Dismissed

Mainuddin v. Gordhan and Ors.

Rajasthan HC25 Apr 2018CSA/122/2016

Case brief

AI extract

What is this about?

In this second appeal against a civil judgment, the High Court of Rajasthan dismissed the appeal. The court upheld the lower courts' finding that the appellant failed to prove the existence of a window and door prior to purchasing the property in 2002, thus negating any easementary rights and confirming it was temple land. The appeal was dismissed for want of a question of law.

What did the court decide?

The appeal was dismissed with no substantial question of law being adjudicated, affirming the lower courts' rejection of the claim for easementary rights.

Mainuddin Vs Gordhan and Ors. — Property and Title | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 122 / 2016

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Mainuddin S/o Sh. Hanif Khan, By caste Musalman, Resident of Teerdharon Ka Chowk, Ginani Ke Pass, At present Kumharwada, Nagaur (Raj.)

¶4

----Appellant

¶5

Versus

¶6

Gordhan S/o Sh. Bheru Ram, By Caste Kumhar

¶7

Rewant Mal S/o Gordhan, By Caste Kumhar

¶8

Bhanwar Lal S/o Dhula Maharaj, By Caste Brahmin

¶9

Sanjay S/o Bhanwar Lal, By Caste Brahmin

¶10

Birju S/o Bhanwar Lal, By Caste Brahmin

¶11

Ramnath S/o Shankar Lal, By Caste Kumhar

¶12

Padam S/o Shankar Lal, By Caste Kumhar

¶13

Hari S/o Shankar Lal, By Caste Kumhar

¶14

Raju S/o Ramnath, By Caste Kumhar

¶15

Respondents No. 1 to 9 are all resident of Mohalla Kumharwada, Nagaur, Tehsil & District Nagaur.

¶16

----Defendant-Respondents

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Iimuddin S/o Hanif Khan, , By Caste Musalman, Resident of Teerdharon Ka Chowk, Ginani Ke Pass, At present Kumharwada, Nagaur (Raj.)

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Imamuddin S/o Sh. Hanif Khan, By Caste Musalman, Resident of Teerdharon Ka Chowk, Ginani Ke Pass, At present Kumharwada, Nagaur (Raj.)

¶19

----Plaintiff -Respondents

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For Appellant(s) : Mr. Harish Purohit

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JUSTICE DINESH MEHTA Order

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25/04/2018

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The present appeal under Section 100 of the Code of Civil Procedure has been filed by the appellant laying challenge to the judgment and decree dated 06.04.2016 passed by learned Additional District Judge No.2, Nagaur (hereinafter referred to as the ‘Appellate Court’), vide which the judgment and decree dated

¶24

(2 of 3)

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[CSA-122/2016]

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25.02.2009 passed by the Civil Judge (Jr. Division), Nagaur (hereinafter referred to as the ‘ Trial Court’) has been affirmed.

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Facts leading the appellant to approach this Court are that the appellant had filed a suit for permanent injunction against the defendants (respondents No.1 to 9) praying that they be restrained from closing the window and door in the northern side, which had been opened in the open land.

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The defendants opposed the suit by way of filing the written statement. On the basis of the pleadings of the parties, the following issues were framed by the Trial Court :-

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“1vk;k okni= ds in la[;k 1 esa of.kZr iM+kSlksa ds e/; fLFkr] oknhx.k ds ifjlj ds mRrj esa ljdkj Hkwfe o lkoZtfud xyh gS] ftlesa oknhx.k dk ,d njoktk o f[kM+dh cus gq, gSa \ Okknhx.k

¶30

2- vk;k mRrj njokts rFkk f[kM+dh dk mi;ksx gok jks”kuh o vkokxeu gsrq djus dk lq[kkf/kdkj oknhx.k dks izkIr gS \ oknhx.k

¶31

3- vk;k mDr ljdkjh Hkwfe o lkoZtfud xyh esa izfroknhx.k voS/k vfrØe.k djds fuekZ.k dk;Z djuk pkgrs gSa] ftldk mUgsa dksbZ vf/kdkj ugha gS \ oknhx.k

¶32

4- vk;k fookfnr ifjlj ds mRrj esa ljdkjh Hkwfe o lkoZtfud xyh u gksdj HkS:th dk pcwrjk o ifjØek yxkus dh txg gS \ izfroknhx.k

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5- vk;k oknh es fookfnr ifjlj ds mRrj dh rjQ dk njoktk o f[kM+dh] tcjnLrh ifjØek yxkus dh txg ij voS/k vfrØe.k djds fudkyk gS \ izfroknhx.k

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6- vk;k i;kZIr U;k;”kqYd ds vHkko esa nkok dkfcys [kkfjt gS \ izfroknhx.k

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7- vuqrks"k \ ”

¶36

After examining the documentary and oral evidence, learned trial court decided issues No.1 and 2 against the plaintiff and held that the plaintiff has failed to prove that the door and window in question had been opened prior to purchase of the house in the year 2002.

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In view of the aforesaid, the trial court has held that no easementary right has accrued to the plaintiff and that the land in

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(3 of 3)

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[CSA-122/2016]

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which the offending door and window had been opened is not public land and the same was rather land of temple being used for orbitary (ifjØek) .

¶41

In an appeal filed against the judgment and decree aforesaid, the appellate court after discussing the evidence and material thread-bare, affirmed the finding that no easementary rights are available to the appellant, as he has failed to prove that the door and window were existing on the date of purchase of the house in question.

¶42

Mr. Harish Purohit, learned counsel for the appellant laying challenge to the judgment and decree impugned, contended that courts below have erred in appreciating the material and evidence available on record, he however failed to point out any perversity in the finding or legal error.

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Having heard learned counsel for the appellant and upon perusal of the evidence and orders of the courts below, this Court finds that the concurrent findings of fact by the courts below that there is no easementary right in favour of the appellant as the window and door in question did not exist prior to purchase of house in question in 2002, do not deserve to be interfered with.

¶44

Finding no question of law, much less substantial question of law required to be adjudicated in the present appeal, the same is dismissed in limine.

¶45

(DINESH MEHTA), J.

¶46

Himanshu/- 36

Mainuddin v. Gordhan and Ors.

Case brief

What is this about?

What did the court decide?

Mainuddin v. Gordhan and Ors.

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

Coram

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