Rajasthan High Court - Jodhpur
Lrs Of Banshi Lal vs Lrs Of Kanheya Lal on 4 November, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:47199]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 58/2021
1. Lrs Of Banshi Lal, By Caste Acharya, R/o Phalna Station,
Tehsil Bali, District Pali (Raj.).
3. Kiran Lal S/o Banshi Lal, Aged About 62 Years, By Caste
Acharya, R/o Phalna Station, Tehsil Bali, District Pali
(Raj.).
4. Om Prakash S/o Banshi Lal, Aged About 59 Years, By
Caste Acharya, R/o Phalna Station, Tehsil Bali, District Pali
(Raj.).
5. Ashok S/o Banshi Lal, Aged About 52 Years, By Caste
Acharya, R/o Phalna Station, Tehsil Bali, District Pali
(Raj.).
6. Smt. Sundar Devi D/o Banshi Lal, Aged About 56 Years,
By Caste Acharya, R/o Phalna Station, Tehsil Bali, District
Pali (Raj.).
7. Smt. Vidhya Devi D/o Banshi Lal, Aged About 47 Years,
By Caste Acharya, R/o Phalna Station, Tehsil Bali, District
Pali (Raj.).
----Appellants
Versus
1. Lrs Of Kanheya Lal, S/o Hemraj, By Caste Kalal Mewara,
R/o Phalna Station, Tehsil Bali, District Pali (Raj.).
2. Smt. Dariyav Kanwar W/o Kanheya Lal, By Caste Kalal
Mewada, R/o Phalna Station, Tehsil Bali, District Pali
(Raj.).
3. Dharamveer S/o Kanheya Lal, By Caste Kalal Mewada, R/
o Phalna Station, Tehsil Bali, District Pali (Raj.).
4. Karamveer S/o Kanheya Lal, By Caste Kalal Mewada, R/o
Phalna Station, Tehsil Bali, District Pali (Raj.).
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5. Suman D/o Kanheya Lal, By Caste Kalal Mewada, R/o
Phalna Station, Tehsil Bali, District Pali (Raj.).
6. The Executive Officer, Municipality, Khudala-Phalna,
District Pali (Raj.).
----Respondents
For Appellant(s) : Mr. Gopal Lal Acharya
For Respondent(s) : -
HON'BLE MR. JUSTICE FARJAND ALI
Order
ORDER PRONOUNCED ON ::: 04/11/2025
ORDER RESERVD ON ::: 18/08/2025
BY THE COURT :-
1. By way of filing the instant Civil Second Appeal, the appellants
seek quashing of the judgment and decree dated 29.01.2021
passed by the learned Additional District Judge, Pali, in Civil
Regular Appeal No. 21/2011, whereby the learned Judge affirmed
the judgment and decree dated 02.04.2011 rendered by the
learned Civil Judge (Junior Division), Bali, District Pali, in Civil Suit
No. 236/1998 (14/1997). By the said judgments, the suit as well
as the appeal filed by the appellants-plaintiffs were dismissed.
2. Briefly stated, the facts of the case are that the
husband/father of the appellants, Late Shri Banshi Lal, instituted a
civil suit seeking cancellation of Sale Deed No. 290/1992 dated
24.09.1992, executed by respondent No. 2 in favour of
respondent No. 1, Kanheya Lal, alleging that the said transaction
was void and inoperative against his lawful rights and possession.
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2.1 It was the case of the plaintiff that he was the lawful owner
and possessor of a residential plot situated at Bhadwada Mohalla,
Phalna Station, upon which he had constructed a dwelling house
comprising one room, a kitchen, an "ora," and a surrounding
boundary wall. The said construction, as per the plaintiff, had been
duly approved by the then Executive Officer, Municipality, Khudala
Phalna, who also issued a sanctioned map in this regard.
2.2 The plaintiff asserted that the land in question was originally
revenue land recorded in Khasra No. 352 in his name, and that his
long-standing possession had been recognized in Civil Case No.
1611/1982 (State vs. Badri Lal @ Banshi Lal Acharya). After due
inquiry, the competent authority held that the disputed house was
the ancestral property of the plaintiff and that he was in
continuous possession for several decades, using it for residential
purposes. Consequently, the Tehsildar, Bali, vide order dated
21.04.1982, regularized the plaintiff's possession upon deposit of
the prescribed fee of Rs. 5/-.
2.3 Despite this regularization, respondent No. 2 issued a notice
dated 05.10.1990 under Section 203 of the Rajasthan
Municipalities Act, 1959. The plaintiff submitted his reply,
whereupon the notice was withdrawn acknowledging his lawful
possession, and the proceedings were dropped.
2.4 Nevertheless, in complete disregard of the plaintiff's rights,
respondent No. 2 executed Sale Deed No. 290/1992 dated
24.09.1992 in favour of respondent No. 1, purporting to convey
title over the very same plot. It was alleged that respondent No. 2
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had no lawful authority or ownership rights to execute the said
deed, rendering it null and void ab initio.
2.5 The plaintiff came to know about the impugned sale deed
when respondent No. 1 instituted a separate civil suit against him.
The plot, according to the plaintiff, formed an integral part of his
residential house, bounded on the east by a public way and on the
west by a narrow street (gali). The Commissioner's Report and the
site map dated 31.01.1996 submitted in Civil Suit No. 9/1996
corroborated the plaintiff's possession over the disputed property.
2.6 Upon learning of the sale transaction, the plaintiff served a
legal notice upon both defendants demanding cancellation of the
sale deed, but to no avail. Consequently, he instituted the present
suit seeking a declaration that Sale Deed No. 290/1992 be
cancelled and declared null and void, being executed without
jurisdiction and in derogation of his vested rights.
2.7 The respondent/defendant No. 1 filed a written statement,
categorically denying the allegations. It was contended that the
land purchased was Abadi land, lawfully owned and possessed by
respondent No. 2, which had been purchased by respondent No. 1
through a valid sale deed dated 24.09.1992 for a consideration of
Rs. 360/-. It was further asserted that the defendant had been in
peaceful possession thereof ever since, enclosing the plot by a
thorn fence.
2.8 It was alleged that the plaintiff, being a neighbour, had
attempted to encroach upon the land by misdescribing
measurements and boundaries. The defendant also claimed that
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on 29.01.1996, the plaintiff had placed certain household articles
on the land, an act that did not confer possession. It was further
argued that the Tehsildar had no authority to regularize Abadi
land, and only the Municipality was competent to grant such
permission. Hence, it was urged that the plaintiff was a trespasser
and not entitled to any relief.
2.9 Upon completion of pleadings, the learned Trial Court framed
four issues, including the issue of relief, and afforded both sides
an opportunity to lead evidence. After evaluating the oral and
documentary evidence, the Trial Court, vide judgment and decree
dated 02.04.2011, dismissed the suit, holding that the sale deed
was validly executed and that the plaintiff had failed to establish
ownership or possession.
2.10 Being aggrieved, the plaintiffs preferred a First Appeal
before the learned Additional District Judge, Bali, District Pali,
who, after hearing the parties and examining the record,
dismissed the appeal vide judgment and decree dated
29.01.2021, affirming the findings of the Trial Court. Hence, the
present Civil Second Appeal.
3. Learned counsel for the appellants submitted that both the
courts below committed a grave error of law and fact in deciding
Issue No. 1 against the appellants. It was contended that the plot
in question was lawfully owned and possessed by the plaintiff, duly
regularized by the Tehsildar, Bali, on 21.04.1982 after inquiry in
Civil Case No. 1611/1982, where it was held to be ancestral
property in continuous possession of the plaintiff. Despite this,
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respondent No. 2, having full knowledge of such regularization,
illegally executed the sale deed in favour of respondent No. 1,
though he had no lawful title or authority to do so.
3.1 It was further urged that once Issue No. 1 was erroneously
decided, the learned Trial Court, without independent appreciation
of evidence, proceeded to decide Issues No. 2 and 3 also against
the plaintiffs, ignoring that the plaintiffs had been in continuous,
peaceful possession for over 30 years, thereby perfecting title by
adverse possession. Reliance was placed on Exhibit 3, the
testimony of PW-4 Heera Lal, the Commissioner's Report (Exhibit
10), and the site map dated 31.01.1996, all evidencing possession
of late Banshi Lal. It was contended that the courts below ignored
these crucial pieces of evidence and Exhibits 4 & 5, which proved
that the land was revenue land and that the Municipality had
earlier withdrawn its notice recognizing the plaintiff's possession.
3.2 Thus, it was argued that both judgments suffer from
perversity and non-consideration of vital evidence, and are
therefore unsustainable. The appeal, it was submitted, is within
limitation and raises substantial questions of law namely:
(a) Whether the land in question was owned and possessed by the
plaintiffs;
(b) Whether Sale Deed No. 290/1992 is null and void; and
(c) Whether the appellants are entitled to regularization of
possession and issuance of patta.
Lastly, it was prayed that both impugned judgments be quashed
and set aside.
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4. I have heard learned counsel for the appellants and perused
the impugned judgments and the material on record.
4.1 Upon consideration, it is evident that both the Trial Court and
the First Appellate Court have concurrently held, on appreciation
of evidence, that the plaintiff failed to establish ownership, title, or
lawful possession over the disputed land.
4.2 The plea of adverse possession has been rightly rejected. It
is well settled that animus possidendi (means the intention to
possess as owner) is essential for establishing adverse possession.
Unless such intention is proved and the possession shown to be
open, continuous, and hostile to the true owner, the claim cannot
be sustained. The Hon'ble Supreme Court in M. Durai v. Madhu
& Ors. (Civil Appeal No. 6195/2000, decided on
11.01.2007) held that mere long possession does not constitute
adverse possession without the requisite animus. Similarly, in iit
was held that one who admits another's ownership cannot claim
adverse possession against him.
4.3 In the present case, the appellants' reliance on alleged
regularization by the Tehsildar and municipal orders defeats their
plea of adverse possession, as such reliance acknowledges
superior title in the State or Municipality. Thus, the courts below
rightly held that possession was neither adverse nor continuous
for the statutory period.
4.4 Both courts also correctly concluded that the Tehsildar lacked
jurisdiction to regularize Abadi land, and that the disputed
property was never shown to form part of revenue land belonging
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to the plaintiff. These are findings of fact, and this Court finds no
justification to disturb them.
5. It is trite law that a Second Appeal lies only when a
substantial question of law arises. The jurisdiction of this Court
under Section 100 CPC is confined strictly to such questions and
does not extend to reappreciation of evidence or interference with
concurrent findings of fact.
5.1 The Hon'ble Supreme Court, in Singaram v. Ramanathan,
CA No. 4939/2021 (LL 2021 SC 445), emphasized that the
existence and formulation of substantial questions of law are
statutory mandates. Similarly, in Sudam Kisan Gavane (D)
through LRs v. Manik Ananta Shikketod (D) through LRs,
Civil Appeal No. 5272 of 2010, it was held that in the absence
of such questions, the appeal must fail at the threshold.
5.2 In the present case, learned counsel for the appellants has
failed to point out any substantial question of law arising from the
concurrent findings of fact. The findings are based on due
appreciation of evidence, are neither perverse nor contrary to law,
and warrant no interference by this Court.
6. In view of the foregoing discussion and the settled legal
position, this Court finds no illegality, perversity, or jurisdictional
error in the concurrent judgments and decrees dated 02.04.2011
and 29.01.2021 passed by the courts below. Since no substantial
question of law arises for determination, the present Civil Second
Appeal stands dismissed.
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6.1. The stay petition also stands dismissed. No order as to
costs.
(FARJAND ALI),J
129-Mamta/-
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