Rajasthan High Court - Jaipur
Moolchand S/O Ramdutt vs Ram Singh S/O Bihari Lal on 31 October, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.516/2019
1. Moolchand S/o Ramdutt, R/o Nihaloth, Tehsil Buhana,
District Jhunjhunu Rajasthan
2. Shishram S/o Ramdutt, R/o Nihaloth, Tehsil Buhana,
District Jhunjhunu Rajasthan
----Appellants
Versus
Ram Singh S/o Bihari Lal, R/o Nihaloth, Tehsil Buhana, District
Jhunjhunu Rajasthan
----Respondent
For Appellant(s) : Mr. Sandeep Garssa
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
31/10/2022
1. The instant second appeal under Section 100 CPC has been filed by appellants-defendants challenging the judgment and decree dated 08.08.2019 passed in Civil Regular Appeal No.2/2012 by the Court of Additional District Judge, Khetri affirming the judgment and decree dated 14.12.2011 passed in Civil Suit No.23/2007 by the Court of Civil Judge (Sr. Division), Khetri whereby and whereunder following decree has been passed:-
"एतद्द्वार्वा व्वाद व्वादादी ववरुद्ध प्रवतव्वादादीगण वादीगण डिगण डिकीगण डिक्री व डिक्री किक्री किय्वा ी किया ज्वा डिक्री किर व्वादपत डिक्री कि पर्वा स संखक्री किय्वा 3 मे दर्वा्क्री किय च चौ डिक्री कि डिक्री कि को र्वावमल्वातादी घ कोवोषित व डिक्री किक्री किय्वा ी किया ज्वात्वा ह तथ्वा प्रवतव्वादादीगण डिक्री कि को ी किया जररक्री किय सथ्वाक्री कियादी वी निोषिेध्वााज्वा प्वा पाब संद व डिक्री किक्री किय्वा ी किया ज्वात्वा ह व डिक्री कि व उक्त च चौ डिक्री कि मे डिक्री कि कोई अवतगण डिकमण आवद ी नि डिक्री किरे, ी नि हादी वी निम्वा्ण डिक्री कि्वाक्री किय् डिक्री किर अथव्वा अअनक्री किय व डिक्री किसादी प्र डिक्री कि्वार स अवर कोेध डिक्री किरे। उअनहे ी किया जररक्री किय आाज्वाप डिक्री कि आदर प्वा पाब संद व डिक्री किक्री किय्वा ी किया ज्वात्वा ह व डिक्री कि व (Downloaded on 02/11/2022 at 08:48:55 PM) (2 of 4) [CSA-516/2019] उक्त च चौ डिक्री कि मे व डिक्री किक्री किय गक्री किय सवक्री किय सं डिक्री कि वी निम्वा्ण आवद डिक्री कि को ह हट्वाक्री किये । प्रवतव्वादादीगण डिक्री कि ऐस्वा ी नि डिक्री किरी नि डिक्री किीगण डिक्री सरू त मे व्वादादी उक्त वी निम्वा्ण डिक्री कि्वाक्री किय् आवद डिक्री कि को ह हटव्वा डिक्री किर प्रवतव्वादादी गण स उस डिक्री कि्वा खच्वा् वसल ू ी नि डिक्री कि्वा अवेध डिक्री कि्वारादी ह कोग्वा । तद्वाी निी निनस्वार वादीगण डिगण डिकीगण डिक्री पच्वा् मनत मुर्ती पाब ह को ।"
2. Heard counsel for appellants and perused the impugned judgments.
3. At the outset, it has been noticed that it is not in dispute between parties that both belongs to one family and partition has already been taken place. According to plaintiff, the chowk in question measuring 48 ft. X 25 ft. was left for common use.
4. Per contra, defendants claim that on the basis of subsequent document dated 16.06.1997 (Ex.A1), the chowk was exclusively given to them. In evidence, Ex.A1 has been found to be unregistered, unsigned document. The Scriber of document, Phool Singh (DW-2), has appeared to prove this document but in cross- examination he has admitted that he did not write this document. None of the witnesses appeared to prove this document. In view of undisputed fact that the partition had taken place long back and in that partition, the chowk was left for common use and in absence of evidence of defendants to prove the document dated 16.06.1997, this Court finds that the trial court has not committed any illegality and jurisdictional error in declaring the chowk in question as common and restraining the defendants not to raise any construction nor made any obstruction as also to remove the obstruction from the common chowk. The first appellate court too has concurred the judgment and decree of trial court after appreciation of the evidence.
5. In the fact finding, recorded by both courts below, counsel for appellants is unable to show any perversity. Fact findings are (Downloaded on 02/11/2022 at 08:48:55 PM) (3 of 4) [CSA-516/2019] based on evidence on record and do not give rise to any substantial question of law. In absence of any substantial question of law, the second appeal is not liable to be entertained.
6. The Hon'ble Supreme Court in case of State of Rajasthan v. Shiv Dayal [(2019) 8 SCC 637], has 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:
"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 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. vs. Dashrath Narayan Chilwelkar & Ors.,[AIR 1943 Nag 117 para 43]"
7. The Hon'ble Supreme Court in case C. Doddanarayan Reddy vs. C. Jayarama Reddy [(2020) 4 SCC 659], has observed that where two courts have reached a finding which is not based upon any misreading of material documents, nor is recorded against provisions of law and neither can it be said that any Judge acting judiciously and reasonably could not have reached such a finding, then High Court is not required to interfere with such fact findings while exercising its jurisdiction under Section 100 CPC.
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8. As a result, the second appeal is bereft of merits being no involvement of any substantial question of law and accordingly, the same is hereby dismissed.
9. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J SAURABH/14 (Downloaded on 02/11/2022 at 08:48:55 PM) Powered by TCPDF (www.tcpdf.org)