Rajasthan High Court - Jaipur
Shiv Dayal vs Ram Vilas And Ors on 7 November, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 727/2017
Shiv Dayal S/o Shri Kori Lal R/o Adarsh Nagar-B, Mantown
Bajaria, Distt. Sawai Madhopur Raj.
----Appellant
Versus
1. Ram Vilas S/o Shri Harphool R/o Mau, Teh. And Distt.
Sawai Madhopur Raj.
2. Bajrang Lal S/o Shri Sunder R/o Selu Ka Tapara, Alanpur,
Teh. Sawai Madhopur Raj.
3. Ram Lal S/o Shri Laddu Lal R/o Railway Colony, Sawai
Madhopur Raj.
4. Ramesh Chand S/o Shri Bhura Lal R/o Railway Colony
Sawai Madhopur Raj.
5. Smt. Meena W/o Shri Ramesh Chand R/o Railway Colony,
Sawai Madhopur Raj.
6. Greesh Chand S/o Shri Jevan Lal R/o Mahatma Gandhi
Nagar, Near D.c.m. Godown, Plot No. 177, Jaipur Raj.
7. Sunil S/o Shri Srichand, R/o Sadar Bazar, Sawai
Madhopur Raj.
8. Anil S/o Shri Srichand R/o Sadar Bazar, Sawai Madhopur
Raj.
----Respondents
For Appellant(s) : Mr. Mahesh Gupta
For Respondent(s) : Mr. P.S. Sharma
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
07/11/2022
1. Appellant-plaintiff has preferred this civil second appeal under Section 100 CPC, assailing judgment and decree dated 29.8.2017 passed by Additional District Judge, Swai Madhopur in appeal No.80/2016, affirming the judgment and decree dated 24.2.2014 passed by Additional Civil Judge (Junior Division), Swai Madhopur in suit No.36/1997 whereby and whereunder the civil suit filed by plaintiff for declaration, cancellation of registered sale (Downloaded on 11/11/2022 at 09:13:27 PM) (2 of 4) [CSA-727/2017] deed and permanent injunction as also the conversion order has been dismissed and the counter claim of defendant No.1 Ram Vilas has been decreed in respect of plot and his ownership and possession.
2. Heard counsel for both parties, perused the impugned judgments and record.
3. It appears from record that appellant-plaintiff claimed to purchase a plot measuring 25X50 square feet out of land of Khasra No.590/2 situated at village Mau, Tehsil and District Swai Madhopur. Plaintiff's case is that the said agricultural land was belonging to defendant No.2 Bajrang Lal and he carved out five plots of equal size out of his land and therefore, no extra land left at side. However, defendant No.2 Bajrang Lal apart from his five plots has executed one sale deed dated 23.3.1992 (Ex.2) in favour of defendant No.5 Meena in respect of land having area of 136.85 square yards. Defendant No.5 Meena in turns sold this area to defendant No.1 through registered sale deed dated 5.1.1993. Plaintiff claimed that both sale deeds dated 23.3.1992 and subsequent sale deed dated 5.1.1993 be cancelled and on the basis of such sale deeds, defendants be restrained not to encroach upon his plots through sale deed of plaintiff.
4. It appears that the trial Court after recording evidence of both parties has recorded fact findings that plaintiff (Pw.1) himself has admitted in his cross-examination that defendant No.2- Bajrang Lal was having 1/16th share which was measuring about 803.51 square yards and out of such area, he got converted an area of 666.66 square yards, therefore, the area of 136.85 square yards land remain left with defendant No.2 Bajrang lal which was (Downloaded on 11/11/2022 at 09:13:27 PM) (3 of 4) [CSA-727/2017] not get converted. It is an admitted case of plaintiff that five plots were carved out by defendant No.2 BajrangLal out of area of 666.66 square yards. The trial Court has further recorded fact finding that the left out area of land i.e. 136.85 square yards was sold by defendant No.2 Bajrang Lal to defendant No.5 Meena vide sale deed dated 23.3.1992 and on the basis of such sale deed the mutation was open in the name of defendant No.5 Meena. Thereafter, defendant No.5 through sale deed dated 5.1.1993, transferred her plot to defendant No.1 Ram Vilas. On the basis of such fact findings, the trial Court observed that there is no evidence that defendants made any encroachment over purchased plot of plaintiff measuring 25X50 feet and further sale deed executed by Bajrang Lal in respect of land having area of 136.85 was sold out of his own agricultural land. Therefore, the case of plaintiff seeking cancellation of sale deed dated 23.3.1992 has been dismissed on merits and on the basis of aforesaid facts and circumstances, his suit as in toto has been dismissed vide judgment dated 24.2.2014.
5. Plaintiff challenged the judgment and decree dated 24.2.2014, by way of first appeal. The First Appellate Court re- consider the entire evidence and concurred with fact findings of the trial Court that as per evidence, it is clear that defendant No.2 Bajrang Lal executed sale deed dated in favour of defendant No.5 Meena in respect of area of 136.85 square yard land which was left with him after conversion of the land of 666.66 square yards from his 1/6th share in Khasra No.590/2 at Village Mau. Thus, the first appeal was dismissed on merits vide judgment dated 29.8.2017.
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6. This Court finds that both Courts below have concurrently held that plaintiff has no case for cancellation of sale deeds dated 23.3.1992 as sale deeds were executed in respect of land of defendant No.2 and through these sale deeds, both Courts below have concurrently observed that plaintiff miserably failed to establish that any encroachment by defendants upon his plot measuring 25X50 feet, was made. Therefore, both Courts below have not committed illegality and jurisdictional error in dismissing plaintiff's suit whereas since it is established on record that defendant No.1 Ram Vilas purchased the plot in question through registered sale deed, therefore, his counter claim has been decreed for not interfering in the plot which lies in his ownership and possession.
7. Fact findings of both Courts below are neither perverse nor based on surmises and conjectures rather both Courts have appreciated or re-appreciated the entire evidence on record as such do not give rise to any substantial question of law.
8. It is trite law that in absence of any substantial question of law, the second appeal cannot be entertained, therefore, the second appeal is dismissed in limine.
9. All pending application(s), if any, also stand(s) disposed of.
10. Record of both Courts below be sent back forthwith.
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