Rajasthan High Court - Jaipur
Smt Premlata Kachhawa vs Veer Singh And Another on 19 September, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 62/2013
Smt Premlata Kachhawa wife of Shri Nandlal Kachawa, resident
of Gali No.7, Sunder Vilas, Ajmer presently Jyoti Nagar, Bada
Bagru, Topdara, Ajmer.
----Appellant-defendant No.1
Versus
1. Veer Singh son of Shri Devilal self in the capacity of authority
letter holder for Ramesh sonof Devi and Anandilal son of Devilal,
resident of Topdara, Ajmer
------ Respondent-plaintiff
2. Nagar Parishad, Ajmer through its Chairman, Nagar Parishad office, Ajmer
----Respondent-defendant No.2 For Appellant(s) : Mr. Deepak Pareek For Respondent(s) : Ms. Harshita Sharma for Dr. Mahesh Sharma HON'BLE MR. JUSTICE SUDESH BANSAL Order 19/09/2022
1. Appellant-defendant No.1 has preferred this second appeal under Section 100 CPC, assailing the judgment and decree dated 14.12.2012 passed in Civil Appeal No.21/2012 by the Court of Additional District Judge No.5, Ajmer whereby and whereunder the judgment and decree dated 6.1.2005 passed in suit No. 150/1998 by the Court of Civil Judge (Junior Division), East, Ajmer, dismissing plaintiff's suit for permanent injunction, has been decreed against appellant-defendant No.1 in following terms:
"परिणाम स्वरुप अअप अप्पी्पीलाीलारपीलार्थी / वाद अप्पी व अप्पीि ससिंह दािा प्रप्रस प्रस्तुत यह अप अप्पी्पील ववरुद्ध प्रत्यीलारपीलार्थीगण/प्रवतवाद अप्पीगण प्रगण प्रेम्पीलता कता कचावा वग्छावा वगैिह स्व अप्पीकाि क स्वीकार की ीकार की जाकि ववदान अध अप्पीनस्थ थ नाय्पीलय कगण प्रे वनणके निर्णय एवर्णय एवं एवं डय एवं डिवं डिक स्वीकार की एवं डदनार्णय एवंक 06.01.2005 को अपाप्रस वकया ीकार की जाकि वाद अप्पी का वाद ववरुद्ध प्रवतवाद अप्पीगण दीगण बादीगण बत स्थाय अप्पी वनषगण प्रेधाजा एवं डय एवं डिवं डिक स्वीकार की वकया ीकार की जाकि प्रवतवाद अप्पी सर्णय एवं० 1 श अप्पीमत अप्पी प्रगण प्रेम्पीलता कता कचावा को (Downloaded on 25/12/2022 at 08:47:17 AM) (2 of 7) [CSA-62/2013] ीकार की जरियगण प्रे स्थाय अप्पी वनषगण प्रेधाजा पादीगण बर्णय एवंध वकया ीकार की जाता ह्छावा वगै क स्वीकार की वह अपनगण प्रे मकान कगण प्रे उत्ति क स्वीकार की औि वाद अप्पी क स्वीकार की भभूमम क स्वीकार की तिफ कोई खखिड़क स्वीकार की दिवाज़गण प्रे का वनमर्माण वदीगण बना सगण प्रेट दीगण ब्छावा वगैक छोोड़गण प्रे नहं किगण प्रे एवर्णय एवं ीकार की जो अव्छावा वगैध रूप सगण प्रे खखिड़क स्वीकार की, दिवाज़गण प्रे खिो्पीलगण प्रे ह्छावा वगै उन्हें वनणके निर्णय क स्वीकार की एवं डदनार्णय एवंक कगण प्रे एक माह म्हें दीगण बर्णय एवंद किगण प्रे, साीलार ह अप्पी प्रवतवाद अप्पी सर्णय एवं०-1 को इस आदगण प्रेश सगण प्रे भ अप्पी पदीगण बर्णय एवंध वकया ीकार की जाता ह्छावा वगै क स्वीकार की भववष्य म्हें वह अपन अप्पी सर्णय एवंपमत्त म्हें कोई भ अप्पी वकस अप्पी प्रकाि का वनमर्माण कायके निर्ण किगण प्रे तो वह वदीगण बना नगि परिषद/ प्रवतवाद अप्पी सर्णय एवं०-2 क स्वीकार की अन प्रस्तुमवत कगण प्रे एवर्णय एवं वदीगण बना नका स्व अप्पीक्वीकृत किायगण प्रे नहं किगण प्रे प्रवतवाद अप्पी सर्णय एवं० -2 को भ अप्पी पादीगण बर्णय एवंध वकया ीकार की जाता ह्छावा वगै क स्वीकार की वह स प्रस्तुवनश्चित किगण प्रे क स्वीकार की उसक स्वीकार की अन प्रस्तुमवत एवर्णय एवं वनमर्माण स्व अप्पीक्वीकृवत कगण प्रे वदीगण बना कोई वनमर्माण कायके निर्ण नहं हो। एवं डय एवं डिवं डिक स्वीकार की पििक्री परचा तदन प्रस्तुसाि म प्रस्तुतपीलार्थीदीगण ब वकया ीकार की जावगण प्रे ।"
2. Heard counsel for both parties, perused the impugned judgment and record. Hereinafter appellant shall be referred as defendant No.1 and respondent No.1 as plaintiff in the later part of the judgment.
3. It is not in dispute that plaintiff and defendant No.1 both are neighbours. Plaintiff purchased the plot out of Khasra No.3985 and defendant No.1 is owner of plot in Khasra No.4119 at Jyoti Nagar, Bada Bagru, Topdara, Ajmer. It has come on record that defendant No.1 has opened two windows and one gate towards the plot of plaintiff laying open and situated northern side of defendant's plot. It has come on record that plot of defendant No.1 is south facing, where a 20' feet road is situated. When defendant No.1 started to raise construction on his plot, and inclined to open windows and gate towards northern side i.e. plaintiff's plot. Plaintiff has instituted present suit for permanent injunction on 27.11.1998. Defendant No.1 submitted his written statement contending that she has opened two windows and one gate towards northern side to his life and four feet wide gallery.
4. The first Appellate Court has recorded a fact finding of appreciation of evidence of plaintiff (Pw.1) and defendant No.1 (Downloaded on 25/12/2022 at 08:47:17 AM) (3 of 7) [CSA-62/2013] (Dw.1) as also considering the report of Court Commissioner that towards northern side of plot of defendant, no passage/ gallery of four feet wide is left and defendant No.1 has not constructed any boundary wall. Defendant No.1 herself has admitted in her cross- examination that on three sides i.e. East, West and South, her boundary wall is constructed but towards northern side, where plot of plaintiff is situated, no boundary wall is constructed. The first Appellate Court, on appreciation of such evidence, observed that plots of plaintiff and defendant No.1 are adjoining. Though, some conflicting evidence of parties with regard to making an allegation against each other to encroach upon two and three feet area of their respective plot have also been levelled but first Appellate Court did not entered into that controversy, denying not of the fact that present suit is only in relation to opening/ closure of windows and gate towards his plot. The first Appellate Court, on appreciation of such evidence, has restrained defendant No.1 not to open any gate, window, ventilation towards the plot of plaintiff, it means, norther side of his plot as both plots are situated adjoining and no passage/ gallery was left by defendant No.1 towards northern side of his plot. Simultaneously, in view of admitted fact by defendant No.1 that two windows and one gate have opened by her towards northern side. The first Appellate Court issued direction against defendant No.1 to close these windows and gate. Rest part of impugned judgment dated 14.12.2012 is innocuous as defendant No.1 has been restrained not to raise any construction without seeking permission and sanction of the building plan by Nagar Parishad, Ajmer.
5. The impugned judgment and decree dated 14.12.2012 has been passed on the basis of factual matrix as emerged on record (Downloaded on 25/12/2022 at 08:47:17 AM) (4 of 7) [CSA-62/2013] by evidence of both parties as also according to the report of Court Commissioner. As far as issue with regard to opening of two windows and one gate by defendant No.1 towards northern side where plaintiff's plot is situated, is not in dispute. Defendant No.1, though, took a defense in written statement that a four feet wide passage/ gallery has been left towards northern side but she has admitted in her cross-examination that no boundary wall is constructed to his house towards northern side. The first Appellate Court, has recorded fact findings that towards northern side of defendant's plot, plot of plaintiff is adjoining. This fact finding, is based on the material available on record.
6. Hon'ble the Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722] has held as under:-
"It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the first Appellate Court. It is true that the lower Appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arriaved at without evidence. "(Downloaded on 25/12/2022 at 08:47:17 AM)
(5 of 7) [CSA-62/2013]
7. The aforesaid judgment has been affirmed and relied upon by the Supreme Court in case of Gurnam Singh Vs. Lehna Singh [(2019) 7 SCC 641] and Thulasidhara Vs. Narayanappa [(2019) 6 SCC 409], which has held as under:-
"7.2 As observed and held by this Court in Kondiba Dagadu Kadam V. Savitribai Sopan Gurjar, in the second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds 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 Apex Court; OR
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision 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 the second appeal. It is further observed that the trial court could have decided differently is not question of law justifying interference in second appeal."
8. In Santosh Hazari Vs. Purushottam Tiwari [(2001) 3 SCC 179] the Supreme Court Court held as under:-
"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or (Downloaded on 25/12/2022 at 08:47:17 AM) (6 of 7) [CSA-62/2013] not; the paramount overall consideration being the need for striking a judicios balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
9. Counsel for appellant could not point out perversity in such fact finding of the first Appellate Court which is based on record. Counsel for appellant is not able to explain about leaving of any gallery/ passage of four feet wide by defendant No.1 towards northern side of her plot.
10. The fact finding is the province of the trial Court or the first Appellate Court if same is based on appreciation of evidence and material on record, need not to be interfered with by the High Court while exercising jurisdiction under Section 100 of CPC.
11. It is also trite law that the first Appellate Court, on re- appreciation of evidence on record, if observed that findings of the trial Court are not proper and suffer from infirmity/ illegality, the first Appellate Court may record its own fact findings and by assigning reasons, may set aside/ reverse findings and decree of the trial Court. In the present case, the first Appellate Court in the impugned judgment dated 14.12.2012 has assigned reasons to upset findings and decree of the trial Court and to grant the decree in favour of plaintiff and against defendant No.1, to close windows and gate in question and restrained defendant No.1 by way of permanent injunction not to open windows and gate towards northern side, it means, on the plot of plaintiff.
12. This Court does not find any jurisdictional error or illegality in the impugned judgment which give rise to any substantial question of law. Involvement of substantial question of law is sine qua non for exercising the jurisdiction under Section 100 CPC and to entertain the second appeal. Hence, the second appeal is found (Downloaded on 25/12/2022 at 08:47:17 AM) (7 of 7) [CSA-62/2013] to be devoid of merits and the same is dismissed. There is no order as to costs.
13. Stay application as well as any other pending application(s),if any, stand(s) disposed of.
(SUDESH BANSAL),J NITIN /86 (Downloaded on 25/12/2022 at 08:47:17 AM) Powered by TCPDF (www.tcpdf.org)