Rajasthan High Court - Jaipur
Maniram vs Heera Lal And Others on 11 October, 2011
Author: Prem Shanker Asopa
Bench: Prem Shanker Asopa
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL SECOND APPEAL NO.849/2011 Maniram Versus Heera Lal and others DATE OF ORDER --- October 11,2011 PRESENT HONBLE MR.JUSTICE PREM SHANKER ASOPA Mr.Mohit Gupta, for the plaintiff-appellant BY THE COURT
(1) Heard learned counsel for the plaintiff-appellant.
(2) This is plaintiff's second appeal against the judgment and decree dated 3.8.2011 passed by the Addl. Distt.Judge, Behror in Civil Appeal No.17/2007 affirming the judgment and decree dated 3.4.2007 passed by the Civil Judge (Senior Division) No.1, Behror whereby suit of the plaintiff for permanent injunction has been dismissed.
(3) The brief facts of the case are that on the Northern wall of the the plaintiff's plot, the defendant-respondents (in short 'defendants') intended to forcefully raise construction and take the disputed wall shown 'A' to 'B' in the map, in their possession. The civil suit was filed with the prayer to restrain the defendants from taking the disputed wall marked 'A' to 'B' in their possession and further to restrain the defendants from creating any disturbance in the use and enjoyment of the plot.
(4) The defendants denied the averments made in the plaint and further stated that the wall in question is common wherein both -the plaintiff and the defendants have equal right. It was further stated in the written statement that the defendants wanted to raise construction on the wall in question for which the plaintiff has no right to raise any objection.
(5) On the basis of the pleadings of the parties, the following three Issues were framed:
(1) ??? ??? ???? ?? ?? ?? 1 ??? ?????? ????? ?? ????? ?? ?? ????? ?? ?????? ????? ???? ????? ????? ? ?? ?? ????????? ????? ?? ??????????? ??? ?????? ??? ?? ???? ??????? ??????? ???? ????? ?? ? - ???? (2) ??? ??????? ????? ???? ????? ?????? ?? ????????? ? ????? ?? ?? ? - ????
(3) ?????? "
(6) In support of his case, the plaintiff examined himself as PW-1 and further got examined PW-2 Harlal, PW-3 Shyam Lal and PW-4 Gopesh Kumar. In documentary evidence, the plaintiff got exhibited Ex.1 and Ex.2. In support of their case, the defendants got examined Heera Lal as DW-1 and also submitted affidavits of DW-2 Natthu Ram and DW-3 Shivdutt. DW-2 Natthu Ram and DW-3 Shivdutt were not produced for cross-examination.
(7) After appreciating the evidence, the trial court came to the conclusion that the plaintiff has failed to prove Issue Nos. 1 and 2 and ultimately, the suit was dismissed on 3.4.2007. Against the judgment and decree of dismissal of the suit, dated 3.4.2007, the plaintiff filed regular first appeal which was dismissed on 3.8.2011.
(8) Submission of counsel for the plaintiff is that the courts below have wrongly dismissed the plaintiff's suit when there was sufficient evidence on record in favour of the plaintiff that he is the sole owner of the disputed wall.
(9) I have gone through the file of the second appeal and further considered the aforesaid submissions of counsel for the plaintiff.
(10) In the first appeal filed by the plaintiff challenging the judgment and decree dated 3.4.2007, there is a reference of compromise. Even if the case is examined independent of compromise then also, from the evidence on record, it is proved that the Wall in question is a joint Wall and the same has not been exclusively constructed by the plaintiff and the plaintiff has no right to use the same exclusively.
(11) The present case is of concurrent finding of fact arrived at after consideration of the evidence on record and both the courts below rightly decided Issues No.1 and 2 against the plaintiff. The questions raised by the plaintiff in this second appeal are not substantial questions of law and further, the same are not even the questions of law. No interference is called for by this Court in exercise of power u/s 100 CPC in this second appeal. The appeal is dismissed.
(Prem Shanker Asopa) J.
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