Rajasthan High Court - Jaipur
Laxman Gurjar S/O Shri Mangi Lal Gurjar vs Pooran Chand Sharma S/O Shri Kalla Ram ... on 29 August, 2023
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
[2023:RJ-JP:19917]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 558/2017
1. Laxman Gurjar S/o Mangi Lal Gurjar R/o Makadwali Tehsil and
District Ajmer (By Order dated 02.02.2011 transposed as
appellant no.4)
2. Beeram Gurjar S/o Mangi Lal Gurjar, R/o Makadwali Tehsil
And District Ajmer. (By Order Dated 02-02-2011 Transposed As
Appellant No. 5)
----Appellants/Defendants
Versus
1. Pooran Chand Sharma S/o Shri Kalla Ram Sharma R/o
28/256A Bihariganj Nasirabad Road Ajmer (Since Deceased)
through his legal heirs:-
1/1. Smt. Shanti W/o Late Shri Pooran Chand
1/2. Rakesh Sharma S/o Late Shri Pooran Chand
1/3. Anita D/o Late Shri Pooran Chand
R/o 556A/28 Geeta Nagar Bihari Ganj Ajmer
2. Smt. Chanchla Aludiya W/o Shri Prem Chand Aludiya Ro
House No.234/51 in front of Basant Bihari Colony Nayabada PS
Ajmer (Impleaded as respondnet vide order dated 11.08.2010)
3. Prem Chand Aludiya S/o Late Bhanwar Lal Aludiya R/o House
No.234/51 in front of Basant Bihar Colony Nayabada Police Line
Ajmer (Impleaded as respondent vide order dated 11.08.2010)
----Respondents/Plaintiffs
4. Smt. Vijay Laxmi W/o Shri Jay Shankar R/o 28/1002 Bihari Ganj Geeta Nagar Nasirabad Road Ajmer
5. Jay Shankar S/o Shri Shankaran Nayar R/o 28/1002 Bihari Ganj Geeta Nagar Nasirabadd Road Ajmer
----Proforma Respondents/Defendants-Original Appellants
6. Vinod Kumar S/o Mohan Lal B/c Rajput R/o Vikas Marg Bhajanganj Ajmer At Present R/o Geeta Nagar Bihari Ganj Nasirabad Road Ajmer
----Proforma Respondent/Transposed as appellant vide order dated 25.04.2008 For Appellant(s) : Mr. Jai Prakash Gupta with Mr. Ravi Singh For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment / Order 29/08/2023 This civil second appeal is preferred against the judgement and decree dated 19.05.2017 passed by the learned Additional District Judge No.3, Ajmer (Rajasthan) (for brevity, "the learned appellate Court") in Civil Appeal No.24/16 (10/13, 97/95) (Downloaded on 11/11/2023 at 07:39:39 PM) [2023:RJ-JP:19917] (2 of 4) [CSA-558/2017] whereby, while dismissing the appeal preferred by the appellants/defendants (for brevity, "the defendants"), the judgement dated 04.08.1995 passed by the learned Civil Judge (Junior Division), Ajmer City North, Ajmer (for brevity, "the learned trial Court") decreeing the Suit No.169/1990 filed by the predecessor-in-interest of the respondents for permanent injunction, has been affirmed.
The relevant facts in brief are that Shri Puran Chand Sharma, the predecessor-in-interest of the respondents no.1/1 to 1/3, filed a suit for permanent injunction stating therein that there is a 25 feet public way existing towards southern side of his residential house having opening of his gates towards it and being used by him for last about 25 years. Alleging that the defendants wanted to raise construction on this 25 feet subject way and obstructing it, the decree, as aforesaid, was prayed for.
The defendants in their joint written statement, denying the averments made in the plaint, submitted that no such way exists at the site. It was averred that the plaintiff has right of way towards the northern side of his house. Dismissal of the suit, therefore, was prayed for.
On the basis of pleadings of the parties, the learned trial Court framed six issues including relief. After recording evidence of the respective parties, the learned trial Court decreed the suit qua 20 feet only vide judgement dated 04.08.1995 and the civil first appeal preferred thereagainst by the defendants has also been dismissed by the learned appellate Court vide judgement and decree dated 19.05.2017.
(Downloaded on 11/11/2023 at 07:39:39 PM) [2023:RJ-JP:19917] (3 of 4) [CSA-558/2017] Assailing the impugned judgement and decree, learned counsel for the defendants submits that the learned appellate Court erred in dismissing the application filed by them under Order 41 Rule 27 CPC alongwith the appeal instead of deciding it separately that too without appreciating the nature of the documents. Learned counsel further submits that the suit filed by the plaintiff simplicitor for injunction in absence of prayer for declaration was not maintainable. He, therefore, prays that the civil second appeal be allowed, the judgement and decree dated 19.05.2017 be quashed and set aside and the suit be dismissed.
Heard. Considered.
While decreeing the suit, the learned trial Court has held that from the documentary evidence submitted by the plaintiff such as Ex. 1, the construction plan of the residential house of the plaintiff as approved by the Municipal Council, Ajmer, it was established that there existed a 20 feet wide public way towards southern side of his house constructed way back in the year 1964. It was held that since the suit was filed in the year 1988, it was proved that the plaintiff was using the subject way for last about 24-25 years. On the basis of the evidence on record, it was further held that main gate of the plaintiff's house has its opening towards its southern side whereas, towards its northern side, there is only a passage meant for sweeper. The aforesaid findings have been affirmed by the learned appellate Court re-appreciating the evidence on record. The learned appellate Court has further held, after critically analyzing the cross examination of the defendant no.2-S. Jai Shankar (DW-1) that he has admitted therein existence of a gate and windows of the plaintiff's house towards (Downloaded on 11/11/2023 at 07:39:39 PM) [2023:RJ-JP:19917] (4 of 4) [CSA-558/2017] its southern side. These concurrent findings of facts have not been shown by the learned counsel for the defendants to be suffering from any illegality, infirmity, perversity or jurisdictional error.
Contention of learned counsel for the defendants that in absence of a decree of declaration, the suit simplicitor for injunction was not maintainable is misconceived and does not merit acceptance. The plaintiff has been able to establish existence of a 20 feet wide public way towards southern side of his house which was being used by him peacefully and without obstruction for last about 24-25 years prior to institution of the suit. In view thereof, the suit simplicitor for injunction based on uninterrupted, peaceful and settled use of the public way even in absence of a prayer for decree for declaration was maintainable.
Similarly, submission of the learned counsel for the defendants that the learned appellate Court erred in dismissing the application filed by them under Order 41 Rule 27 CPC cannot be countenanced inasmuch as the application has been dismissed by the learned appellate Court at the time of deciding the civil first appeal on its merit; although, by a separate order. Further, a perusal of the order dated 19.05.2017 passed by the learned appellate Court rejecting the application reveals that cogent reasons have been assigned therein for its rejection.
In view of the aforesaid discussion, the civil second appeal is dismissed being devoid of any substantial question of law.
(MAHENDAR KUMAR GOYAL),J PRAGATI/100 (Downloaded on 11/11/2023 at 07:39:39 PM) Powered by TCPDF (www.tcpdf.org)