Rajasthan High Court - Jodhpur
Mohd. Iqbal And Anr vs Hasan (2024:Rj-Jd:48338) on 27 November, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:48338] (1 of 3) [CSA-46/2015]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 46/2015
1. Mohammed Iqbal S/o Late Shri Gulam Rasool, Aged 60 years,
by caste Musalman, resident of Mohalla Punjabgiran, Bikaner.
2. Legal representative of late Mojuddin S/o Shri Gulam Rasool:-
2/1. Smt. Fatima Bano W/o Late Shri Mojuddin, by caste
Musalman, resident of Mohalla Punjabgiran, Bikaner.
----Appellants
Versus
Hasan S/o Shri Ali Khan, by caste Musalman, resident of Mohalla
Punjabgiran, Bikaner.
----Respondent
For Appellant(s) : Mr. M.S. Purohit
For Respondent(s) : Mr. J.K. Bhaiya
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order 27/11/2024
1. Heard the parties.
2. Original plaintiff - Gulam Rasool filed Civil Original Suit No.234/1980 seeking for a decree of permanent injunction against the defendant-respondent restraining the defendant from not opening any window, door etc. on the common wall standing on the land having joint possession of the parties.
3. The trial Court dismissed the suit vide judgment and decree dated 10.02.2003 passed in Civil Original Suit No.234/1980 for the reason that permanent injunction cannot be allowed unless exclusive title is pleaded and declaration of title is sought for. The (Downloaded on 30/11/2024 at 12:10:02 AM) [2024:RJ-JD:48338] (2 of 3) [CSA-46/2015] judgment of the trial Judge was challenged in the appeal bearing Civil Regular Appeal No.42/2012. The appeal was also dismissed by judgment and decree dated 02.12.2013.
4. It is not disputed, rather it is plaintiff-appellants case that some common land was left by the parties, who were in near relations. On that common land, a wall of 10 feet was standing. The defendants were trying to open window, door etc. on that wall.
5. The law is well-settled that since there is unity of title and possession of the parties over the suit land, no one can be restrained from its use unless the common land is partitioned with definite area and boundary between the parties.
6. Therefore, this Court does not find that the Courts below have erred in anyway.
7. However, the appellants have raised following questions as substantial questions of law :
"i) Whether the learned courts below have erred in dismissing the suit for injunction holding that the land in question is joint land, where the suit was filed for injunction only and the title was not at all relevant?
ii) Whether the learned Courts below have erred in dismissing the suit ignoring the relevant evidence including the report of the Commissioner?
iii)
iv) Where the learned Court below has erred in discarding the evidence of the defendant and believing the evidence of the plaintiff in toto?
v) Whether the findings arrived at by the learned court below are contrary to law and facts and perverse?(Downloaded on 30/11/2024 at 12:10:02 AM)
[2024:RJ-JD:48338] (3 of 3) [CSA-46/2015]
vi) Any other question which this Hon'ble Court deems just and proper may be framed and decided?"
8. None of the questions above are substantial questions of law, rather are mixed questions of law and fact, hence, second appellate Court cannot go into it.
9. Accordingly, the instant civil second appeal stands dismissed as being devoid of any merit.
(BIRENDRA KUMAR),J 76-deep/-
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