Vajeng vs Nathu Lal (2025:Rj-Jd:1393)
2025 Latest Caselaw 3995 Raj

Citation : 2025 Latest Caselaw 3995 Raj
Judgement Date : 9 January, 2025

Rajasthan High Court - Jodhpur

Vajeng vs Nathu Lal (2025:Rj-Jd:1393) on 9 January, 2025

Author: Birendra Kumar

Bench: Birendra Kumar

[2025:RJ-JD:1393]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR



                S.B. Civil Second Appeal No. 149/2023




Vajeng S/o Shri Hengji, Aged About 78 Years, Resident Of
Ratanpura (Aanjana), Tehsil Garhi, District Banswara (Raj.)


                                                                   ----Appellant
                                    Versus


Nathu Lal S/o Shri Lal Ji, Resident Of Ratanpura (Aanjana),
Tehsil Garhi, District Banswara (Rajasthan).
                                                                 ----Respondent


For Appellant(s)           :     Mr. Narendra Thanvi
For Respondent(s)          :     Mr. Devendra Sanwalot



            HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

09/01/2025

1. Heard the parties.

2. The sole plaintiff-respondent brought Civil Original Suit

No.21/2014 against the defendant-appellant for permanent

injunction seeking direction to the appellant to not to do any

illegal construction in the southern wall leading to offending the

privacy of the house of the plaintiff.

It was further sought that the defendant be asked to close

the ventilator, net etc. put in the said wall. The plaintiff further

prayed that the Court may grant other reliefs, which is deemed fit

and appropriate.

[2025:RJ-JD:1393] (2 of 5) [CSA-149/2023]

3. The trial Court decreed the suit vide judgment and decree

dated 20.10.2020 and by the decree directed closure of the

window in the said wall as well. The decree was challenged in Civil

Appeal No.06/2020 and the appeal was dismissed by judgment

and decree dated 21.04.2023.

4. Learned counsel for the appellant submits that the trial Court

granted a relief which was not prayed for by the appellant i.e.

closure of the window and this infirmity was overlooked by the

First Appellate Court. Therefore, the Courts below have committed

error of law.

The law is well settled that a quite independent and different

relief cannot be granted unless sought for, however, ancillary relief

to do complete justice may be granted by the trial Judge. The

prayer was for closure of the ventilator etc. on the ground that it

was violating the privacy of the plaintiff and if the trial Court

granted decree of closure of the window as well, it cannot be said

that the trial Court granted what was not prayed for in view of the

prayer of relief stated above.

5. Learned counsel for the appellant next contends that there

was contradiction in the pleading and evidence of the plaintiff

inasmuch as the plaintiff did not state in the pleading that there

was window in the southern wall, which should also be closed nor

stated that window was created during pendency of the suit. This

contradiction was neither properly appreciated by the trial Judge

nor by the First Appellate Court. The First Appellate Court should

have chalked out point for consideration in the appeal as required

under Order 41 Rule 31 C.P.C. or at least it should have discussed

[2025:RJ-JD:1393] (3 of 5) [CSA-149/2023]

independently the case and evidence of the parties issue-wise,

which has not been done in this case.

Perusal of the Appellate Court's judgment reveals that

Appellate Court noticed that the appellant had led no evidence,

oral or documentary, rather plaintiff had laid oral and documentary

evidences, which were acceptable. The Appellate Court discussed

the matter issue-wise, which issues were framed by the trial Judge

and independently considered the evidence on record for its own

conclusion.

6. Learned counsel for the appellant contends that the appellant

had raised the issue that there was no prayer for closure of

window, which was granted by the trial Judge, before the

appellate Court as well but the appellate Court did not discuss the

said issue.

7. This Court has already clarified above that no separate

prayer was required as other reliefs related to the closure of

ventilator etc., which were violating the privacy of the plaintiff,

was claimed in the suit, ancillary relief of closure of window was

granted that was also consistent with protecting the privacy of the

plaintiff, otherwise no purpose would have been served if the

privacy would have remained open.

8. Following questions have been raised as substantial

questions of law in this appeal :-

"a. Whether both the learned Courts below were justified in decreeing the suit filed by the respondent/plaintiff when no documentary evidence has been produced by him on record to prove his case?

b. Whether the learned First Appellate Court has

[2025:RJ-JD:1393] (4 of 5) [CSA-149/2023]

committed serious error of law in not properly deciding the appeal filed by the appellant against the judgment & decree dated 20.10.2020 passed by learned trial court?

c. Whether the findings of learned Courts below with regard to issue no. 1 are sustainable when respondent failed to plead & prove his specific case in the plaint by leading cogent evidence on record?

d. Whether the learned First Appellate Court has fallen into grave error in not framing the points of determination as mandated under Order 41 Rule 31 C.P.C. while deciding the appeal of appellant?

e. Whether both the learned courts below have proceeded on mere assumptions and presumptions and have ignored the serious contradictions apparent from perusal of plaint averments, map annexed with the plaint and the evidence affidavit of respondent?

f. Whether the learned courts below were justified in granting the relief of mandatory injunction to the respondent and directed the appellant to remove ventilator and window exists over the wall of house of appellant when there was no such issue framed in the matter and issue no. 1 was pertaining to said ventilator only?"

9. The law is well settled that the plaintiff has to succeed on his

own strength even if the defendant does not appear to resist the

claim of the plaintiff, but once the defendant has appeared and

contested the suit, the Court was required to see the

preponderance of probability in whose favour lies. The defendants

had laid no evidence, hence, plaintiff evidence was accepted by

the Courts below.

10. As discussed above, the question raised above are not

substantial questions of law involved in this appeal, rather are

[2025:RJ-JD:1393] (5 of 5) [CSA-149/2023]

mixed questions of law and fact and some of the questions have

already been answered.