Rajasthan High Court - Jodhpur
Poonam Chand vs Amra And Ors on 17 September, 2025
[2025:RJ-JD:40788]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 88/1996
Poonam Chand (deceased) through LR's
i. Dauli Devi wife of poonam chand by caste Lakhara
ii. Jitendra kumar s/o late Poonamchand
iii. Kanhyaram s/o late poonam chand by caste lakhara of
Pithapura, Tehsil Revdar, District Sirohi.
----Appellant
Versus
1. Amra s/o Dhanaji Kalbi, resident of Pithapura, Tehsil RevDar
District Sirohi (deceased)
i/i. Moolaram s/o amra
i/2. Rawtaram s/o amra
i/3. Dungarram s/o amraram (already on record as respondent
No 2)
i/4. Ratnaram s/o Amra
i/5- Motiram s/o amra
i/6. Valma D/o amra
by caste Kalbi all resdients of Peethapura, Tehsil Revdar, District
Sirohi
2. Doongra s/o amra Kalbi patel resdient of Pithapura Tehsil
Revdar, District sirohi.
----Respondents
For Appellant(s) : Mr. Jayant Jain
Ms. Urvashi Kalla
For Respondent(s) : None present
HON'BLE MR. JUSTICE BIPIN GUPTA
Judgment
Reserved on : 04/09/2025
Pronounced on : 17/09/2025
1. The present second appeal has been filed against the
judgment and decree dated 15.02.1996 passed by the learned
Civil Judge (Senior Division) Sirohi in Civil Appeal No.11/91
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whereby the appeal of the defendants was allowed and the
judgment and decree dated 20.12.1990 passed by learned Munsif
& Judicial Magistrate, Sirohi in Civil Original Suit No.56/1983 has
been set aside.
2. Brief facts giving rise to this appeal are that the plaintiff-
appellant herein had filed an amended suit for mandatory
injunction and declaration stating therein that the plaintiff's plot
ad-measuring 11 feet x 9 feet total = 99 square feet is situated in
village Pithapura, Tehsil Reodar having sale deed dated
01.01.1969 from Gram Panchayat, Pithapura. The boundaries of
the plot were mentioned in para 1 of the plaint. Towards west side
of the plot of the plaintiff, there exist a Gali of 04 feet which has
been encroached upon by the defendants and on the wall of the
plaintiff towards western side which was existing of height of 2.5
feet, the defendants made construction by raising the same wall
and included in their house.
3. In the suit, it was prayed that the defendants may be
restrained from raising the wall towards western side of his plot
and they may also be directed not to make any construction in the
Gali.
4. The defendants filed the reply denying the averments made
in the plaint. It was contended that there exist a 04 feet Gali on
the eastern side of the defendant's house, however the said Gali
has been encroached upon by the plaintiff. The plaintiff had sought
permission to raise construction which was refused by the Gram
Panchayat in the year 1983 and it was also decided by the Gram
Panchayat that the Patta which has been issued in favour of the
plaintiff is illegal and for its cancellation, action may be taken. In
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additional plea, it was submitted by the defendants that the Gram
Panchayat has not been made party and therefore, the suit may
be dismissed.
5. On the basis of the pleadings of the parties, the learned trial
Court framed the following issues:
" 1- vk;k oknh ds oknxzLr ew[k.M ds igpku ckcr~ okni= esa
i;kZIr fooj.k fn;k gqvk ugha gS] vr% ;g okn ifjiks'k.kh; ugha gSA
-----izfroknhx.k
2- vk;k izfroknhx.k }kjk Ø; fd;s gq, dycks geksjk jkek gjnk ds
Hkq[k.M dh Hkwfe ds iB esa iwoZo fn"kk esa pkj QhV dh xyh NksM+dj
vkxs Jh xzke iapk;r ihFkiqjk }kjk lEikfnr vkcknh Hkwfe ds foØ;
foys[k la[;k 5 fnukad 1-1-69 dk oknh dk oknxzLr Hkq[k.M iwoZ
if"pe 11 QhV ,oa mRrj nf{k.k 9 fQV dqy 99 oxZ QhV {ks=Qy
dk vk;k gqvk gSaA
---------oknh
3- vk;k izfroknhx.k us oknh ds oknxzLr Hkq[k.M ds if"pe nhokj esa
fufeZr nks QhV pkSM+h ,oa 11 QhV yEch ,oa <kbZ QhV Å¡ph nhokj
dks Å¡ph mBkdj vius uofufeZr edku ds iB dks iwohZ fnoky esa
feyk fy;k gSaA
------oknh
4- vk;k izfroknhx.k fuoknksa ds oknxzLr Hkq&[k.M dks if"peh nhokj
esa ydM+h dh ?kksfM;sa Qalkdj mlds lgkjs vius uo&fufeZr edku
dh dsyiks"k Nr dks oknh ds Hkw&[k.M dks Hkwfe dh rjQ 1 fQV rd
vkxs fudky dj oknh ds vpy lEifr ij lnks'k vfrØe.k fd;k
gSaA
--------oknh
5- vk;k izfroknhx.k us viuk edku fuekZ.k djus esa oknh ds Hkq[k.M
ds if"pe esa vkbZ gqbZ 4 fQV dh xyh dh [kkylkbZ Hkwfe dks vius
edku esa feyk fn;k gSA
-------oknh
6- vk;k oknh izfroknhx.k ds fo:) mlds if"peh fnokj ij ,oa 5
fQV dh xyh dh Hkwfe ij fd;s x;s vfrØe.k dks gVok dj mls
iwoZor fLFkfr esa yk;s tkus gsrq vkns"kkRed O;kns"k izkIr djus dk
vf/kdkjh gSa
----------oknh
7- vk;k oknh dk;g okn izfroknhx.k ds izfrokn i= ds fo"ks'k dFku
ds in la- 1 rk 7 esa of.kZr vkifr;ksa ds dkj.k ifjiks'kuh; ugha gSA
------izfroknhx.k
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8- vk;k izfroknhx.k oknh ls fo"ks'k [kpkZ ikus dk vf/kdkjh gSaA
------izfroknhx.k
9- vuqrks'k D;k gksA"
6. The learned trial Court decided issue No.1 against defendant.
Issue No.2 was decided against the defendant. Issue No.3 was
decided in favour of the plaintiff. Issue No.4 was decided in favour
of the plaintiff. Issue No.5 was decided in favour of the
defendants. Issue No.6 was decided against the plaintiff. Issue
No.7 was decided against the defendants. On the basis of the
findings on the above issues, issue No.8 and 9 were decided vide
judgment and decree dated 20.12.1990 in the manner that a
decree of permanent as well as mandatory injunction was issued
directing that the western wall of the plaintiff which was existing
in the height of 2.5 feet, on which the defendant had raised
construction may be brought into the same position and the
defendants were directed to remove the construction made on
western wall of the plaintiff.
7. Being aggrieved by the judgment and decree dated
20.12.1990, the defendants filed the first appeal. The appellate
court upheld the finding on issue No. 1. However, the finding on
issue No. 2, which was based on the plaintiff's cross objection,
was reversed. The findings on issues No. 3 and No. 4 were also
reversed by the learned appellate court. The findings on issues No.
5, 6, and 7 were upheld. Based on these findings, the defendants'
appeal was allowed, and the suit was dismissed. The cross
objection was allowed to the extent of issue No. 3, and thus,
ultimately, the suit was dismissed.
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8. Being aggrieved, the plaintiff-appellant preferred the present
second appeal in which following substantial questions of law were
framed by this Court vide order dated 27.01.1997 which are as
under:-
"1. Whether the learned lower appellate court has
reversed the findings recorded by the learned trial
court without meeting the reasons given by the
learned trial court ?
2. Whether the learned lower appellate has
committed serious error of procedure in ignoring the
Commissioner report, which has resulted into
mis-carriage of justice in the present case, if so, what
its effect ?"
9. Counsel for the plaintiff-appellant argued that the well
reasoned findings recorded by the learned trial Court has been
interfered with by the learned first appellate Court without
recording any cogent reasons. The learned trial Court relying upon
the evidence available on record had correctly passed a decree in
faovur of the plaintiff whereas the learned first appellate Court
while ignoring the material evidence i.e. the report of the
Commissioner has wrongly reversed the well reasoned finding of
the learned trial Court and therefore, the substantial questions of
law may be decided in their favour and the judgment and decree
dated 15.02.1996 passed by the learned first appellate Court may
be set aside and the judgment and decree dated 20.12.1990 of
the trial Court may be restored.
10. Heard learned counsel for the appellant and perused the
record. None was present on behalf of the respondents to oppose
the arguments as advanced by the counsel for the appellant.
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11. Question No.1 which has been raised to the effect that the
Appellate Court has reversed the well reasoned finding of the Trial
Court. However, this Court finds that the learned trial court,
without correctly appreciating the documents on record, decided
issue No. 2 against the plaintiff. On that premise, the learned trial
court concluded that the boundary on western side of the
plaintiff's house belongs to plaintiff. The learned first appellate
Court on the cross objection of the plaintiff had reversed the
finding on issue No.2 and has found that there exist a Gali of 04
feet between the house of the plaintiff and the defendant. Once it
is established that a 4-feet wide Gali exists between the plaintiff's
and defendant's houses, the boundary wall on the western side
cannot be regarded as plaintiff's.
12. The learned first appellate court has categorically recorded a
finding of fact that there exists a 4-feet wide Gali between the
houses of the plaintiff and the defendants and this finding was
recorded by the first appellate court on the basis of the plaintiff's
own case. The learned trial Court on the basis of misreading Patta
Exhibit-1 had found that there is no Gali on the western side of
the plaintiff's plot which was cross objected by the plaintiff himself
by filing the cross objection. It was categorically recorded by First
Appellate Court that there exists a Gali between the houses of the
plaintiff and defendant. In Exhibit-1, which is the alleged Patta of
the plaintiff and was produced by the plaintiff himself, a Gali exists
on the western side. The trial court, therefore, recorded a wrong
finding, which was corrected by the learned first appellate court by
reversing the finding on Issue No. 2.
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13. The learned first appellate court, while reversing the finding
on Issue No. 3, after a categorical reading of the Commissioner's
report, found that the western wall, which the plaintiff claims as
his own, is 9 feet in height when viewed from the defendant's
side. The plinth level of the plaintiff's land is higher than that of
the defendants. The defendant's possession since the time of
Hamira and Rama, and has long been below the plinth level of the
plaintiff's land. Since there is a difference in the plinth levels which
was not indicated by the plaintiff in his plaint, therefore only the
boundary wall belonging to the defendant was found to be of that
height. The learned first appellate court, on that basis, found that
it is the plaintiff who, after encroaching upon the 4-feet Gali
existing between the two houses, is alleging that the eastern wall
of the defendants is his own wall. Such finding was recorded by
the learned first appellate court after considering the
Commissioner's report as well as Exhibit A/7 rejection of
permission for construction of plaintiff. Being a finding of fact, no
perversity is found by this Court in order of reversal findings
recorded by the learned appellate court.
14. Since the findings on Issue Nos. 2 and 3 were correctly
reversed by the learned first appellate court, the findings on the
other issues necessarily had to be decided accordingly, based on
issues Nos. 2 and 3. This Court finds that the finding as recorded
by the first appellate Court is based on the evidence available on
record and the same is not perverse in any manner. The learned
first appellate court, after considering all the documents on record
including the Commissioner's report, has recorded a finding of fact
based on the evidence available on record, which requires no
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interference by this Court. This Court finds that the finding of fact
recorded by the learned first appellate court, in reversing the
finding of the trial court, is based on material available on record.
This Court also finds that the first appellate court correctly
appreciated the evidence on record, which was wrongly
appreciated by the trial court. The learned first appellate court has
recorded reasons based on the material evidence, which is not
found to be perverse. Therefore, Question No. 1, as framed
above, is answered in the negative.
15. Question No.2 which has been raised is to the effect that
the learned lower appellate Court has ignored the Commissioner's
report, which has resulted into mis-carriage of justice. However,
this Court finds that the learned first appellate court, after
considering the Commissioner's report, recorded a finding on
Issue No. 3 and noted that there is a difference in the plinth levels
of the plaintiff's and defendant's plots. Thereafter, upon
considering the other material available on record, the Court
reversed the finding on Issue No. 3. Since the learned first
appellate court considered the Commissioner's report, it cannot be
said that it was ignored. Therefore, Substantial Question of Law
No. 2 is also answered in the negative.
16. Based on the answers to the substantial questions of law,
this Court finds that the judgment passed by the learned first
appellate court is based on the material evidence available on
record. The judgment has been rendered with the correct
perspective and upon proper appreciation of the evidence.
Therefore, the present second appeal is liable to be dismissed.
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17. Accordingly, the present second appeal is dismissed. No
order as to costs.
18. Stay petition and pending applications, if any, stand
disposed of.
(BIPIN GUPTA),J
7-praveen/-
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