Rajasthan High Court - Jaipur
Baldev S/O Shri Chhutan Lal vs Madan Lal S/O Shri Chhutan Lal on 26 August, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 45/2019
Baldev S/o Shri Chhutan Lal
----Appellant
Versus
Madan Lal S/o Shri Chhutan Lal
----Respondent
For Appellant(s) : Mr. Umesh Vyas
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
26/08/2022
1. Appellant-plaintiff has preferred this second appeal under Section 100 of Civil Procedure Code, assailing the judgment and decree dated 22.11.2018 passed by Additional District Judge No.2, Bandikui, District Dausa in Civil Appeal No.43/2018, affirming the judgment and decree dated 30.10.2013 passed by Civil Judge (Senior Division) Sikrai, District Dausa in Civil Suit No.21/2013 (40/09) whereby suit for permanent injunction filed by appellant- plaintiff, has been dismissed.
2. Counsel for appellant submits that the dispute is in relation to removing the encroachment made by respondent-defendant in the way having width of 30 feet. Counsel for appellant submits that with regard to the way in question, both parties entered into compromise dated 20.7.2001 before the Gram Panchayat and as per compromise, it was agreed between both parties that whatever encroachment is situated in the way in question shall be removed and way having width of 30 feet would be maintained. (Downloaded on 25/12/2022 at 06:03:13 AM)
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3. Counsel for appellant submits that this compromise dated 20.7.2001 could not be produced before the trial Court, however, same was produced before the first Appellate Court along with application under Order 41 Rule 27 CPC. The first Appellate Court committed illegality and jurisdictional error in dismissing the application under Order 41 Rule 27 CPC and consequentially has dismissed the first appeal also vide judgment impugned dated 22.11.2018. Counsel for appellant submits that the document of compromise dated 20.7.2001 is an admitted document between parties and same is relevant to the issue involved between parties, therefore, the first Appellate Court, allowed the application under Order 41 Rule 27 CPC and have considered the document of compromise.
4. Reliance has been placed upon the judgment of Supreme Court in case of Wadi Vs. Amilal & Ors. [2015 (1) SCC 677] where the Supreme Court has propounded that if the document sought to be produced by way of additional evidence, throw light on the germane issue and is relevant and necessary for pronouncing the judgment, same can be taken on record.
5. Heard.
6. Second appeal requires to be heard on following substantial question of law:-
"Whether the first Appellate Court committed illegality and jurisdiction error in dismissing the application under Order 41 Rule 27 CPC and not considering the admitted document of compromise dated 20.7.2001 between parties. In order to maintain the width of way in question as 30 feet and the judgment of first Appellate Court stands contrary to the judgment of Wadi Vs. Amilal (supra)?"(Downloaded on 25/12/2022 at 06:03:13 AM)
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7. Admit.
8. Issue notice to respondents.
9. Record of both Courts below be summoned.
10. In the meanwhile, both parties shall maintain status quo in relation to the way in question as it exists today.
(SUDESH BANSAL),J NITIN /5 (Downloaded on 25/12/2022 at 06:03:13 AM) Powered by TCPDF (www.tcpdf.org)