Rajasthan High Court - Jodhpur
Deepak Kumar vs Khemaram (2025:Rj-Jd:14593) on 19 March, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
[2025:RJ-JD:14593]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 52/2018
Deepak Kumar Sharma S/o Late Shri Gokul Chand Sharma, aged
about 48 years, R/o Plot No. 257, New Loco Colony, Near Gate,
Subhash Chowk, Ratanada, Jodhpur.
----Appellant
Versus
Khemaram S/o Shri Chunni Lal, R/o Plot No. 20, Mahadev Nagar,
Kudi Bhagtasani, Jodhpur.
----Respondent
For Appellant(s) : Mr. Rameshwar Hedau.
For Respondent(s) : Ms. Pratishtha Dave.
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
19/03/2025
1. Heard the parties on whether any substantial question of law
is involved in this second appeal or not.
2. This Second Appeal is against the judgment and decree
dated 11.12.2017 passed by District Judge, Jodhpur District
Original Civil Suit No.633/2011, whereby, the judgment and
decree dated 16.04.2013 passed by Civil Judge (Junior Division),
Jodhpur has been upheld.
3. The factual matrix of the case is that the plaintiff and
defendant had purchased a plot from Jodhpur Adarsh Pragatisheel
Grah Nirman Samiti, a residential colony in Vijay Nagar.
4. The plaintiff purchased plot no. 195 area 30 ft. X 50 ft. The
defendant purchased plot no. 196 having area in the north was 27
ft. and in the south 40 ft.
[2025:RJ-JD:14593] (2 of 4) [CSA-52/2018]
5. The plaintiff brought the suit for injunction against the
defendant to not to encroach upon the land of the plaintiff. During
suit, an application was filed that encroachment was made on 4 ft.
of the land of the plaintiff. Hence, recovery of possession was also
sought for. The learned trial Judge dismissed the suit. The
dismissal was challenged in appeal, which was also dismissed.
6. Contention of the learned counsel for the appellant is that
Commissioner was appointed by the trial Court for measurement
of the land and Commissioner found area of plot no. 195 as 26.1
ft. X 50 ft. Evidently, lessor land was there with the plaintiff,
however, ignoring the material on the record, Courts below have
dismissed the suit.
7. Contention of the learned counsel for the respondent is that
the area of plot no. 196 of the defendant was also measured and
no encroachment was found. In the circumstance, it cannot be
completely overruled that some other neighbours might have
committed encroachment. Plot No. 194 lying by the side of the
land of the plaintiff was not measured by the Commissioner
though construction on the said plot was made prior to the dispute
between the parties.
Contention is that unless there was specific material that
encroachment was made by the defendant only, no decree could
have been passed against the defendant.
8. The questions of law asserted as substantial questions of law
in this appeal are as follows:-
"(1) Whether document EX-1 Patta and EX-2 to 3
which have been proved with accordance to law as
per section 91 of Evidence Act, oral evidence of its
contents can be given more weithage?
[2025:RJ-JD:14593] (3 of 4) [CSA-52/2018]
(2) Whether the learned Courts below have not
properly considered the effect of the document EX-1
patta and EX-2 to 3 more particularly when it has
been found proved?
(3) Whether the learned Courts below have not
properly considered effect of the document EX-2 "Site
Plan" with regard to Size of Plaintiff Plot more
particularly when it has been found proved?
(4) Whether the learned court below had failed to
apperitiate the fact that documentary evidence of
plaintiff cannot be discarded merely on report of local
comissioner and oral evidence of defendant?
(5) Whether oral evidence of defendant can be
given more weightage than documentary evidence of
plaintiff which is already on record?
(6) Whether the learned Courts below have not
properly considered the effect of the document EX-1
to 3 more particularly when it has not been found
that the document EX-1 to 3 is admitted by
defendant/respondent?
(7) Whether the learned court below misread the
statement PW-1 plaintiff and discarded the evidence
on the grounds, which are erroneous in law?
(8) Whether the judgment and decree challanged
under appeal is vitiated on account of non-reading
and misreading of material evidence?
(9) Whether the judgment and decree challanged
under appeal is vitiated on account of non-reading
and misreading of pleading of plaintiff?
(10) Whether the judgment and decree challanged
under appeal is vitiated on account of non-
consideration of relevant and material documentary
evidence?
(11) Whether the judgment and decree under appeal
is based on misconception of plaintiff's suit and real
[2025:RJ-JD:14593] (4 of 4) [CSA-52/2018]
question in controversy therein hence judgment and
decree under appeal is deserves to be set-aside?"
9. As discussed above, none of the questions raised are
substantial question of law for adjudication in this appeal, rather,
are mixed questions of law and fact. At this stage, the Court
cannot accept the documentary evidence regarding the area of the
land of the plaintiff unless there is specific material that
encroachment was made by the defendant. Therefore, this Court
does not find any merit in this appeal.
10. Accordingly, this second appeal stands dismissed.
(BIRENDRA KUMAR),J
47-sumer/-
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