
                                                                       ----Appellant
                                       Versus
1.       Dhanna S/o Shri Bena Ji Bhambi, R/o Labour Colony,
         Pratap        Nagar,        Bhilwara           Through        His    Legal
         Representatives-
1/1.     Manohar Lal S/o Late Shri Dhanna Bhambi, R/o Labour
         Colony, Pratap Nagar, Bhilwara
1/2      Niranjan Lal S/o Late Shri Dhanna Bhambi, R/o Labour
         Colony, Pratap Nagar, Bhilwara
1/3      Jaswant S/o Late Shri Dhanna Bhambi, R/o Labour
         Colony, Pratap Nagar, Bhilwara
1/4      Chetan S/o Late Shri Dhanna Bhambi, R/o Labour Colony,
         Pratap Nagar, Bhilwara
1/5.     Smt Jayanti Devi W/o Shri Ram Chandra Paliwal D/o Late
         Shri Dhanna Bhambi, R/o Behind Bus Stand, Narna Via
         Phulera, Dist. Jaipur
2.       Manohar Lal S/o Late Shri Dhanna Bhambi, R/o Labour
         Colony, Pratap Nagar, Bhilwara
3.       Niranjan Lal S/o Late Shri Dhanna Bhambi, R/o Labour
         Colony, Pratap Nagar, Bhilwara
4.       Jaswant S/o Late Shri Dhanna Bhambi, R/o Labour
         Colony, Pratap Nagar, Bhilwara
                                                                    ----Respondents


For Appellant(s)             :     Mr. Narednra Thanvi
For Respondent(s)            :     Mr. Aidan Choudhary


            HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

07/01/2025

1. The plaintiff-appellant-brought Civil Original Suit No.02/2009

for a decree of injunction against the respondents.

[2025:RJ-JD:901] (2 of 4) [CSA-115/2024]

2. The suit was on the ground that the plaintiff had entered into

an agreement to purchase the suit property from defendant No.1-

Dhanna vide agreement dated 24.02.1990. Part consideration

money of Rs. 15,000/- was paid to the vendor and the vendor

transferred the possession to the plaintiff-appellant. The learned

trial Judge decreed the suit vide judgment and decree dated

11.07.2022. The Decree was challenged in Civil Appeal

No.33/2022 before the learned District Judge, Bhilwara which was

allowed by judgment and decree dated 28.02.2024 and the

judgment of the learned trial Judge was set aside.

3. While reversing the findings of the trial Judge, the appellate

Court noticed that the plaintiff-appellant had not produced any

evidence of title. The law is well settled that an agreement to sale

does not create any title to the property under transfer. Moreover,

such right is a weak right as alternative remedy is also there

provided under the law.

4. Learned counsel for the appellant contend that the learned

Appellate Court did not frame points for consideration as required

under Order XLI Rule 31 CPC, as such the impugned judgment of

the Appellate Court is in violation of the settled law. The learned

Appellate Court wrongly disbelieved the exhibited document of

agreement to sale which was basis of the case of the plaintiff-

appellant and no contrary evidence was there to controvert the

claim of the plaintiff.

5. Learned counsel further submitted that while reversing the

finding, the First Appellate Court did not consider the evidence on

possession brought on the record which was in favour of the

plaintiff-appellant.

[2025:RJ-JD:901] (3 of 4) [CSA-115/2024]

6. It is a fact that point of consideration is not mentioned in the

impugned judgment, however, re-consideration of the issues

framed by the trial judge is there by the Appellate Court. The

Appellate Court categorically considered the issue Nos.1 and 2

framed by the trial court and noticed that the suit for permanent

injunction was brought without claim of title rather claim was

based on an agreement to sale and the agreement to sale does

not create any title on the property, therefore, finding of the First

Appellate Court cannot be taken as erroneous because law is well

settled that a decree for permanent injunction cannot be passed

only on the basis of possession. A long possession may give rise to

claim title by adverse possession which is not a case herein

pleaded or proved, rather claim of the plaintiff is based on

possession in pursuance of an agreement to sale between the

parties.

7. The appellant has raised the following as substantial

questions of law:-

a. Whether the learned First Appellate Court was justified in reversing a well-reasoned judgment of learned trial court?

b. Whether the learned First Appellate Court has erred in reversing the findings of issue Nos.1 & 2?

c. Whether the findings of learned First Appellate Court with regard to issue no.1 are sustainable when respondents failed to plead and prove their specific defence so pleaded by them?

d. Whether the learned First Appellate Court has fallen into grave error in reversing the findings of learned trial court with regard to issue no.1 and decided the same in favour of respondents on the ground that document Ex.-1 was unregistered and unstamped?

e. Whether the learned First Appellate Court was justified in holding the sale agreement Ex.-1 to be inadmissible in evidence and made it the basis for rejecting the suit of the appellant?

f. Whether the learned First Appellate Court was justified in reversing the findings of issue no.2 and 3 when same has been done by ignoring the voluminous evidence available on record?

[2025:RJ-JD:901] (4 of 4) [CSA-115/2024]

g. Whether the learned First Appellate Court was justified in holding that appellant failed to prove her possession over the suit property since the agreement Ex.-1 is inadmissible in evidence when more particularly the other evidence in that regard was also available on record?

h. Whether the learned First Appellate Court has committed grave error in dismissing the suit of the appellant which was simplicitor injunction suit and question of title was not relevant in such suit?

i. Whether the learned First Appellate Court was justified in deciding the question of title in a suit for simplictor injunction?

j. Whether the impugned judgment and decree dated 28.02.2024 stands vititated as same has been passed without framing the points of determination as mandated under Order 41 Rule 31 CPC?

k. Whether the learned First Appellate Court has committed serious error in misconstruing the legal position applicable to the present case and misappreciating the evidence led by the appellant on the record?"

8. None of the questions above are substantial questions of law

rather are mixed questions of law and fact. Moreover, non-framing

of points for consideration as per Order XLI Rule 31 CPC is not

always fatal if the Appellate Court has considered the dispute

between the parties correctly and has applied the law accordingly.

In the case on hand, the Appellate Court has re-considered the

issues read before the learned trial Judge and there is no material

on the record to suggest that any specific point for consideration

was raised by any of the parties before the Appellate Court which

was not considered. Therefore, this appeal does not contain any

substantial questions of law.

9. Accordingly, this Civil Second Appeal is dismissed.