Jiram vs Lrs Of Kashi Ram on 12 April, 2023

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Rajasthan High Court - Jodhpur

Jiram vs Lrs Of Kashi Ram on 12 April, 2023

1. The present second appeal has been preferred by the appellant against the judgment and decree dated 02.12.2021 passed by the Additional District Judge No.1, Nohar, District (Downloaded on 11/11/2023 at 11:29:31 PM) [2023/RJJD/012010] (2 of 6) [CSA-116/2022] Hanumangarh (hereinafter referred to as 'the learned Appellate Court') in Regular Civil Appeal No.28/2017 (CIS No.28/2017), affirming the judgment and decree dated 25.08.2017 passed by the Civil Judge, Rawatsar (hereinafter referred to as 'the learned trial Court') in Civil Case No.08/2009 (CIS No.100/2014) whereby the suit as preferred by the plaintiff for permanent injunction was dismissed and the counter-claim as preferred by the defendants was decreed.

2. The case of the plaintiff was that he was in possession of the land of the joint ownership of him and his brother which was purchased from Balram and Omprakash. As the relations between the plaintiff and defendant no.1 were very good, a common door existed between their houses and subsequently because of the relations having strained, the defendant tried to demolish the wall situated in west side of the plaintiff's plot and is bent upon to use the same as a common way whereas there existed no Gali/common way in west side of the plaintiff's plot/land. Therefore, a prayer for permanent injunction to restrain the defendants from using the door and further from demolishing the wall of the plaintiff was made. A prayer for mandatory declaration for reconstruction of the wall in the event of the same being demolished during the pendency of the suit was also made.

3. The case of the defendants was that the land in question was the land of a Gali/common way and not of the ownership or possession of the plaintiff. The Gali was there right from inception, being used by the parties as a common way and now it was the plaintiff who had constructed a wall and blocked the common way. (Downloaded on 11/11/2023 at 11:29:31 PM)

[2023/RJJD/012010] (3 of 6) [CSA-116/2022] Therefore, vide a counter-claim, it was prayed that the wall as constructed by the plaintiff be demolished and the public way be got opened.

4. The learned trial Court framed as many as 6 issues and after hearing the parties proceeded on to dismiss the suit as preferred by the plaintiff and decreed the counter-claim of the defendants. The learned trial Court decided against the plaintiff with the following specific findings :

(i) that the plaintiff did not produce on record any document to prove his ownership/title on the land in question and to prove that no Gali/common way existed in the west side of his property;

(ii) that the plaintiff failed to prove the dimensions of the property by any cogent evidence and therefore, there was no material available on record to reach to a conclusion that the plaintiff was in possession of the land of his ownership only and not on any extra land of a Gali/common way as alleged by the defendants;

(iii) that the defendants exhibited documents A-6 & A-7, which were the application as preferred by the plaintiff before the Gram Panchayat for issuance of Patta in his favour and the proceedings taken up by the Gram Panchayat on the said application. The document A-6 comprised of the application dated 09.01.1991 wherein the name of the applicant was mentioned to be Jiram S/o Nandram Dudi. The map annexed along with the application also mentioned the land to be of Jiram. In the said map, a way in the west side of the plaintiff Jiram's property was shown. Exhibit A-7 was the receipt of an amount of Rs.1920.20 deposited by Jiram with the Gram Panchayat for issuance of the Patta. The order (Downloaded on 11/11/2023 at 11:29:31 PM) [2023/RJJD/012010] (4 of 6) [CSA-116/2022] passed by the Gram Panchayat for issuance of the Patta also mentioned about the said amount being deposited by Jiram.

Therefore, the documents Exhibit A-6 & A-7 were sufficient to prove the fact that there did exist a Gali/common way in the west side of the plaintiff's plot.

5. Although the plaintiff denied the said documents to be pertaining to him and submitted that the same pertained to some Jagdish S/o Nandram Dudi, the learned trial Court reached to a specific conclusion that Jiram S/o Nandram Dudi and Jagdish S/o Nandram Dudi were one and the same person. D.W.3 Ganpatram who was the Sarpanch of the Gram Panchayat in the year 1991 also deposed that plaintiff Jiram had preferred an application for issuance of the Patta before him and it is true that there was a Gali/common way in west side of the plaintiff's plot which has now been blocked by the plaintiff by constructing a wall.

6. The learned Appellate Court affirmed the findings as reached by the learned trial Court and dismissed the appeal as preferred by the appellant-plaintiff.

7. Two grounds have been raised before this Court by learned counsel for the appellant. Firstly, that the courts below were not justified in concluding that Jiram and Jagdish were the same person and secondly, the courts decided in favour of the defendants without there being any evidence on record produced by the defendants qua their ownership/title.

8. So far as the finding of both the courts regarding Jiram and Jagdish to be the same person is concerned, a perusal of Exhibit- A-6 specifies the application to be moved by Jiram, the map (Downloaded on 11/11/2023 at 11:29:31 PM) [2023/RJJD/012010] (5 of 6) [CSA-116/2022] annexed along with also specifies the same to be of the land belonging to Jiram, the receipt Exhibit-A-7 also specifies to be issued in the name of Jiram. The amount paid qua the receipt is Rs.1920.20 which is the same amount mentioned in the order dated 09.03.1991 passed by the Gram Panchayat for issuance of Patta in favour of Jagdish S/o Nandram Dudi. A cumulative reading of all these documents makes it crystal clear that all the proceedings pertained to one parcel of land only and the same was of the plaintiff Jiram.

9. So far as the second ground raised by the learned counsel for the appellant is concerned, the defendant was nowhere required to prove his ownership on the plot. Firstly, no issue on the point was framed and secondly, it was the plaintiff who had claimed his ownership on the disputed land and therefore, the burden to prove the said fact was on the plaintiff only. So far as the defendant is concerned, his case was that there existed a common way between his and the plaintiff's house and in the opinion of this Court, the same was very well proved on record. The ownership of the defendant was nowhere in question and therefore, he was not required to prove so.

10. The findings as arrived at by both the courts below cannot therefore be interfered with, the same being based on complete appreciation of evidence and material available on record. Further, the site report as prepared by the Development Officer, the proceedings initiated by the Gram Panchayat for removal of encroachment and the site report prepared by Gram Sewak exhibited as Exhibits-A3, A4 & A5 relied upon by both the courts (Downloaded on 11/11/2023 at 11:29:31 PM) [2023/RJJD/012010] (6 of 6) [CSA-116/2022] below also, in unequivocal terms, substantiate the case of the defendants that there was a Gali/common way situated on the site and a wall had been constructed on the site which clearly seemed to be a new construction. The defendants has proved on record beyond reasonable doubt that there did exist a common way between the houses of the plaintiff and the defendants and the same was being tried to be encroached upon by the plaintiff by constructing a wall so as to block the common way.

11. In the opinion of this Court, the above findings as reached by the both the courts below firstly, being based on the evidence available on record and secondly, being totally factual in nature does not involve any question of law.

12. No substantial question of law arises in the present second appeal and the same is therefore, dismissed.

13. The stay petition and all the pending applications stand disposed of.

(REKHA BORANA),J 9-Vij/-

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Rajasthan High Court - Jodhpur