Rajasthan High Court - Jaipur
Radhe Shyam Son Of Shri Kanhaiyalal vs Shri Kesar Devi on 11 October, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 104/1988
1. Radheshyam Son of Shri Kanhaiyalal
2. Om Prakash (Since deceased)
2/1. Smt. Munni Devi Wd/o Late Shri Om Prakash
2/2. Deepak S/o Late Shri Om Prakash
2/3. Kamlesh S/o Late Shri Om Prakash
2/4. Jyoti D/o Late Shri Om Prakash
All Resident of Khatushyamji, Tehsil Dantaramgarh, District
Sikar
3. Gajanand son of Shri Shishpal (Since deceased)
3/1. Smt. Magan Devi Wd/o Late Shri Gajanand
3/2. Hari Shankar
3/3. Bhavani Shankar
3/4. Vasudev
3/5. Raj Kumar
All sons of Late Shri Gajanand
4. Devi Dutt son of Shri Laduram (since deceased)-
4/1. Smt. Jadav Devi wd/o Late Shri Devi Dutt
4/2. Shri Sushil Kumar Sharma (since deceased)
4/2/1. Smt. Radha Devi Wd/o Late Shri Sushil Kumar
4/2/2. Shri Mahesh Kumar S/o Late Shri Sushil Kumar
4/2/3. Shri Dinesh Kumar s/o Late Shri Sushil Kumar
4/2/4. Madhu Devi d/o Late Shri Sushil Kumar
4/3. Shri Sunil Kumar Sharma
4/4. Shri Anil Kumar Sharma
All sons of Late Shri Devi Dutt
4/5. Smt. Pushpa Devi
4/6. Smt. Banarasi Devi
4/7. Smt. Lalita Devi
4/8. Smt. Neeta Devi
All daughters of Shri Devi Dutt and all residents of
Khatushyamji, Teh. Dantaramgarh, District Sikar
5. Govind Ram (since deceased)
5/1. Madanlal Sharma son of Late Shri Govind Ram residents
of Khatushyamji, Tehsil Dantaramgarh, District Sikar
6. Khuda Bux son Shri Nabab Teli Since deceased (Legal Heirs
impleaded as Respondents No.7 to 9)
All residents of Khatushyamji, Tehsil Dantaramgarh, District Sikar
7. Radhey Shyam son of Shri Banwarilal Sharma (since deceased) 7/1. Smt. Bhagwati Devi wd/o Late Shri Radheshyam 7/2. Naresh Sharma son of Late Shri Radheshyam All residents of Khatushyamji, Tehsil Dantaramgarh District Sikar.
----Appellants Versus
1. Shri Keshar Dev (since deceased)-
1/1. Smt. Durga Devi Wd/o Late Shri Keshar Dev
1/2. Rajendra Kumar Sharma
1/3. Sohanlal Sharma
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1/4. Gordhanlal Sharma
1/5. Sharvan Kumar Sharma
All sons of Late Shri Keshar Dev and residents of Khatushyamji, Teh. Dantaramgarh, District Sikar 1/6. Smt. Hem Lata w/o Shri Chittaranjan Lal Sharma, R/o Village & Pest- Hashpur, Tehsil Srimadhopur, District Sikar 1/7. Smt. Gayatri Devi w/o Shri Sarat Kumar Joshi r/o Chawani Bazar Jhunjhunu, District Jhunjhunu
2. Govind Ram son of Shri Soji Ram Jat
3. Satyanarainn son of Shri Sanwar Ram Sharma
4. Deepu Ram son of Shri Khemaram Jat Names of both the respondents Satyanarain & Deeparam struck off.
5. Jhuntha Ram (since deceased) s/o Shri Gadu Ram Meena-
5/1. Smt. Sakari D/o Late Shri Jhuntha Ram 5/2. Shri Ram Swaroop adopted son of Shri Jhuntha Ram All residents of Khatushyamji, Teh. Dantaramgarh, District Sikar
6. Mali Ram son of Gadu Ram Meena (since deceased)-
6/1. Shri Ram Ratan 6/2. Shri Babulal (deceased) 6/2/1. Shanti Devi Mother of Deceased Babu Lal as already on record as Respondent No.6/6 6/2/2. Supayar d/o Shri Babu Lal 6/2/3. Pawan Meena s/o Shri Babu lal 6/2/4. Jitendra S/o Shri Babu lal 6/3. Shri Ashok Kumar 6/4. Shri Narendra 6/5. Shri Mukesh All sons of Late Shri Mali Ram r/o Khatushyamji, Sikar 6/6. Smt. Shanti Devi Wd/o Late Shri Mali Ram r/o Khatushyamji, sikar 6/7. Smt. Supriya w/o Shri Mange, r/o Kota, District Jaipur 6/8. Smt. Narbada Devi w/o Shri Ramesh, r/o Kota District Jaipur
7. Smt. Achuki Teli w/o Late Shri Khuda Bux
8. Shri Hazari Kha Teli S/o Late Shri Khuda Bux
9. Shri Babu Kha Teli S/o Late Shri Khuda Bux All residents of House NO.95, Mohalla Teliyan, Memawat Wali Gali, Khatu Shyamji, District Sikar
----Respondents For Appellant(s) : Mr. J.P. Goyal Sr. Advocate assisted by Ms. Jyoti Swami Mr. R.P Agarwal For Respondent(s) : Mr. M.M. Ranjan Sr. Advocate assisted by Mr. Daulat Sharma and Mr. Hemendra Sharma (Downloaded on 11/10/2022 at 08:46:45 PM) (3 of 38) [CSA-104/1988] HON'BLE MR. JUSTICE SUDESH BANSAL Judgment RESERVED ON: 01/09/2022 PRONOUNCED ON: October 11th,2022 REPORTABLE
1. The instant second appeal under Section 100 of Code of Civil Procedure arises out of a Civil Suit for permanent injunction bearing No.39/1976 (198/1980) titled Keshar Dev and Ors. Vs. Radheshyam and Ors., which was dismissed by the Munsif and Judicial Magistrate, Dantaramgarh, District Sikar vide judgment and decree dated 21.12.1981, but on filing Civil First Appeal thereagainst bearing No.7/1982 (33/1985), before the Court of Additional District Judge, Sikar, the same has been allowed vide judgment and decree dated 13.05.1988 and whereunder while setting aside the judgment and decree dated 21.12.1981, the civil suit filed by respondents-plaintiffs has been decreed in following terms:-
"उक्त व वि वििचन कि प्रकप्रकाश मा अं अपें अपीअपीलप्रकाीलारपीलार्थीगण कथीगण की अं अपें अपीअपील व विरुद्ध प्रिरुद्ध प्रतवप्रकाीलारपीलार्थीगण -प्रवप्रति विप्रकावादें अपीगण मव वादननं नवप्रकावप्रकाअपीलव कप्रका खचप्रका् कि स विें अपीकप्रकार कथीगण की जप्रकाप्रतिें अपी ही ए वि एवं व वििदप्रकान व विचप्रकारण नवप्रकावप्रकाअपीलव कप्रका चननतप्रतिें अपीग्रसप्रति वनण् व वि वव डििकथीगण की ववादनप्रका एवंक २१.१२.१९८१ अं अपप्रकासप्रति वकवप्रका जप्रकाप्रतिप्रका ही ए वि एवं विप्रकावादें अपीगण कप्रका विप्रकावाद व विरुद्ध प्रवप्रति विप्रकावादें अपीगण -प्रिरुद्ध प्रतवप्रकाीलारपीलार्थी सीलारप्रकावें अपी वनषिनिषेधप्रकाषेधाजप्रका हिप्रतिन इस प्रकप्रकार वव डििकथीगण की वकवप्रका जप्रकाप्रतिप्रका ही वक प्रवप्रति विप्रकावादें अपीगण व वि विप्रकाववादप्रति आम रप्रकासप्रतिप्रका कथीगण की भवम जन विप्रकावाद कि सअपील सलगन मप्रकानवचत्र मा अपीलप्रकाअपील र एवंग सि अ एवंवकप्रति वकवप्रका गवप्रका ही, ं अपर वकसें अपी प्रकप्रकार कप्रका कनई वनमप्रका्ण कप्रकाव् नहहीं करि प्रतिीलारप्रका रप्रकासप्रतिि कथीगण की भवम ं अपर अवप्रतििकमण नहें अपी करि न हें अपी कनई आ विप्रकागमन मा में बप्रकानिषेधप्रका व डिप्रकाअपीला, सप्रका वि् जवनक चतक वि रप्रकासप्रतिप्रका कन खनअपीलप्रका रखा ।"
2. The Coordinate Bench of this Court, vide Order dated 23.03.1993 framed following substantial question of law for consideration in the present second appeal:
"Whether the finding of learned first appellate court that the land sold to appellants was a part of the public way/chowk of the village is perverse?"
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(4 of 38) [CSA-104/1988] 3. In order to consider and decide the aforementioned
substantial question of law, the seminal facts of the present case as culled out from record are required to be noticed as under:
3.1 Initially, a Civil Suit for permanent injunction was filed on 06.04.1976 by four persons (respondents No.1 to 4 herein) against seven defendants (appellants No.1 to 7 herein), stating inter alia that at Village Khatushyamji, there is a public Dharmshala for pilgrims to stay. In front of the dharmashala, there is a public way and chowk, which is about 55ft in width and thereafter, opposite side guaris and badas of Jhuntha Ram and Mali Ram are situated as also adjacent thereto, guaris of other persons are also situated and gates of guaris and badas open on the public way. It was stated that in between the public dharmshala and guaris & badas of Juntha Ram and Mali Ram as also of other persons, there is a public way from Khatu Ringas to Khatu Dantaramgarh, which is the main road of village. It was stated that defendants, in collusion with the Gram Panchayat, Khatushyamji are trying to raise illegal and unauthorized construction over the land of public way and chowk and if such constructions are allowed to be made, same would obstruct public transport and would narrow the public way. Therefore, plaintiffs jointly made a prayer for permanent injunction against defendants, to not obstruct over the land of public way and not to make any construction on any part of the public way. 3.2 After institution of the civil suit, two persons Jhuntha Ram and Mali Ram also joined as plaintiffs No.5 & 6 and Gram (Downloaded on 11/10/2022 at 08:46:45 PM) (5 of 38) [CSA-104/1988] Panchayat, Khatushyamji was also added as defendant No.8 and accordingly, amended plaint was filed on 17.01.1977. 3.3 Thereafter, plaint was got amended by addition of Para No. 4(क) to the effect that the Gram Panchayat, Khatushyamji sold part of the public way in form of different plots to defendants No.1 to 7 in an improper, unauthorized and illegal manner and executed separate seven sale deeds/pattas in their favour. The Gram Panchayat, Khatushyamji, is bound to keep the public way unobstructed and it is not authorized to sell land of the public way, therefore, sale deeds or pattas executed in favour of defendants No.1 to 7 are void ab initio & ineffective and on the basis of such sale deeds/pattas, defendants No.1 to 7 did not acquire any rights over the land of public way.
Note: It may be worthy to notice here that while seeking amendment in the plaint, no prayer was added for seeking declaration of such seven sale deeds/pattas of Gram Panchayat, Khatushyamji issued in favour of defendants No.1 to 7 as illegal, null and void. (This is important to notice here for the reason that after discussion of facts and evidence in latter part of the judgment, it would transpire that the challenge to pattas of defendants at the behest of plaintiffs No.5 and 6 has already been failed before the Court of Additional Collector, Sikar, vide judgment dated 12.03.1976 & District Collector, Sikar, vide judgment dated 20.04.1976. All sale deeds/pattas have been found to be issued by way of conducting public auction, after following the due process of law and were valid, therefore, prayer for seeking declaration of these sale deeds/pattas as null and void has become barred by limitation of three years on the date of filing the amended plaint on 13.11.1981. Therefore, plaintiffs are not bona fide in pursuing civil suit for permanent injunction before the civil court while hiding their failure before the Court of Additional Collector and further challenging pattas, before the civil court, (Downloaded on 11/10/2022 at 08:46:45 PM) (6 of 38) [CSA-104/1988] after expiry of the period of limitation of three years to declare these sale deeds/pattas as null and void.) 3.4 Defendants No.1 to 7, in their joint and separate written statements, contended that in front of dharmshala, after leaving a 20ft open space, there is a public way of 30ft wide and thereafter, the land in question, which has been sold by the Gram Panchayat, Khatushyamji to defendants, is situated and then towards the south side thereof, bada of Jhuntha Ram is situated, which has its opening towards the western side, similarly guari of Mali Ram is situated thereafter and which has its opening towards west and south. It was categorically denied that gates of guaris and badas of Jhuntha Ram and Mali Ram have any opening towards northern side on the main public Road of Khatu Ringas. Defendants categorically contended that the land in question sold by Gram Panchayat, Khatushyamji to them through public auction and for which pattas have been issued by the Gram Panchayat in their favour, is not a land of public way. The land in question, allotted to defendants No.1 to 7 is wholly different from the land of public way and situated towards southern side of the public way. Defendants have purchased their lands from Gram Panchayat, Khatushyamji in auction and have obtained possession thereof and by raising construction of shops on their purchased land, the width of public way of 30ft wide remains intact. Plaintiffs have made out a wholly false case, creating a concocted story that the part of land of the public way has been sold to defendants, therefore, the civil suit for permanent injunction is liable to be dismissed. (Downloaded on 11/10/2022 at 08:46:45 PM)
(7 of 38) [CSA-104/1988] It was also contended that plaintiff No.5-Jhuntha Ram and plaintiff No.6-Mali Ram challenged pattas of defendants, by way of filing two separate revision petitions before the Court of Additional Collector/District Collector, Sikar. Revision petition, filed by plaintiff No.5-Jhunta, has been dismissed as withdrawn, accepting the pattas of defendants as valid, vide Order dated 12.03.1976. The revision petition filed by plaintiff No.6-Mali Ram has been dismissed on merits vide Order dated 20.04.1976 and pattas of defendants have been found to be issued in accordance with law. Indeed, plaintiffs No.5 and 6 have their separate entrance to their guaris and badas from west side and have no entrance/gate towards the land allotted to defendants No.1 to 7. It was stated that plaintiffs No.1 to 4 have no house or land nearby the land sold to defendants and have no locus standi to file the present civil suit. Plaintiffs have filed the present civil suit maliciously with ulterior motive, which is liable to be dismissed with costs. 3.5 It is worthy to notice that the learned Presiding Officer of the trial court, himself visited the disputed site twice. First site inspection report with map is noted by the Presiding Officer in order-sheet dated 29.05.1976 (in the file of temporary injunction bearing No.22/1976) and second site inspection report of the another Presiding Officer, dated 09.11.1980, is also available in the file of original civil suit. In both site inspection reports, the main public road of Khatu Ringus Road, having 30ft width is found available at site and the land in question, allotted to defendants is different from the public road and is situated on southern side, after leaving the 30ft wide road intact.
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(8 of 38) [CSA-104/1988] 3.6 Learned trial court, after framing issues and recording evidence of both parties, decided Issues No.1 & 3 against plaintiffs and after appreciation of entire evidence of both parties, coupled with the site inspection reports of presiding officer, recorded findings of fact that lands in question, allotted by the Gram Panchayat, Khatushyamji to defendants No.1 to 7 is not part of the public way and further 30ft wide public way is available at site, which remains unaffected by such allotment of land in question. The land sold out by the Gram Panchayat to defendants (through pattas Ex-A1 to A7) is situated towards southern side of the public way and that land is neither part of the public way nor such allotment obstructs the public way in any manner. The trial court also observed that plaintiffs miserably failed to prove the width of the public way/chowk as 55ft wide in front of the dharmshala and since the land allotted to defendants is neither part of any public way nor of any chowk, plaintiffs have no locus standi/right regarding land in question allotted to defendants. It was observed that plaintiff No.5-Jhuntha Ram and plaintiff No.6-Mali Ram have falsely stated that their gates/entrance of guaris and badas would be obstructed, if defendants are allowed to raise construction on land allotted to them, rather the entrance to guaris of Jhuntha Ram and Mali Ram is from the western side and not through the land in question on northern side. With such fact findings, the trial court dismissed the plaintiffs' suit on merits vide judgment and decree dated 21.12.1981.
3.7 On filing first appeal, the learned Additional District Judge, Sikar vide impugned judgment and decree dated 13.05.1988, reversed the finding and judgment of the trial court by giving its (Downloaded on 11/10/2022 at 08:46:45 PM) (9 of 38) [CSA-104/1988] own observations and reasoning, decreed the plaintiffs' suit. The first appellate court, vide judgment and decree dated 13.05.1988, has treated the land in question allotted to defendants No.1 to 7- appellants by the Gram Panchayat, Khatushyamji as part of the public way and thereby has directed defendants-appellants not to raise any construction and further not to make any trespass over the public way as well as not to cause any obstruction in movement on public way as also to keep the public way and chowk open. This judgment and decree of the first appellate court dated 13.05.1988 has been challenged by defendants-appellants by way of filing the instant second appeal.
4. Learned Senior Counsel, Mr. J P Goyal, appearing for and on behalf of defendants-appellants has argued that the first appellate court committed grave perversity in treating lands allotted to defendants by the Gram Pachayat, Khatushyamji, as a part of public way and thereby directing defendants not to raise construction on the land allotted to them. He submitted that according to the evidence available on record, learned trial court, has rightly concluded that the land in question allotted to defendants is not part of the public way, rather the public way of 30ft wide remained intact and available at site. The land allotted to defendants are situated southern side after leaving 30ft wide public way and the allotted land to defendants, neither obstructs the public way nor movement on the public way. The first appellate court has drawn an erroneous presumption contrary to the evidence on record and findings of the trial court just being swayed by religious sentiments. Learned counsel for appellants- defendants submitted that fundamentally plaintiffs instituted the (Downloaded on 11/10/2022 at 08:46:45 PM) (10 of 38) [CSA-104/1988] present civil suit for permanent injunction, claiming that defendants are inclined to raise construction, encroaching upon the land of public way and chowk, in front of the dharmshala. Whereas, it has come on record that the width of public road in front of the dharmshala is 30ft wide, that too after leaving 20ft wide open space in front of the dharmshala, 20ft open space situated in front of dharmshala has already been allotted by Gram Panchayat to dharmshala. Plaintiffs' case that width of the public road and chowk is 55ft wide in front of dharmshala, is not proved by any evidence and land allotted to defendants is situated, after leaving 20ft wide open space in front of the dharmshala, then after, leaving 30ft wide public way towards southern side. Further by allotment of land in question to defendants, the entrance of guaris and badas of plaintiffs No.5 and 6 Jhuntha Ram and Mali Ram also do not obstruct in any manner, as gates/entrance of their guaris and badas are from western side and the challenge to pattas of defendants, by plaintiff No.5 has already been dismissed as withdrawn and the challenge by plaintiff No.6 has already been dismissed on merits, wherein the issuance of pattas to defendants-appellants has been held valid and in accordance with law, therefore, the trial court rightly dismissed the civil suit for permanent injunction, which was mainly pursued by plaintiffs No.5 and 6 only, in a malicious manner. But the first appellate court has committed perversity and jurisdictional error in reversing the fact finding and decree of the trial court and has decreed the plaintiffs' suit under an erroneous assumption and pretext. According to appellants-defendants, observations and findings of the first appellate court to treat the land sold/allotted by the Gram (Downloaded on 11/10/2022 at 08:46:45 PM) (11 of 38) [CSA-104/1988] Panchayat, Khatushyamji to defendants is a part of public way/chowk, are wholly perverse and based on no evidence, as such the judgment and decree dated 13.05.1988 passed by the first appellate court is unsustainable in the eye of law and liable to be quashed, so as to restore the judgment and decree of the trial court dated 21.12.1981, affirming the dismissal of the civil suit for permanent injunction filed by respondents-plaintiffs.
5. Per contra, learned senior counsel, Mr. M M Ranjan, appearing for and on behalf of respondents-plaintiffs, has supported the impugned judgment dated 13.05.1988 and submitted that findings of the first appellate court are not perverse in any manner, therefore, are not required to be interfered with by the High Court while exercising its jurisdiction under Section 100 CPC and therefore, the instant second appeal is liable to be dismissed.
6. This Court, first would like to consider the scope and jurisdiction of the High Court while exercising its jurisdiction under Section 100 CPC, to interfere with the finding of the first appellate court, when recorded after reversal of fact findings of the trial court.
7. It is well settled law as laid down by the Hon'ble Supreme Court in catena of judgments that the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC after the 1976 amendment, is confined only when the second appeal involves substantial question of law. The existence of "Substantial Question of Law" is sine quo non for exercise of the jurisdiction by the High Court under Section 100 CPC. The High Court while deciding the second appeal under Section 100 CPC, cannot and (Downloaded on 11/10/2022 at 08:46:45 PM) (12 of 38) [CSA-104/1988] should not act like a first appellate court and re-appreciation of entire evidence is not permissible just to draw a different conclusion, other then the courts below, unless conclusion of lower court is not perverse & dehors to the settled proposition of law.
8. In a recent judgment of Hon'ble Supreme Court, delivered in case of Gurnam Singh Vs. Lehna Singh [(2019) 7 SCC 641], while placing reliance upon a celebrated judgment of Hon'ble the Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722], it was held: "In a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
Or
(ii) Contrary to the law as pronounced by the Supreme Court;
Or
(iii) Based on inadmissible evidence or no evidence.
It was further observed by the Hon'ble Supreme Court in case of Kondiba Dagadu Kadam (Supra) that 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. It was further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.
9. In case of Santosh Hazari Vs. Purushottam Tiwari [(2001) 3 SCC 179], the Honb'le Supreme Court discussed the jurisdiction of the first appellate court to reverse or affirm findings (Downloaded on 11/10/2022 at 08:46:45 PM) (13 of 38) [CSA-104/1988] of the trial court. It was observed that first appeal is a valuable right of parties and unless restricted by law, the whole case therein is open for rehearing both on questions of fact and law. It was held that the task of the first appellate court is an easier one, while affirming the finding of the trial court as in that situation, when the first appellate court agreeing with the facts of the trial court, is not required to restate the effect of evidence or reiterate the reasons given by the trial court and expression of general agreement by the first appellate court with reasons given by the trial court, would ordinarily be suffice, but while writing a judgment of reversal, the first appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasoning for arriving at different finding.
The Hon'ble Supreme Court in clear words has observed that the first appellate court continues, as before, to be a final court of fact, however, the first appellate courts are under the additional obligation, while reversing the finding of trial court to give its conscious application of mind to the reasoning assigned by the trial court and then to assign its own reasoning, for arriving at different findings. This additional obligation casts upon the first appellate court, while reversing the finding of trial court, is necessary under the scheme of the present Section 100 (Downloaded on 11/10/2022 at 08:46:45 PM) (14 of 38) [CSA-104/1988] substituted in the Code, to satisfy the court of appeal, hearing a further appeal that the first appellate court had discharged its duty as expected from it.
10. It may be noticed here that the principle of law as enunciated by the Hon'ble Supreme Court in case of Santosh Hazari (Supra) in respect of casting a duty/obligation on the first appellate court, more particularly, while reversing the fact findings of the trial court, has time and again be followed in umpteen number of judgments by the Hon'ble Supreme Court. It is also worthy to note here that learned counsel for respondents has also placed reliance on this judgment in the present second appeal.
11. The Hon'ble Supreme Court in case of Damodar Lal Vs. Sohan Devi [(2016) 3 SCC 78], while dealing with the case of concurrent findings of courts below on the issue of material alteration in the tenanted property and while examining the concept of "Perversity", observed that the wrong finding of courts below should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's on interference on the facts. To him, if the conclusion on the facts and evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. The Hon'ble Supreme Court, in this case placed reliance on its previous judgment delivered in case of Kulwant Kaur Vs. Gurdial Singh Mann [(2001) 4 SCC 262], where in Para No.13, it was held as under:
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(15 of 38) [CSA-104/1988] "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact --In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100.' The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law.
We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
12. Learned counsel for appellants-defendants has placed reliance on the judgment of the Hon'ble Supreme Court in (Downloaded on 11/10/2022 at 08:46:45 PM) (16 of 38) [CSA-104/1988] Sebastiao Luis Fernades Vs. K.V.P Shastri [(2013) 15 SCC 161], wherein the Supreme Court affirmed the interference by the High Court with concurrent findings of the trial court and the first appellate court, where findings of fact are perverse and based on wrong assumptions of fact, non-appreciation of pleadings and evidence on record as also by wrong placement of burden to prove. The Supreme Court, referred to relevant portion of Para 8 of the judgment delivered in Hira Lal Vs. Gajjan [(1990) 3 SCC 285]:-
"8....If in dealing with a question of fact that the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure. When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision...."
The Hon'ble Supreme Court also reiterated principles relating to Section 100 CPC, which were summarized in Para 24 of the judgment in Hero Vinoth Vs. Seshammal [(2006) 5 SCC 545], which is extracted as under:
"24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a (Downloaded on 11/10/2022 at 08:46:45 PM) (17 of 38) [CSA-104/1988] principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously;
or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
13. The scope of interference with the finding of fact is well settled, as discussed by the Hon'ble Supreme Court in recent judgment in State of Rajasthan Vs. Shiv Dayal [(2019) 8 SCC 637]:
"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 dehors the pleadings or it was based on no evidence or it was based on misreading of (Downloaded on 11/10/2022 at 08:46:45 PM) (18 of 38) [CSA-104/1988] 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 vs. Dashrath Narayan Chilwelkar [AIR (1943) Nag 117] Para 43)."
14. The Hon'ble Supreme Court recently in case of C Doddanarayanan Reddy Vs. C Jayarama Reddy [(2020) 4 SCC 659], after pondering over principles as expounded in case of Kondiba Dagadu Kadam (Supra), Santosh Hazari (Supra) and Shiv Dayal (Supra), observed that the High Court cannot be said to have erred in interfering with findings of fact, may be concurrent or reversal, if findings by the court below have been recorded on the basis of misreading of material documents or recorded against any provision of law and where any judge acting judicially and reasonably could not have reached such a finding.
15. Keeping in mind the scope and jurisdiction of the High Court to consider the perversity in findings of the first appellate court, while exercising its jurisdiction under Section 100 of CPC, now focus is on the substantial question of law, mentioned hereinabove and which falls for consideration in the present second appeal.
16. Having considered the fact findings recorded by the trial court in its judgment and decree dated 21.12.1981 and findings of reversal as recorded by the first appellate court in the impugned judgment and decree dated 13.05.1988, more particularly, in respect of reaching to a conclusion by first appellate court that the land sold by the Gram Panchayat, Khatushyamji, to defendants, is part of a public way/chowk, and therefore, decreed the civil suit for permanent injunction against defendants-appellants, this Court (Downloaded on 11/10/2022 at 08:46:45 PM) (19 of 38) [CSA-104/1988] observed following flaws/perversity/illegality and jurisdictional error on the part of the first appellate court, while passing the judgment and decree dated 13.05.1988:
(i). First Appellate Court relied upon the oral evidence of PW-1 (Jhuntha Ram-plaintiff No.5) and PW-2(Mali Ram-
Plaintiff No.6) to observe that land in question allotted to defendants is part of the public way and if shops are allowed to be constructed by defendants on their respective plots, the width of the public way would be squeezed and narrowed down. The first appellate court ignored admission of plaintiffs No.5 & 6 (PW-1 & PW-2), which were noticed by the trial court that main gate/entrance of their guaris and badas is from western side and not from northern side towards the main Khatu Ringas Road, where plots have been allotted to defendants No.1 to 7 by the Gram Panchayat.
(ii) The first appellate court neither considered the evidence of PW-1 and PW-2 as a whole, nor considered that their evidence is wholly contradictory to their basic grievances which are personal in nature. In fact, from contentions of plaintiffs No.5 & 6, as available on record, it stands clear that virtually they claimed their personal grievances against the allotment of land in question to defendants No.1 to 7, alleging inter alia that the land in question is used by them for their own purposes. Learned trial court has rightly noticed the background of the impleadment of plaintiffs No.5 & 6 to the present civil suit for permanent injunction. (Downloaded on 11/10/2022 at 08:46:45 PM)
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(iii) The first appellate court has skipped to notice all such factual matrix which is apparent from the record that in fact, initially the present suit for permanent injunction was instituted by plaintiffs No.1 to 4, claiming a case that defendants No.1 to 7 are trying to raise construction encroaching upon the public way/chowk, situated in front of the public dharmshala. None of plaintiffs, out of plaintiffs No.1 to 4 have appeared as witness to prove pleadings of plaint to the effect that the width of public road, in front of the public dharmshala, is 55ft wide. Later on, plaintiff No.1 Keshar Dev withdrew himself from the present civil suit seeking deletion of his name by moving an application dated 15.05.1981 and the trial court allowed the application. Plaintiffs No.5 & 6, Jhuntha Ram and Mali Ram, joined the plaint, by way of moving an application under Order 1 Rule 10 CPC. In their application, plaintiffs No. 5 & 6 never claimed the land allotted to defendants as part of public way, but their contention was that the gate of the guari of Jhuntha Ram opens towards northern side on the land of public way, and chowk where the Gram Panchayat, Khatushyamji allotted the land to defendants and this land is used by Jhuntha Ram for tethering his cattle. He used the portion of land in question on occasions of marriage, parties, death and sorrow. Similarly, Mali Ram (plaintiff No.6) contended that main gate of his nohra opens towards the northern side and he tie his cattle and put cattle-carts as well as use the land in question for light, air and water. It was contended in the application that this place is used for organizing the Mela of Nag Panchami. The application under (Downloaded on 11/10/2022 at 08:46:45 PM) (21 of 38) [CSA-104/1988] Order 1 Rule 10 CPC was allowed by the trial court and Jhuntha Ram and Mali ram came to be added as plaintiffs No.5 & 6 in the present civil suit.
(iv) Plaintiff No.5-Jhuntha Ram and Plaintiff No.6-Mali Ram, before their impleadment in the present civil suit, had challenged the allotment of land in question by the Gram Panchayat, Khatushyamji in favour of defendants, by way of filing revision petitions against Pattas issued in favour of defendants, before the Court of Additional Collector/District Collector, Sikar. The Revision Petition No.50/1975 filed by plaintiff No.5-Jhuntha Ram was dismissed as withdrawn vide Order dated 12.03.1976. The Revision Petition No.13/1976 filed by plaintiff No.6-Mali Ram was dismissed on merits by the Court of District Collector, Sikar (Exhibits A8 & A9). (V) In the Order dated 20.04.1976, passed by the District Collector, Sikar after hearing both parties, it was clearly held that land in question was sold by the Gram Panchayat to defendants in open auction and after following the due process of law. Public notices were issued and prescribed procedure was followed before conducting the public auction to sell the land in question. Thus, the allotment of land in question in favour of defendants was already held lawful and valid by the competent authority, it means by the District Collector after holding the inquiry and recording the evidence of both parties. The judgment dated 20.04.1976 passed by the District Collector had attained finality.
(vi) The allotment of land in question to defendants was again challenged in the present civil suit for permanent (Downloaded on 11/10/2022 at 08:46:45 PM) (22 of 38) [CSA-104/1988] injunction, by way of seeking addition of Para 4(क) and after allowing the application for amendment, the amended plaint was filed on 13.11.1981. According to which it was contended that the Gram Panchayat sold the part of public way to defendants No.1 to 7, in form of public plots, which is improper, unauthorized and illegal and Pattas/sale deeds issued by the Gram Panchayat are void ab initio and ineffective. Indeed, the challenge by plaintiffs No.5 & 6 to pattas issued by the Gram panchayat in respect of land in question in favour of defendants has already been decided by the District Collector in its judgment dated 20.04.1976, and after dismissal of the revision petitions of plaintiffs No.5 & 6, their evidence has no credential importance.
(vii) The first Appellate court has not noticed that plaintiffs nowhere sought a relief of declaration in the present civil suit, to declare the allotment of land in question in favour of defendants by way of public auction and by issuance of pattas as null and void, apparently for the reason that allotment letters/pattas were issued on 31.03.1973 (Exhibits A1 to A7) and to declare these pattas as null & void and limitation of 3 years has already expired at the time of filling the amended plaint on 13.11.1981, and prior to that, the revision petitions filed by plaintiffs No.5 & 6, were also dismissed respectively on 12.03.1976 and 20.04.1976. The first appellate court did not ponder over these material facts and evidence, before reversing the finding of Issue No.1 of the trial court.
(viii) The first appellate court failed to appreciate findings of the trial court in respect of issues No.1 & 3. The first appellate (Downloaded on 11/10/2022 at 08:46:45 PM) (23 of 38) [CSA-104/1988] court could not adhere to the fact that the evidence of plaintiffs No.5 & 6 (PW-1 & PW-2) is contrary to their foundational contentions. As highlighted hereinabove. Plaintiffs No.5 & 6, virtually claimed their personal grievances against the allotment of land in question to defendants, alleging that land in question is used by them for their own purposes. Therefore, the first appellate court committed perversity in placing reliance upon the evidence of PW-1 and PW-3, to assume the land in question allotted to defendants as part of public way/chowk, without adverting to the basic contentions of plaintiffs No.5 & 6 and other aspects of the matter as discussed hereinabove.
(ix) First appellate court committed perversity in picking one line statement out of the entire evidence of DW-3 Banshidhar, who happens to be the Sarpanch of Gram Panchayat, Sikar, to conclude that he admitted that land allotted to defendants is part of public way and chowk. On reading the evidence of DW.3 as a whole, it transpires that such admission is not a clear and an ambiguous admission whereas the trial court, after appreciation of the statement of DW-3 Banshidhar as a whole, has clearly held that the witness (DW-3) has deposed in his evidence that the width of public way is 30ft and land allotted to defendants by Gram Panchayat was the land of Gram Panchayat, which is different and other than the land of public way. Learned trial court, too dealt with the admission of DW-3 but after reading his whole evidence, coupled with other evidence on record adduced by plaintiffs and defendants. In fact, DW-3 Banshidhar nowhere admitted that the width of (Downloaded on 11/10/2022 at 08:46:45 PM) (24 of 38) [CSA-104/1988] public way/chowk, in front of the public dharmshala is 55ft wide, which is the basic case of plaintiffs in the plaint. In this context, learned trial court taking into account statements of PW-3 to PW-6 as also statements of DW-3, clearly observed that the width of public way, situated in front of public dharmshala, which is Khatu Ringas Road, is 30ft wide. There is no evidence on record from the side of plaintiffs to prove that in front of public dharmshala, width of public way/chowk is 55ft wide. Learned first appellate court, while picking single line statement of witness DW-3, Sarpanch of the Gram Panchayat, as an admission that allotment made to defendants No.1 to 7 is out of the land of public way and chowk, has not pondered over the other part of his evidene as also the other evidence of PW-5 Udaynarayan, who is the manager of public dharamshala. PW-5 admits that in front of dharmshala, there is 20ft wide open space and then, public road of 30ft wide from Khatu to Ringas is situated and then towards southern side, the land allotted by Gram Panchayat to defendants No.1 to 7, is situated. PW-5 admits that through the document (Ex-2), 20ft wide open space, situated in front of the public dharmshala, has already been allotted by Gram Panchayat to Dharmshala. No one has challenged such allotment(Ex-2). The trial court extended heed on this point that if width of public way/chowk, in front of public dharmshala would have been 55ft wide, there was no occasion to allot the open space of 20ft wide situated in front of public dharmshala to the dharmshala. That apart, all witnesses of plaintiffs (PW- 3, PW-4, PW-5 and PW-6) admit that the width of public road (Downloaded on 11/10/2022 at 08:46:45 PM) (25 of 38) [CSA-104/1988] Khatu-Ringas is 30ft wide and in whole Village Khatushyamji, there is no road of 55ft wide, rather somewhere the width of road is less than 30ft. As far as existence of any public chowk, in front of the public dharmshala, is not proved by any evidence and there is no iota of evidence available on record to this effect. Having considered all such oral and documentary evidence, the trial court held that it is not proved on record that in front of the public dharmshala, the width of pubic way/chowk is 55ft wide.
(x) Further, the trial court also took into consideration the site inspection reports dated 29.05.1976 & 09.11.1980, which have been brushed aside by the first appellate court, merely on the basis of admission of DW-3. It is the basic principle of law of evidence that person may tell lie but not circumstances. The two different Presiding Officers of the trial court, taking the issue of allegation of allotment of land of the public way/chowk by the Gram Panchayat to defendants No.1 to 7, themselves chose to inspect site so as to elucidate the actual controversy. In the site inspection report dated 29.05.1976, prepared by the Presiding Officer himself after inspection of the site, it is well clear that the land in question allotted by the Gram Panchayat to defendants No.1 to 7 is situated southern side, after leaving 30ft wide Khatu-Ringas Road. This inspection report of Presiding Officer is undisputed and has rightly been taken into account by the trial court but the first appellate court has brushed aside this report which is admissible peace of evidence. The second site inspection report dated 09.11.1980 was also prepared by another (Downloaded on 11/10/2022 at 08:46:45 PM) (26 of 38) [CSA-104/1988] Presiding Officer himself, after inspection of the site. In this inspection report of Presiding Officer, again the factual aspect is well clear that by allotment of land by the Gram Panchayat to defendants No.1 to 7, the width of public road from Khatu to Ringas and movement thereupon, remain unaffected. This report dated 09.11.1980 was also considered by the trial court which is an admissible peace of evidence, but has been overlooked and brushed aside by the first appellate court. Therefore, the approach of the first appellate court, may not be countenanced by this Court, to solely rely upon an admission of DW-3 that too without reading his evidence as a whole and further circumventing of other oral and documentary evidences on record, which too were considered by the trial court and thereafter the suit for permanent injunction was dismissed by the trial court with a clear fact finding that no part of public road/chowk has been allotted by the Gram Panchayat to defendants No.1 to 7 and therefore, plaintiffs have make out a false case against defendants.
(xi) The findings of trial court in respect of issues No.1 & 3 are well speaking and reasoned findings but the first appellate court, without assigning any reasoning to upset and reversed such fact findings of the trial court, observed that the open land laying beside the public road would be treated as part of public road placing relying on a piecemeal statement of DW-3 and reading documents (Exhibits. 3 & 4) partially as well as relied upon the judgment of Rajasthan High Court delivered in case of Firm Pyarelal Satpal Vs. Santlal [WLN (1971) Part I 543] Or [AIR (1972) RAJ 103].
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(xii). Findings of the first appellate court treating the allotment of land made by the Gram Panchayat to defendants No.1 to 7 from the land of public way/chowk can be said to be passed on the basis of surmises and conjectures. From the evidence of DW-3 and documents (Ex.3 & 4) it nowhere reveals that in front of public dharmshala, there is a land of 55ft wide of public way/chowk which is the basic case of plaintiffs in the present civil suit. All other evidence, oral or documentary, as discussed by the trial court while deciding issues No.1 and 3, have been ignored and overlooked by the first appellate court. The first appellate court, has assumed the admission of DW-3 as an absolute truth, which itself runs counter to documents (Ex. A1 to A7), which are pattas issued by DW-3,Sarpanch himself as also his such admission mismatched and not in coherence with other part of his evidence. Similarly, documents (Ex.3 & 4), one of which is allotment in favour of plaintiff No.5 and another is a gift deed in favour of plaintiff No.6, have also been read partially by the first appellate court, to draw an assumption that towards northern side of their guaris, a public way and chowk is situated. The first appellate court overlooked admissions of plaintiffs No.5 & 6 (PW-1 and PW-2) as they themselves admit that gate/entrance of their guaris and badas is from western side and not from northern side, where Gram Panchayat has allotted the plots to defendants No.1 to 7. Moreover, when the trial court has appreciated and discussed all these oral statements and documents, it is not expected from the first appellate court to reverse findings of the trial court by picking (Downloaded on 11/10/2022 at 08:46:45 PM) (28 of 38) [CSA-104/1988] a piecemeal evidence from the record and ignoring all other evidence on record. When the trial court has considered all the evidence, unless and until the same is found inadmissible, the first appellate court could not have ignored or brushed aside the same. As per proposition of law, the first appellate court, before drawing an inference or assumption of its own about treating the land allotted to defendants No.1 to 7 as public road and chowk, was required to assign reasons whatsoever to reverse and upset the fact finding of the trial court. The judgment of the first appellate court is silent on this aspect and thus stands vulnerable and contrary to the proposition of law as set out by the Hon'ble Supreme Court in case of Santosh Hazari (Supra).
(xiii). As far as judgment delivered in case of Firm Pyarelal Satpal (Supra), on which the first appellate court has placed reliance, is concerned, the principle of law does not apply to the present case. In that case, the issue under consideration was allotment of the few part of land in Dhanmandi Area of Gangapur Town on the sides of public and highway road having width of 50ft wide. The Single Bench of this Court, while placing reliance on the judgment of Hon'ble Supreme Court delivered in case of Muncipal Board, Manglaur Vs. Mahadeoji Maharaj [AIR (1965) SC 1147] held that the site lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road. Whereas in the present case, by way of present civil suit for permanent injunction, plaintiffs have claimed width of road up to 55ft wide, only in front of public dharmshala and not in respect of (Downloaded on 11/10/2022 at 08:46:45 PM) (29 of 38) [CSA-104/1988] the whole road of Khatu-Ringas. Undisputedly, the width of Khatu-Ringas Road is 30ft wide. The 20ft open space situated in front of dharmshala has already been allotted to the dharmshala. Thereafter, public road of Khatu-Ringas having width of 30ft wide is available and then towards southern side, land in question is situated. In fact, this is a case where it is not the width of public road having 30ft, is in question but plaintiffs claiming a public chowk in front of public dharmshala. As per evidence on record, the existence of public way/chowk is nowhere proved. The allotment of 20ft wide open space, abutting towards northern side of the public road of Khatu-Ringas to the dharmshala, is not in dispute as evident from the document (Exhibit-2). Therefore, on facts of present case, the open land laying towards the south side of main public road after leaving 20ft wide open space in front of dharmshala and then after leaving 30ft wide public road, cannot be treated as part of public road by applying ratio of law as enunciated in case of Firm Pyarelal Satpal (Supra). The first appellate court without adverting to facts and circumstances of the present case, has committed illegality and jurisdictional error in applying that law to the present case and has drawn a wrong assumption that the land allotted by the Gram panchayat to defendants No.1 to 7 be treated as part of the public road of Khatu-Ringas.
17. This Court finds that the first appellate court has recorded findings of fact on the basis of surmises and conjectures, instead of relying upon the substantive evidence as available on record and which was considered by the trial court and further the (Downloaded on 11/10/2022 at 08:46:45 PM) (30 of 38) [CSA-104/1988] admissible peace of evidence has been overlooked as much as no reasons have been assigned to reverse/upset the finding of the trial court, which were passed by the trial court after considering the whole evidence on record. In this view, the findings of first appellate court, while reversing findings of issues No.1 and 3, may be treated as perverse and contrary to the settled proposition of law.
18. First appellate court has not adverted to pleadings and evidence that it is admitted case of plaintiffs that in front of dharamshala, there is a 20ft wide open space and then 30ft road for the public way from Khatu Ringas to Dantaramgargh is situated. The open space of 20ft wide situated in front of dharamshala has already been allotted in favour of dharamshala by the Gram Panchayat, which stands proved by Exhibit-2, allotment dated 20.10.1968 through this allotment, 20x125ft open space was allotted to public dharamshala and PW-5 Udaynarayan, who is manager of Public Dharamshala, admits the same. This allotment is never challenged. The trial court clearly observed that if there was a public way/chowk, other than the public way of 30ft wide, there is no reason that how and why this open space, situated in front of public dharamshala, was allotted by Gram Panchayat and same was not challenged by plaintiffs. The first appellate court, despite such evidence and findings of trial court, though accepted that width of public way is 30ft wide, however, assumed that in front of dharmashala, a width of public road and chowk is 55ft wide and such observations of first appellate court are wholly contrary to the evidence on record and only based on assumptions.
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19. First Appellate court, placed reliance on documents, Exhibit- 3, allotment in favour of plaintiff No.5-Jhuntha Ram and Exhibit-4, gift deed in favour of plaintiff No.6 Mali Ram. In these documents though there is mention towards the northern side about existence of public way, however, the trial court has noticed that in Exhibit-3 itself, it is indicated that the main gate for entrance on this land would be from western side. Further, plaintiffs No.5 & 6, while appearing as PW-1 and PW-2, have admitted in their evidence that main gate/entrance to their guaris is from western side and not from the northern side towards the main Khatu Ringas Road. The first appellate court, without assigning any reasons to differ with such findings of the trial court, has assumed the entrance of guaris of plaintiffs No.5 & 6 from the main road of Khatu Ringas towards northern side, which is fully perverse. The learned trial court has appreciated documents Exhibits-2 & 4, coupled with statements of plaintiffs No.5 & 6 as also according to site inspection reports of the presiding officers themselves and observed that the entrance/gate of guaris and badas of plaintiffs No.5 & 6 is from the western side which does not adversely affect at all by the allotment of land in question to defendants No.1 to 7, as the enterance of these lands in question is opening towards the northern side of the main road of Khatu Ringas. The trial court noticed that the map appended by plaintiffs with plaint Exhibit-1, is wholly incorrect according to the site map, as prepared by the presiding officer after inspection of site in its site inspection report dated 29.05.1976. The land in question allotted to defendants was found to be situated after leaving 30ft wide public way towards southern site of the public way and thereafter, the guari and (Downloaded on 11/10/2022 at 08:46:45 PM) (32 of 38) [CSA-104/1988] houses of Jhuntha Ram were found. Therefore, the trial court, after appreciation of evidence as a whole, concluded that land in question is not part of the public way of 30ft wide and there is no public chowk and further the guaris and badas of plaintiffs No.5 & 6, have no opening towards this land, and the allotment of the land in question by the Gram Panchayat, Khatushyamji, in favour of defendants No.1 to 7, is not out of the land of public way or chowk. The perusal of findings of the trial court, in respect of issues no. 1 and 3, clearly show the appreciation of each and entire piece of evidence on record, but the first appellate court, without adverting to that evidence and without coming to the close quaters of findings of the trial court, has reversed such fact findings, merely by drawing its own conclusion on the basis of assumptions placing reliance on documents (Exhibits-3 & 4) in part and not as a whole. Therefore, findings and observations of the first appellate court, regarding land allotted to defendants as part of public way and chowk, are perverse.
20. First appellate court by drawing a presumption that the allotment of the land in question by the Gram Panchayat, Khatushyamji to defendants No.1 to 7 through pattas (Exhibit A1 to A7) is part of public way/chowk, observed that although, the Gram Panchayat made allotments of plots by way of public auction and followed the rules and procedure of law, yet, the Gram Panchayat was not authorized to sale/public auction the land of public way. It may be noticed that findings of the first appellate court that Gram Panchayat, Khatushyamji, made allotment of land in favour of defendants No.1 to 7, is part of a public way/chowk, itself is perverse being based on no evidence and wholly based on (Downloaded on 11/10/2022 at 08:46:45 PM) (33 of 38) [CSA-104/1988] assumptions and presumptions. The Pattas, which were issued by the Gram Panchayat in favour of defendants No.1 to 7, could not have been treated as null and void by itself, more particularly when it has been found that same were issued by the Gram panchayat after following the due process of law. The first appellate court has not noticed that plaintiffs nowhere ask for declaration to declare these allotment/pattas of defendants as null and void. It is undisputed position on record that plaintiffs No.1 to 4 did not appear to pursue their claim that the land allotted to defendants is part of public way and the challenge to pattas by plaintiff No. 5 before the Additional Collector, Sikar, has already been dismissed as withdrawn vide judgment dated 12.03.1976 (Exhibit-A8). And challenge to pattas by plaintiff No.6, has been dismissed on merits by the District Collector, Sikar vide judgment dated 20.04.1976 (Exhibit-A7). The limitation to challenge the validity of these pattas before the civil court is three years which has already expired. In the amended plaint, while challenging these pattas as void ab-initio and ineffective, plaintiffs nowhere asked for declaratory relief in the amended plaint in respect of these pattas. [The District Collector in its judgment dated 20.04.1976 (Exhibit A7) has clearly held that these pattas were issued by the Gram Panchayat after following the prescribed procedure of law and the land was sold to defendants No.1 to 7 by way of public auction.] The first appellate court also agreed with such findings and procedure findings of the District Collector and observed that pattas have been issued by the Gram Panchayat after following due process of law. In such scenario, where the land in question cannot be treated as part of public way/chowk, (Downloaded on 11/10/2022 at 08:46:45 PM) (34 of 38) [CSA-104/1988] the allotment of land by the Gram Panchayat in favour of defendants No.1 to 7, should not have been treated as void ab- initio and ineffective without seeking declaratory relief to this effect.
21. The Hon'ble Supreme Court, in its recent judgment delivered in case of Ratnagiri Nagar Parishad Vs. Gangaram Narayan Ambedkar [(2020) 7 SCC 725] held that a simplicitor civil suit for bare injunction, without any declaratory relief for declaration of auction/orders of allotment of the state land by the state authorities as illegal, is not maintainble. In that case plaintiff instituted a civil suit for permanent injunction against defendants and State Government in representative capacity, stating that Ratnagiri Nagar Parishad intends to set up a solid waste disposal project in the suit property, which would entail in serious health problems for villages as well as there is immense possibility of causing severe water pollution and further defendants had not taken any permission from the competent authority, therefore, a decree for perpetual injunction was prayed for not to set up the project. However, defendant and State Government asserted in the written statement that the suit land had been allotted to defendant after due deliberations and consultation with expert committee, and decision to allot for setting up the project was taken. Despite such disclosure by the competent authority to allot the suit land and allow to set up the project on the suit land by defendant, the plaintiff neither assailed orders of the competent authority or prayed for any declaratory relief in that regard. Therefore, the Hon'ble Supreme Court, on the face value of orders of allotment of suit land to defendant, and orders giving (Downloaded on 11/10/2022 at 08:46:45 PM) (35 of 38) [CSA-104/1988] permission to defendant to set up the solid water disposal project on the suit land, observed and held that the plaintiff has not sought for declaration about invalidity of such order nor have assailed such orders and his simplicitor suit for permanent injunction is not maintainable.
22. In case of Ratnagiri Nagar Parishad (Supra), the Hon'ble Supreme Court placed reliance upon its previous judgment delivered in case of Krishnadevi Malchand Kamathia Vs. Bombay Enviornmental Action Group [(2011) 03 SCC 363] wherein this court observed as under:-
"Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person."
The Hon'ble Supreme Court in case of Ratnagiri Nagar Parishad (Supra) also placed reliance upon a previous celebrated judgment in case of Smith Vs. East Elloe Rural District Council [(1956) AC 736], and following observations were made:
"An Order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset it will remain as effective for its ostensible purpose as the most impeccable of Orders."
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23. Therefore, the first appellate court committed perversity and jurisdictional error in decreeing the simplicitor civil suit for permanent injunction and treating it against defendants in respect of the land in question, which has been allotted to defendants by the Gram Panchayat, Khatushyamji, by way of public auction after following the due process of law and no declaratory relief to declare these allotments as null and void was prayed for in the civil suit filed by plaintiffs. In that view, the impugned judgment and decree dated 13.05.1988 of the first appellate court stands illegal and perverse.
24. Apart from afore-stated illegalities and perversity, it also appears by perusal of bottom-lines of Para 7 of the impugned judgment of the first appellate court that the appellate court swayed with the religious sentiments in the manner that in Village Khatushyamji, several pilgrims visit on and off and religious fair is also organized time and again, therefore, it would just and reasonable to keep the land situated in front of the public dharmshala open. Such findings are arbitrary and dehors to pleadings and evidence on record. It was the burden on plaintiffs to prove by evidence that width of road and chowk in front of the public dharmshala, is 55ft wide, which has not been proved and on the contrary, the allotment of land by the Gram Panchayat, Khatushyamji, to defendants No.1 to 7, after leaving 30ft public road, is proved and pattas issued to defendants No.1 to 7, which were not challenged in the present civil suit, could not have been assumed to be void ab initio on the basis of such arbitrary findings and reasoning. On this count also, findings of first appellate court are perverse and unsustainable.
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25. After discussions made hereinabove, the substantial question of law is decided in affirmative and in favour of appellants.
26. Having noticed the perversity on the part of the first appellate court in recording findings that land in question, sold/allotted by Gram Panchayat, Khatushyamji, to defendants- appellants, is part of public way/chowk, it transpires that such findings are based on no evidence and the first appellate court did not come into close quarters with the reasoning assigned by the trial court nor assigned reasons to reverse findings of the trial court, further the first appellate court has not considered the material and relevant evidence on record, which was considered by the trial court. The principle of law enunciated in case of Kondiba Dagadu Kadam (Supra) and Santosh Hazari (Supra) becomes applicable to the fact of present case and further according to the scope of interference with findings of fact of the courts below as permitted by the Hon'ble Supreme Court in case of Sebastiao Luis Fernandes (Supra), the impugned judgment and decree dated 13.05.1988, is liable to be interfered with by this Court, while exercising its jurisdiction under Section 100 CPC. Further, the findings of the first appellate court are based on surmises and conjunctures and also suffer from misreading of oral and documentary evidence, therefore, according to principles enunciated by the Hon'ble Supreme Court in case of Shiv Dayal (Supra) and in case of C Doddanarayanan Reddy (Supra) also become applicable.
27. Consequently, this Court is of considered opinion that according to the perversity and illegalities pointed out on the part of the first appellate court while decreeing plaintiffs' suit against (Downloaded on 11/10/2022 at 08:46:45 PM) (38 of 38) [CSA-104/1988] defendants on the basis of an assumption that the land in question allotted to defendants is part of a public way/chowk, is unsustainable in law and is liable to be set aside.
28. As a result, the instant second appeal stands allowed. The impugned judgment and decree dated 13.05.1988 passed by the Court of Additional District Judge, Sikar, is quashed and set aside.
The judgment and decree 21.12.1981, passed by the Court of Munsif and Judicial Magistrate, Dantaramgarh, District Sikar, is affirmed. Accordingly, the civil suit for permanent injunction filed by respondents-plaintiffs stands dismissed.
29. There is no order as to costs.
30. All other application(s), if any, also stand(s) disposed of.
31. Records of courts below be sent back forthwith.
(SUDESH BANSAL),J SACHIN (Downloaded on 11/10/2022 at 08:46:45 PM) Powered by TCPDF (www.tcpdf.org)