Dismissed

Naresh Kumar v. Rsrtc and Anr.

Rajasthan HC25 Apr 2018CSA/46/2018

Case brief

AI extract

What is this about?

This second appeal challenged an order dismissing a suit for permanent injunction filed against a Road Transport Corporation. The High Court rejected the appeal, holding that the appellant failed to prove license over the land and could not restrain the respondent from constructing on its own vested land.

What did the court decide?

The appeal was rejected as it involved no question of law; the judgment and decree of the Appellate Court were upheld.

Naresh Kumar Vs Rsrtc and Anr. — Landlord and Tenant | 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. 46 / 2018

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Naresh Kumar S/o Tulsiram, Cast Agrawal, Residing At Mount Road, Abu Road, District Sirohi

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----Appellant

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Versus

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Rajasthan State Road Transport Corporation Jaipur Through Manager, Rajasthan State Road Trasnport Corporation, Abu Road, Depot, District Sirohi.

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Manager, Rajasthan State Road Transport Corporation, Abu Road, Depot, District Sirohi.

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----Respondents

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_____________________________________________________ For Appellant(s) : Mr. Shailesh Agarwal For Respondent(s) : Mr. Sunil Purohit

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JUSTICE DINESH MEHTA

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Judgment

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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 – plaintiff, being aggrieved of the judgment and decree dated 05.02.2018 passed by the learned Additional District Judge No.2, Abu Road, District Sirohi (hereinafter referred to as the ‘Appellate Court’), whereby he has reversed the judgment and decree dated 16.04.2014 passed by the learned Civil Judge (Junior Division), Abu Road, District Sirohi (hereinafter referred to as the ‘Trial Court’).

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The facts in brief, necessary for the adjudication of the present second appeal are that the appellant – plaintiff instituted a suit for permanent injunction against the defendants – respondents herein, interalia contending that he had been given a license to establish a cabin near Mount Abu Railway Line and the

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(2 of 5)

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[CSA-46/2018]

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same was continuing since 1992.

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It was asserted by the plaintiff that he had been regularly paying the license fee for such cabin to the concerned Municipality and was enjoying his rights peacefully until 27.07.2006, when the officers of the defendants informed him that the land adjacent to the cabin had been purchased by it, on which they would raise a boundary wall and other construction.

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The Trial Court decreed the suit of the plaintiff on 16.04.2014 and passed an injunction, restraining the defendants from raising construction, as the same would obstruct the plaintiff’s access to the cabin. The Trial Court also restrained the defendants from raising construction within 100 ft. from the Railway Line.

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Feeling aggrieved by the said judgment and decree, the defendants preferred an appeal before Additional District Judge No.2, Abu Road, District Sirohi, which was registered as Appeal No.57/2015 (16/2014) and allowed by the judgment and decree dated 05.02.2018. Learned Appellate Court after dealing with oral and documentary evidence available on record, set aside the findings and judgment and decree passed by the Trial Court and held that the defendants having purchased the land in question are free to construct a boundary wall or other construction in the manner they like.

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The Appellate Court has further observed that the plaintiff has failed to produce any documentary or other evidence showing that he was having a license to run the cabin on the disputed land.

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Mr. Shailesh Agarwal, learned counsel for the appellant

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(3 of 5)

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[CSA-46/2018]

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challenging the order impugned passed by the Appellate Court, contended that the appellant – plaintiff had produced before the Court the judgment and decree dated 31.01.2008 (Ex.3), passed by learned Civil Judge (Senior Division), Abu Road in his earlier suit filed against the Municipal Board, Abu Road, wherein it had been held that the defendant therein namely Municipality shall not eject the plaintiff without following due process of law.

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While referring to the said judgment and decree dated 31.01.2008, Mr. Agarwal contended that all the requisite evidence including the license, receipts of payment of license fee, water and electricity bill etc. had been placed in the said suit. While admitting the factual position that these documents were not placed on record of the present suit, he contended that the plaintiff was under bona fide belief that the Court shall rely upon the findings recorded by the Court in the said judgment and decree dated 31.01.2008 and would consider them after summoning the record of that case.

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Mr. Agarwal contended that if the Court was of the view that the plaintiff had failed to produce documents evincing his right or license of the cabin, it ought to have remanded the matter permitting the appellant – plaintiff to produce requisite evidence. He added that if the impending construction of the defendants is not stopped, it would obstruct the access to the plaintiff’s cabin.

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Mr. Sunil Purohit, learned counsel for the respondents, per contra, submitted that the Appellate Court has categorically recorded that the appellant – plaintiff has failed to produce any

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(4 of 5)

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[CSA-46/2018]

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documentary or oral evidence, proving his license over the disputed land. Mr. Purohit contended that the plaintiff’s concern is essentially that if the boundary wall is constructed on the open land purchased/allotted to the defendant – RSRTC, his right to use the Corporation’s land would be impaired.

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Drawing the attention of this Court towards the Commissioner’s report he contended that the plaintiff’s cabin was not in the line of other cabins and that the plaintiff had not produced any license or document to show that the land in question overlapped the area licensed to him, over which he has installed his cabin.

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He emphasised that the respondent – Corporation is free to raise construction on the land allotted to it and the plaintiff cannot restrain the respondents – defendants from raising construction on the land, which has lawfully vested in them.

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Having heard learned counsel for the parties and upon perusal of the material available on record, this Court is of the considered opinion that it was required of the plaintiff to prove that he is having license over the land, on which the Corporation is raising construction or boundary wall. The plaintiff cannot restrain the defendant from using and raising construction on its own land, merely because the ensuing construction would create hurdle in the access to his cabin.

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Arguments of Mr. Agarwal that as he had produced all the requisite documents in the proceedings of civil suit decided on 31.01.2008; and that the Appellate Court should have examined the record of said suit itself or remanded the matter to the Trial

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(5 of 5)

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[CSA-46/2018]

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Court; are absolutely baseless, rather preposterous.

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It is to be noticed that the earlier suit filed by the plaintiff was against Municipal Board, Abu Road, wherein the Court had directed the defendants not to remove the plaintiff’s cabin, without taking recourse to lawful means; whereas the present suit has been filed against the defendant – Road Transport Corporation restraining them from raising construction. The document filed in the said suit can neither be read in the present proceedings nor can they be relied upon with a view to prove the plaintiff’s rights, merely by producing a copy of the judgment dated 31.01.2008.

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The plaintiff’s purported easementary rights have no basis and even if they exist, the same cannot override or have precedence over the rights of the defendant – Corporation, in whom the land in question has duly vested.

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Careful scrutiny of the case shows that it has not been the plaintiff’s case that the Corporation was raising boundary wall or other construction on the land licensed to him or the land on which his cabin is situated.

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No injunction can be granted against a lawful owner of the land.

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No case for interference is made out in the findings and conclusions of the Court below.

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The appeal, involving no question of law is thus, rejected.

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(DINESH MEHTA), J.

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Anurag/54

Naresh Kumar v. Rsrtc and Anr.

Case brief

What is this about?

What did the court decide?

Naresh Kumar v. Rsrtc and Anr.

Case brief

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What did the court decide?

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