Dismissed

Shri Oswal Srisangh Panchayat, Churu v. Lrs of Balkrishan Bagla

Rajasthan HC7 May 2014CSA/170/2006

Case brief

AI extract

What is this about?

In this second appeal under Section 100 CPC, the appellant challenged the dismissal of a suit for injunction regarding a public way. The court held that concurrent findings that the land was a public way were not perverse and rejected the request for additional evidence on the sale deed, dismissing the appeal.

What did the court decide?

Appeal dismissed as there is no substance in the appeal; no costs awarded.

Shri Oswal Srisangh Panchayat, Churu Vs Lrs of… — Property and Title | Rajasthan HC (2014)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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: J U D G M E N T :

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S.B. CIVIL SECOND APPEAL NO.170/2006

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Shri Oswal Srisangh Panchayat, Churu

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vs.

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Late Bal Krishan Bagala & Ors.

Date of Judgment

:: 07^th May, 2014

PRESENT

HON'BLE MR. JUSTICE ARUN BHANSALI

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Mr. O.P. Mehta, for the appellant.

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BY THE COURT:

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This second appeal under Section 100 CPC is directed against judgment and decree dated 21.05.2005 passed by Additional District Judge, Churu, whereby, judgment and decree dated 03.12.2004 passed by Civil Judge (Junior Division), Churu has been upheld.

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The facts in brief may be noticed thus: the appellantplaintiff filed a suit for declaration and permanent injunction against the respondent Bal Krishan Bagla with the averments that a institution in the name of 'Shri Oswal Srisangh Panchayat, Churu' has been constituted and its property named Oswal Panchayat Bhawan is situated at Ward No.18, Main Market, Churu, which is being managed by the said institution and its duly appointed President and Manager was Vijay Singh; for purchasing the Panchayat Bhawan, an agreement dated 19.09.1941 was executed with Sheodev Lohiya S/o Ram Lal Lohiya and, in pursuance thereof, a sale deed dated 03.10.1941 was executed and subsequently Patta dated 27.04.1953 was issued by Commissioner, Bikaner in the name of the Panchayat;

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the gate of the Panchayat Bhawan is on the southern side and on its northern side Sheodev Lohiya's Nohara and on eastern side of the said Nohara there is a Chawk, which is still a Chawk; land of the Chawk is part of Patta of Sheodev Lohiya and he was the owner thereof; Mahaveer Prashad Lohiya heir of Sheodev Lohiya etc. are sole owners and are in possession; vide agreement dated 19.09.1941 Sheodev Lohiya agreed that from the Chawk situated on the eastern side of the Nohara a 10 Yard wide and 43 Yard 14 Anna long way was provided to the owners of Panchayat Bhawan for ingress and egress and in pursuance of the agreement only, the sale deed was executed and whereafter the way was being used regularly; it was claimed that except for the heir of Sheodev Lohiya and for ingress and egress of the Panchayat Bhawan the land of the Chawk cannot be utilized by anyone; the Haveli of the defendant was situated along the said way and as the land belongs to Sheodev Lohiya none of the gates, windows etc. are existing on the said way; earlier the father of the defendant opened outlet on the said way, which was closed and an agreement was entered into between the parties; it was alleged that the defendant was seeking to construct shops on the way by demolishing a part of his wall adjacent to the way and for which he has got prepared two iron shutters and has placed the same on night intervening 23^rd & 24^th August, 1986 and tried to open the way; the defendant was told not to do the same; however, when the defendant did not stop the illegal activity a stay was obtained from the Municipality, Churu; no permission under the Municipalities Act was obtained, it was alleged that by construction of the shop,

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the way leading to the guest house would be closed and, therefore, it was prayed that the defendant is not entitled to open any gate, window or construct any shop and permanent injunction was sought in this regard.

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A written statement was filed by the defendant; it was, inter alia, indicated that the institution was not registered at the time of filing of the suit and, therefore, the suit was not maintainable; there is no Patta in the name of Panchayat; the land in question is of public way and even if the same was owned by Sheodev Lohiya, as the same remained in public use for 6070 years, the same is now public way; there are several shops in the Chawk and a Pyau; the map produced was disputed; the construction has been done after seeking permission from the Municipality, against which, appeal was filed before Additional Collector, Churu, which was rejected, whereafter the suit has been filed; the plaintiff does not have any right regarding the said public way and the way is not affected as no construction has taken place on the land of the way; objections about pecuniary jurisdiction were also raised.

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The trial court framed seven issues; on behalf of the plaintiff – two witnesses were examined; however, as the crossexamination of PW-2 remained inconclusive and he died, the same was held as inadmissible; certain documents were produced, from which, document Exhibit-1 was impounded; on behalf of the defendant six witnesses were examined and five documents were exhibited.

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After hearing the parties, the trial court came to the conclusion that the plaintiff failed to prove the way to be its

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personal and the way was found to be a public way and the plaintiff was not entitled to stop anyone from opening window, gate ect. thereon; the plaintiff was not entitled for removal of the shutter; the suit was maintainable without seeking declaration about ownership; the suit was maintainable despite the institution not being registered at the time of filing of the suit; the objection relating to pecuniary jurisdiction was decided against the defendant and ultimately the trial court dismissed the suit.

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Being aggrieved, the appellant filed first appeal.

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After hearing the parties, the first appellate court upheld the judgment and decree passed by the trial court and came to the conclusion that the document Exhibit-1 was not a registered document and the same does not contain signatures of both the parties; as per the Commissioner report, on both the sides of the road (way) shops are situated, transformer exists and a litigation against the Electricity Board was decided against the plaintiff and, therefore, the plaintiff was not entitled to any decree; the appellate court also came to the conclusion that document regarding the authority of the plaintiff to file suit was withheld and, therefore, adverse inference was drawn and ultimately dismissed the appeal.

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It is submitted by learned counsel for the appellant that an application under Order XLI, Rule 27 CPC has been filed, wherein, a certified copy of the sale deed, which was executed in pursuance of the agreement Exhibit-1, regarding which, averments were made in the appeal, a certified copy whereof has been obtained and the said document was necessary for the

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parties; it was also claimed that it was registered society, however, the registration certificate and the bylaws could not be filed and, therefore, the appellant may be permitted to place copy of the sale deed and the registration certificate alongwith the bylaws as additional evidence.

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It was further submitted by learned counsel for the appellant that the trial court rejected the plea raised by the appellant based on the alleged inadmissibility of document (Exhibit-1); however, now in view of the additional evidence produced in this appeal, it is apparent that the land in question was to be used by the owner of the land i.e. Sheodev Lohiya and the plaintiff and the findings of both the courts below regarding the land in question is ex facie baseless and, therefore, the appeal deserves to be admitted. Further submissions were made regarding the consequence of a construction of shops by the defendant and the ensuing difficulties in using the way.

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I have considered the submissions made by learned counsel for the appellant.

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It is not in dispute that the appellant claiming ownership of/exclusive right in the land in dispute filed a suit against the Electricity Board and in the said suit vide Exhibit-A/1 a issue was framed as to whether the way was the private way of the appellant and the Court in the said suit came to the conclusion that shops were constructed on the said way and was being used by pubic and the same was not a private way and the issue was decided against the plaintiff-appellant, against which, appeal was filed before the District Court, Churu, which was also rejected. Though the said decision may not strictly operate as res judicata

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between the parties as the defendant herein was not a party to the said suit, however, so far as the appellant is concerned, the finding recorded in the said suit which became final can definitely be utilized by the defendant seeking estoppel against the appellant from claiming a similar right, which stood decided against the plaintiff in the earlier suit against the Electricity Board.

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So far as application under Order XLI, Rule 27 CPC is concerned, no valid reason has been indicated as to why the certified copy etc. could not be produced earlier. Merely indicating that the persons in charge at the relevant time could not produce the same cannot be a reason enough to allow additional evidence at this stage.

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Besides the above aspect both the courts below based on the oral evidence available on record came to the conclusion about existence of shops around the way and electricity transformer on the said way have recorded a finding of fact about the exitence of public way and consequently came to the conclusion that the plaintiff was not entitled to seek any right of private user in the said land. As the concurrent findings recorded by both the courts below cannot be said to be perverse in the facts and circumstances of the case, the same do not give rise to any substantial question of law in this second appeal.

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Consequently, there is no substance in the appeal and the same is, therefore, dismissed. No costs.

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(ARUN BHANSALI), J.

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A.K.Chouhan/-

Shri Oswal Srisangh Panchayat, Churu v. Lrs of Balkrishan Bagla

Case brief

What is this about?

What did the court decide?

Shri Oswal Srisangh Panchayat, Churu v. Lrs of Balkrishan Bagla

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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