Rajasthan High Court - Jaipur
Roop Chand Maheshwari S/O Late Shri ... vs Smt. Shakuntala Kumari W/O Shri Rav ... on 11 September, 2023
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
[2023:RJ-JP:22021]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 581/2019
1. Roop Chand Maheshwari S/o Late Shri Nandkishore,
(Since Deceased) through LRs.
1/1. Ballabh Das Maheshwari, Aged About 58 Years,
1/2. Jamna Das Maheshwari, Aged About 55 Years,
1/3. Kishan Das Maheshwari, Aged About 53 Years,
1/4. Gokul Das Maheshwari, Aged About 49 Years,
All Sons of Late Shri Roop Chand Maheshwari, All
Residents of 4, Shubham Enclave, Jamna Lal Bajaj Marg,
C-Scheme, Jaipur.
----Appellants-Defendants
Versus
1. Smt. Shakuntala Kumari W/o Shri Rav Surendra Pal
Singh, Through Power of Attorney Holder Shri Ajay Singh
S/o Shri Shyam Singh, R/o B-103, Meera Marg, Banipark,
Jaipur (Died During Pendency Of Suit)
1/1. Rav Surendra Pal Singh S/o Shri Rav Bijendra Pal Singh,
R/o Plot No.A-1, Sardar Patel Marg, C-Scheme, Jaipur
(Died During Pendency 0f Suit)
1/1/1 Smt. Jayendra Kumari W/o Shri Arunpuri, R/o A-3,
Sardar Patel Marg, C-Scheme, Jaipur
1/1/2 Smt. Chetana Kumari W/o Shri Ajay Singh, R/o A-
3, Sardar Patel Marg, C-Scheme, Jaipur
----Respondents-Plaintiffs
For Appellant(s) : Shri R.K. Daga with Shri Rahul Singh Chauhan For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment 11/09/2023 This civil second appeal is preferred against the judgement and decree dated 31.8.2019 passed by learned Additional District (Downloaded on 11/11/2023 at 07:55:01 PM) [2023:RJ-JP:22021] (2 of 6) [CSA-581/2019] Judge No.4, Jaipur Metropolitan (for short-`the learned appellate court') in Civil Regular Appeal No.2/2013 (871/2014) whereby, while dismissing the appeal preferred by the appellants, the judgement dated 29.5.2013 passed by the learned Additional Civil Judge (Jr. Division), No.3, Jaipur Metropolitan (for brevity "the learned trial Court") partly decreeing the original civil suit no.214/1998 (77/97) filed by Smt. Shakuntala Kumari, the predecessor-in-interest of the respondents (for short-`the plaintiff') for permanent injunction, has been affirmed.
The relevant facts in brief are that the plaintiff filed a suit for permanent injunction against Shri Roop Chand Maheshwari, the predecessor-in-interest of the appellants (for short-`the defendant') stating therein that she is owner of a haveli situated near office of Rajasthan Roadways, C-Scheme, Jaipur and towards its southern side, there is another property, popularly known as "tabela" under her ownership which was sold to various persons vide sale deed dated 24.11.1970. It was submitted that there are certain houses situated inside this "tabela" including house no.26 of the defendant adjoining to which, there is a room, a part of her haveli and at the time of selling the "tabela", the common passage in between the house of the defendant and her room was closed by raising construction of a pucca wall and the gates from the rooms under her ownership having opening in the house no.26, were also closed by a brick wall separating the portion of the plaintiff and the defendant. It was alleged that the defendant is raising new construction demolishing his house and in its grab, he wants to encroach upon her property and wants to open windows, balconies and ventilation towards her house. It was stated that (Downloaded on 11/11/2023 at 07:55:01 PM) [2023:RJ-JP:22021] (3 of 6) [CSA-581/2019] the defendant has no right to demolish the common wall and the plaintiff's construction existing thereon. Therefore, the decree as aforesaid was prayed for.
The defendant in his written statement, denying the averments made in the plaint, submitted that number of his house is C-21 and not 26. It was denied that room of the plaintiff is adjoining to his property. It was submitted that he has raised construction on the land under his possession without any encroachment on the plaintiff's property. It was further stated that the windows and ventilation were already existing in the subject wall. In the additional plea, it was submitted that in absence of a prayer for declaration, the suit simplicitor for injunction was not maintainable. Dismissal of the suit, therefore, was prayed for.
On the basis of pleadings of the parties, the learned trial court framed two issues including relief. After recording evidence of the respective parties, the learned trial court partly decreed the suit vide its judgement dated 29.5.2013 and the civil first appeal preferred thereagainst by the defendant has also been dismissed by the learned appellate court vide judgement and decree dated 31.8.2019.
Assailing the impugned judgement and decree, the learned counsel for the defendant submitted that the learned courts erred in partly decreeing the suit relying upon testimony of Shri Ajay Singh (PW1), the power of attorney holder for the plaintiff without her entering in the witness box. He further submitted that even otherwise also, the power of attorney did not authorise Shri Ajay Singh to depose qua the subject property as he has admitted during his cross examination that he was conferred no title over (Downloaded on 11/11/2023 at 07:55:01 PM) [2023:RJ-JP:22021] (4 of 6) [CSA-581/2019] the subject property through it. Lastly, he submitted that in absence of a prayer for decree of declaration, the suit simplicitor for injunction was not maintainable. He, therefore, prays that the civil second appeal be allowed, the judgement and decree dated 31.8.2019 be quashed and set aside and the suit be dismissed.
Heard. Considered.
While partly decreeing the suit, the learned trial court has held that the house no.26 was purchased by the defendant from its erstwhile owner Smt. Prem Khandelwal which, in turn, was sold to her by the plaintiff vide registered sale deed (Ex.2) wherein, it was mentioned that the purchaser, i.e., Smt. Prem Khandelwal, would immediately close the ventilation/windows/projection existing in the common wall in between the house no.26 and haveli of the plaintiff and in future, would not raise any such construction towards plaintiff's property. It was held by the learned trial court that since, Smt. Prem Khandelwal, the purchaser under the sale deed (Ex.2), could not have conferred on the defendant better right than her, the defendant also did not have any right to open any ventilation or projection towards the plaintiff's property. It was observed that the defendant has admitted during his cross examination as DW1 that Smt. Prem Khandelwal has agreed to close the ventilation, drainage etc. having opening towards plaintiff's property. Recording a finding that the plaintiff could not establish that the defendant has encroached upon a part of her property, the suit was partly decreed qua non-demolition of the common wall in between the house no.26 of the defendant and haveli of the plaintiff and not to raise construction of any window, balcony or ventilation in it. The (Downloaded on 11/11/2023 at 07:55:01 PM) [2023:RJ-JP:22021] (5 of 6) [CSA-581/2019] findings have been upheld by the learned appellate court after re- appreciating the evidence on record. In view of the aforesaid findings, in the considered opinion of this Court, the learned courts did not err in partly decreeing the suit filed by the plaintiff.
Contention of the learned counsel for the defendant that in absence of the plaintiff appearing in the witness box, the suit could not have been decreed merely relying upon the testimony of her power of attorney holder Shri Ajay Singh (PW1), is wholly misconceived and does not merit acceptance. It is trite law that in order to establish his/her case, the plaintiff is not required to appear in the witness box and testimony of the power of attorney is sufficient for this purpose if his/her deposition is based on his personal knowledge. Moreover, in the present case, the suit has partly been decreed relying mainly upon the documentary evidence available on record and the admission made by the defendant himself during his cross examination as DW1.
Submission of the learned counsel that in absence of conferment of title of the subject property under the power of attorney (Ex.1) upon Shri Ajay Singh, he did not have any authority to depose, is being taken note of only for rejection. By no stretch of imagination, conferment of title of the subject property can be held to be sine-qua-non for an authority to depose on behalf of the principal.
Further, in absence of any cloud over title of the plaintiff qua the subject property, i.e., the haveli, her suit for injunction was maintainable even in absence of a prayer for declaration. Therefore, contention of the learned counsel for defendant in this regard is not tenable.
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[2023:RJ-JP:22021] (6 of 6) [CSA-581/2019] Since, the learned counsel for the defendant could not satisfy this Court that the concurrent findings of facts recorded by the learned courts suffer from any perversity, infirmity or jurisdictional error so as to warrant interference by this Court under Section 100 CPC, this Court finds no merit in this second appeal.
Resultantly, the civil second appeal is dismissed.
(MAHENDAR KUMAR GOYAL),J RAVI SHARMA /177 (Downloaded on 11/11/2023 at 07:55:01 PM) Powered by TCPDF (www.tcpdf.org)