Rajasthan High Court - Jaipur
Rajendra Jaiswal Son Of Shri Ramprasad ... vs Amit Kumar S/O Trilok Kumar on 17 August, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.245/2020
Rajendra Jaiswal Son Of Shri Ramprasad Jaiswal, aged about 49
years, Resident Of Bhawani Mandi, District Jhalwar (Raj.)
----Defendant-Appellant
Versus
1. Amit Kumar S/o Trilok Kumar, Patel Honda Showroom,
Ram Nagar, Bhawani Mandi (Raj.)
2. Sunit Kumar Son Of Trilok Kumar, Patel Honda Showroom,
Ram Nagar, Bhawani Mandi (Raj)
----Plaintiff-Respondents
For Appellant(s) : Mr. Amitabh Jatav
Mr. Jitesh Kumawat
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
17/08/2022
1. Appellant-defendant has preferred this second appeal under Section 100 CPC against judgment and decree dated 13.03.2020 passed in Civil First Appeal No.12/2019 by the Court of Additional District Judge, Bhawani Mandi District Jhalawar, affirming the judgment and decree dated 15.07.2019 passed in Civil Suit No.8/2007 by the Court of Civil Judge, Bhawani Mandi District Jhalawar whereby and whereunder civil suit for declaration and permanent injunction filed by respondents-plaintiffs has been decreed and following decree has been passed against appellant- defendant:-
"परिणामस्वरूप ्वादादीगण का ्वाद व्वरुद्ध प्रव्ध प्रति्वादादी स्वादीकाि वककार किया किया जाकि कार कियह घोषणा की किया जा्ध प्रतिादी है वक प्रव्ध प्रति्वादादी क मकान की पवपश्चिमादी दादी्वाि ्वादादी नद .(Downloaded on 25/12/2022 at 05:05:10 AM)
(2 of 7) [CSA-245/2020] 2 समवम्ध प्रति कममाि ्व प्रव्ध प्रति्वादादी की शामला्ध प्रतिादी है। प्रव्ध प्रति्वादादी को सोाकार कियादी वनषधाजा स पााबदद वककार किया किया जा्ध प्रतिा है वक ्वादग्रस्ध प्रति 5 फीट पैस किया ज मे कोई अव्ध प्रतिक्रमण नह नहीं कि ए्वद न हादी उस वकसादी ी भादी प्रकाि स अपन उपकार कियोग / उपी भोग म ल्व साो हादी ्वादग्रस्ध प्रति 5 फीट पैस किया ज क प्वू ् म वसो्ध प्रति प्रव्ध प्रति्वादादी क मकान की पवपश्चिमादी शामला्ध प्रतिादी दादी्वाि मे वं खिड़की दि्वा किया जा, उ किया जालदान, नालादी, मोहिादी नहादी िं खि ए्वद प्वू ् स हादी व्व्वावद्ध प्रति दादी्वाि मे वसो्ध प्रति वं खिडकी दि्वा किया ज, उ किया जालदान ाबदद कि्वान का ्वादादी नद 2 समवम्ध प्रति कममाि अवधकािादी है। ं खिर्ा् पक्षकािान अपना-अपना ्वहन किे ग ्ध प्रतिदनमसाि वडकी पर्ा् ममव्ध प्रति्ाब वककार किया किया जाकार किय।"
2. Heard counsel for appellant and perused the record.
3. It appears that the dispute between parties is in relation to a passage having width of 5 ft. and in relation to one wall. Respondent-plaintiffs claimed that the wall in question which is western wall of defendant's house is a common wall of plaintiffs and defendant and defendant has no right to open windows, gate and ventilators etc. in this common wall and his existing windows, gate and ventilators be ordered to be closed. Further, plaintiffs also claimed that the passage of 5 ft., situated in between houses of both parties is left for exclusive use for plaintiffs and attached with their purchased plot, hence, defendant be restrained not to make any encroachment on this passage as well as not to obstruct plaintiffs in their movement through this passage as also defendant be restrained not to open any windows, gate and ventilators etc. towards the passage in question. Defendant contested the claim of plaintiffs and contended that the passage in question is not personal passage of plaintiffs but it is a public lain and consequently, the claim of plaintiffs in relation to the common wall is also baseless as such plaintiffs' suit is liable to be dismissed.
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4. The trial court, having considered the respective claims of both parties, framed issues and recorded evidence. The trial court appreciated that plaintiffs and defendant both have purchased their plots/houses from one Gopi Kishan. Plaintiffs purchased their plot/houses from Gopi Kishan through sale deeds dated 03.06.1998 and 23.07.2001 (Exhibit-1). In the sale deeds of plaintiffs, Gopi Kishan has given exclusive right to use this passage to plaintiffs. Defendant has produced his sale deed dated 13.02.2007 through which he purchased his plot from Gopi Kishan. In the sale deed of defendant, this passage has neither been shown as public lain nor defendant has been given any right to use this passage. The sale deed of defendant is Exhibit-A1. On appreciation of title deeds of both parties, the trial court concluded that claim of plaintiffs to have a right to use the passage in question is proved by their sale deeds.
5. Per contra, the defence of defendant that this passage is a public lain is not corroborated with his sale deed. That apart, the defence of defendant, to allege the passage in question as a public lain, has not been proved by any other evidence. The report of Court Commissioner speaks against defendant. As far as notice (Exhibit-A3) issued by the Nagar Palika is concerned, the trial court has observed that this notice cannot be connected with the passage in question. Thus, the trial court has categorically observed that the passage in question is the personal lain of plaintiffs and defendant has no right to use the same and to open his windows, gate and ventilators towards this passage. Accordingly, the suit has been decreed vide judgment dated 15.07.2019.
6. Defendant preferred first appeal against judgment and decree dated 15.07.2019. The first appellate court, re-heard and (Downloaded on 25/12/2022 at 05:05:10 AM) (4 of 7) [CSA-245/2020] re-considered the entire issues and on re-appreciation of evidence of both parties, has concurred with fact findings recorded by the trial court. Subsequently, first appellate court has observed that in the sale deed of plaintiffs dated 03.06.1998 and 23.07.2001, the seller Gopi Kishan extended exclusive right to use the passage in question to plaintiffs and thereafter, Gopi Kishan has sold the plot to defendant through subsequent sale deed dated 13.02.2007. In the sale deed of defendant, no right has been given to defendant to use this passage. In this view of matter, the appellate court concurred with fact findings recorded by the trial court.
7. Both courts below have concurrently recorded a fact finding that the passage in question is not a public lain and defendant has no right to open his windows, gate and ventilators towards this passage in question. The wall in question has been found to be common. The fact findings recorded by both courts below are based on appreciation/re-appreciation of evidence. Learned counsel for appellant could not point out any perversity in the fact findings. It is settled proposition of law that unless and until the fact findings are not perverse or suffer from any misreading/non- reading of evidence or based on any inadmissible piece of evidence, the same are not required to be interfered at the stage of second appeal. The High Court while exercising its powers under Section 100 CPC, is not required to re-appreciate the evidence as a whole in order to draw the conclusion or other than drawn by two courts below.
8. The Hon'ble Supreme Court in umpteen number of cases has discussed the scope of High Court for interference in concurrent findings of the trial Court and first Appellate Court under Section 100 of CPC.
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9. The Supreme Court recently in case of Thulasidhara Vs. Narayanappa [(2019) 6 SCC 409] has held as under:-
"The jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. The question framed by the High Court in this case cannot be said to be a substantial question of law at all.
In the present case the trial Court as well as the first appellate court, gave cogent reasons on appreciation of evidence on record, including the partition deed and sale deeds and thereafter held that the plaintiff is not entitled to the declaration that he has become the owner of the land. While interfering with the judgment and decree passed by both the courts below, the High Court has again reappreciated the entire evidence on record, which in exercise of powers under Section 100 CPC, not permissible. Under the circumstances, the High Court has committed a grave/manifest error in quashing and setting aside the findings recorded by both the courts below, which were on appreciation of evidence on record. The High Court has exceeded in its jurisdiction while exercising the powers under Section 100 CPC. Even otherwise, on merits also, the impugned judgment and order passed by the High Court allowing the appeal and consequently decreeing the suit, is not sustainable."
10. In another judgment of Gurnam Singh Vs. Lehna Singh [(2019) 7 SCC 641] has held as under:-
"Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and (Downloaded on 25/12/2022 at 05:05:10 AM) (6 of 7) [CSA-245/2020] even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law."
11. The Hon'ble Supreme Court in C.Doddanarayana Reddy Vs. C.Jayarama Reddy [(2020) 4 SCC 659], while discussing the jurisdiction of the High Court to interfere with the finding of fact under Section 100 CPC has held that though the High Court could have taken different view acting as the trial Court but once, two Courts below have returned finding which is not based upon any misreading of material documents, nor against any provision of law neither could it be said that any judge acting judicially and reasonably could have reach such findings, then, the Court cannot be said to have erred. Relying upon the previous judgment the Supreme Court has held as under:-
"Recently in another judgment reported as State of Rajasthan v. Shiv Dayal, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors.(Downloaded on 25/12/2022 at 05:05:10 AM)
(7 of 7) [CSA-245/2020] vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."
12. The upshot of discussion is that the instant second appeal is not liable to succeed and same deserves to be dismissed and hereby dismissed. There is no order as to costs.
13. All pending application(s), if any, also stand disposed of.
(SUDESH BANSAL),J SAURABH/13 (Downloaded on 25/12/2022 at 05:05:10 AM) Powered by TCPDF (www.tcpdf.org)