Rajasthan High Court - Jaipur
Smt. Jamna And Ors. vs Bhuwana on 14 March, 1997
Equivalent citations: AIR1998RAJ214
Author: R.R. Yadav
Bench: R.R. Yadav
ORDER R.R. Yadav, J.
1. One Bhura Ram filed a suit against defendant-respondent-Bhuwana for permanent injunction restraining him from raising construction over the public lane in question. Bhura Ram expired during pendency of the First Appeal and now deceased Bhura Ram is being represented by his legal representatives appellants Nos. 1 to 7.
2. Brief facts averred in the plaint, which are necessary for just decision of the case, are that the plaintiff appellants own and possess a house bounded by Kachcha four walls. Towards Southern side of their house, there is Government lane and after that, the house of the defendant is situated. On 30-7-72, the defendant started construction on the plaintiffs land and the Government lane (hereinafter referred to as 'the disputed land') by which, his egress and ingress was closed. In spite of repeated request of the plaintiff to" the defendant for not making construction over the disputed land, the defendant proceeded with the construction, which necessitated to file the present suit.
3. The defendant filed his written statement, in which, he admitted that there is a Kachcha house of the plaintiff. However, he denied that there is open land of the plaintiff. He further averred in his written statement that due to his proposed construction in progress the ingress and egress of the plaintiff is not going to be affected. In the written statement, the defendant stated that he does not want to close the lane but wants to make construction only on his own land, which is in his possession from the time of his ancestors.
4. On the pleadings of the parties, learned trial Court framed as many as four issues and gave opportunity to the parties to adduce evidence.
5. After conclusion of evidence, the learned trial Court heard the learned counsel for the parties and dismissed the suit for permanent injunction on 23-5-1980.
6. Aggrieved against dismissal of the suit on 23-5-1980, the plaintiff Bhura Ram preferred an appeal before the learned lower appellate Court.
7. On 23-9-1980, the plaintiff-appellants moved an application under Order 41, Rule 27, C. P. C. which was rejected on 16-2-1988 by the learned lower appellate Court on the date of judgment by separate order whereas another application moved under Order 41, Rule 27, C. P. C. by him on 3-1-84 making a prayer to bring on record public documents indicating the situation of his house and existence of public lane left undecided by the learned lower appellate Court.
8. Appeal of the plaintiff-appellant was dismissed by the learned lower appellate Court on 16-2-88 and judgment and decree passed by the learned trial Court was affirmed.
9. After dismissal of appeal on 16-2-88, the legal representatives of deceased Bhura Ram have preferred the present Second Appeal which is posted today for final hearing.
10. List is revised. Learned counsel for the appellants Mr. Pankaj Bhandari is present. But neither counsel for the respondent nor respondent himself is present in Court in person, therefore, the Court has no alternative except to proceed ex parte against him.
11. Heard learned counsel for the appellants Mr. Pankaj Bhandari.
12. Learned counsel for the appellants Mr. Pankaj Bhandari urged before me that the learned lower appellate Court has no jurisdiction to dismiss the appeal filed by the appellants and confirm the judgment and decree passed by the learned trial Court without parsing any order on the application dated 3-1-84 moved by the appellants under Order 41, Rule 27, C. P. C. There is substance in the argument of the learned counsel for the appellants.
13. I am of the view that the learned lower appellate Court has committed serious error of law and procedure in dismissing the appeal of the appellants on 16-2-88 without passing any order on the aforesaid application. The learned lower appellate Court has no jurisdiction to dismiss the appeal before deciding the application under Order 41, Rule 27, C. P. C. The documents sought to be filed in the present case under Order 41, Rule 27, C. P. C. were public documents having bearing on the merit of the case and the learned lower appellate Court has illegally dismissed the appeal before passing any order on the said application.
14. It is true that learned lower appellate Court has rejected the application dated 23-9-80 moved by the appellants under Order 41, Rule 27, C. P. C. on the date of delivery of judgment but in my opinion, the learned lower appellate Court has committed serious error of law and procedure in rejecting the said application. The documents accompanying with the said application are necessary for effective and complete adjudication of the controversy between the parties for all time to come, hence, application under Order 41, Rule 27, C. P. C. deserves to be allowed and it is hereby allowed. The order passed by the learned lower appellate Court rejecting the said application on 16-2-88 is set aside.
15. A close scrutiny of the judgment given by the learned trial Court on 23-5-80 reveals that the learned trial Court has recorded two contradictory findings on issues Nos. 1 and 3, which cannot be reconciled. The finding on issue No. 1 contradicts the finding recorded on issue No. 3 yet the learned lower appellate Court has not properly addressed itself on these two contrary findings recorded by the learned trial Court on issues Nos. 1 and 3.
16. As I propose to remand the case, hence, it would not be proper to make any observations about the merits of the case. After remand, the learned lower appellate Court is directed to decide appeal on merits keeping in view that encroachment on the National Highway, State Highway, Public Roads, Public Streets and Public Lanes have become order of the day. It is pious aim and object of the law and law Courts to protect the lamb from lions, In such cases, usually it is lamb who files the suit for redressal of his rights and public rights which deserves to be decided by the Courts with sensitivity, so that, wrong doers may not start thinking that there is no one to police them and their illegal activities to encroach upon the public roads, public streets and public lanes are immuned from judicial review.
In view of what have been discussed above, the instant second appeal is allowed and judgment and decree dated 16-2-1988 passed by the learned lower appellate Court is set aside and the case is remand to the learned lower appellate Court with a direction to re-admit the appeal at its original number and decide the same on merits in accordance with law in the light of the observations made in the body of this judgment.
Cost is made easy.