Rajasthan High Court - Jodhpur
Smt. Pari vs Smt. Kamlesh Patiyat ... on 20 January, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
[2025:RJ-JD:3493]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 152/2023
Smt. Pari D/o Ladji, Aged About 58 Years, Resident Of
Shyampura, At Present New Housing Board, Banswara.
----Appellant
Versus
1. Smt. Kamlesh Patiyat W/o Umesh Patiyat, Resident Of
Mohalla, New Housing Board, Pratap Circle Ke Ke Aage,
Banswara (Rajasthan)
2. Chatra S/o Ladji, Aged About 58 Years, Resident Of
Shyampura, At Present New Housing Board, Banswara.
3. Prabhu S/o Ladji, Aged About 45 Years, Resident Of
Shyampura, At Present New Housing Board, Banswara.
4. Smt. Mogi W/o Ladji, Aged About 85 Years, Resident Of
Shyampura, At Present New Housing Board, Banswara.
5. Vagji S/o Ladji, Aged About 62 Years, Resident Of
Shyampura, At Present New Housing Board, Banswara.
6. Smt. Sharda W/o Chatra, Aged About 38 Years, Resident
Of Shyampura, At Present New Housing Board, Banswara.
7. Smt. Roopa W/o Prabhu, Aged About 40 Years, Resident
Of Shyampura, At Present New Housing Board, Banswara.
8. Ramesh S/o Chatra, Aged About 23 Years, Resident Of
Shyampura, At Present New Housing Board, Banswara.
9. Naku S/o Bhur Ji, Aged About 25 Years, Resident Of
Shyampura, At Present New Housing Board, Banswara.
10. Mukesh Joshi S/o Jagdish Joshi, R/o Laxmivihar, New
Housing Board, Banswara.
11. Smt. Krishna @ Anita W/o Mukesh Joshi, Aged About 35
Years, R/o Laxmi Bihar, New Housing Board, Banswara.
----Respondents
For Appellant(s) : Mr. Manohar Singh Rathore
For Respondent(s) :
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
[2025:RJ-JD:3493] (2 of 3) [CSA-152/2023]
20/01/2025
1. The plaintiff - Smt. Kamlesh Patiyat filed a suit stating
therein that she had purchased a portion of Khasra No.381/40
through registered sale deed for residential purpose on
27.02.1999. On 31.03.1999, she got order of conversion of plot as
for residential purpose. She prayed for injunction against the
respondents not to interfere with her peaceful possession on the
purchased land.
2. The suit was decreed by judgment and decree dated
02.08.2022 passed in Civil Original Suit No.18/2017. The decree
was challenged in Civil First Appeal No.07/2022, which was
dismissed by judgment and decree dated 03.05.2023.
3. Learned counsel for the appellant submits that the appellant
was defendant in the suit and was owner of the adjoining land.
The plaintiff responded by filing the suit attempted to encroach
upon the land of the respondents. The suit was cleverly drafted
without disclosing the identity of the purchased land with definite
measurement though there is mention of measurement of the suit
property.
4. The trial court as well as the first appellate court did not
consider that a report from the Commissioner should have been
called for, to adjudicate the actual area of possession of the
plaintiff or the defendant. From the record it is evident that none
of the parties prayed for commissioner's report. Evidently, the
impugned order would confine to the area purchased by the
plaintiff.
5. In the memo of appeal following questions have been raised
as substantial questions of law:-
[2025:RJ-JD:3493] (3 of 3) [CSA-152/2023]
"1. Whether in the facts and circumstances of the
case, bot the courts below have committed serious
error of law in not considering the question of
possession and not demand Moka Commissioner
Report of dispute land and premises?"
2. Whether in the facts and circumstances of the case,
both the courts below have committed serious error of
law in not considering the boundary line of disputed
and not demand measurement report of dispute land?
3. Whether in the facts and circumstances of the case,
both the courts below have committed serious error of
law not consider the category of land, in fact the
petitioner's land is agriculture land, dispute arose of
Tarmim and old possession of agriculture land, this
issued decide only of Revenue Court, hence said
matter is barred by jurisdiction of the Civil Court?."
6. Question Nos.1 and 2 are not substantial questions of law,
rather, are mixed questions of law and fact, which cannot be gone
into in second appeal. So far question No.3 is concerned, before
filing of the suit, the nature of the land was converted into a
residential land. It did not remain an agricultural land on the date
of suit. Hence, the provisions of Rajasthan Tenancy Act would not
apply.
7. Accordingly, this Civil Second Appeal stands dismissed as
devoid of any merit.
(BIRENDRA KUMAR),J
27-nitin/-
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