Second appeal by a plaintiff challenging dismissal of his suit for injunction by the First Appellate Court. The High Court held that the findings on facts regarding municipal permission, construction authorization, and right of way were conclusive and no substantial question of law arose, dismissing the appeal.
Second appeal dismissed.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Second Appeal No.475/2012
Chatrabhan Singh, S/o Col Shri Girdhar Singh, aged about 80 years, b/c Gurjar, R/o Mandi Atalband, District Bharatpur (Rajasthan)
...Appellant-Petitioner
Versus
1/1 Smt. Prem, W/o Late Shri Devi Sharan, R/o Near Dhauji Ki Haveli, Mandi Atalband, District Bharatpur.
3/1 Smt. Hemlata, W/o Late Shri Mohan
3/2 Rekha, D/o Late Shri Mohan
3/3 Kalpana, D/o Late Shri Mohan
3/4 Gaurav, S/o Late Shri Mohan
3/5 Pradeep, S/o Late Shri Mohan
All b/c Brahman, R/o Near Dhauji Ki Haveli, Mandi Atalband, District Bharatpur.
...Respondents
For Appellant(s) : Mr. Sudesh Bansal
For Respondent(s) : Mr. B.K. Sharma
HON'BLE MR. JUSTICE ALOK SHARMA
Order
18/01/2018
(2 of 3)
[CSA-475/2012]
Heard the counsel for the appellant-plaintiff (hereinafter ‘plaintiff’) and the respondents-defendants (hereinafter ‘defendants’) and perused the impugned judgment and decree dated 27.07.2012 passed by the Additional District Judge No.1 Bharatpur upsetting and setting aside the judgment and decree dated 10.02.1998 passed by the Civil Judge (Junior Division) and Judicial Magistrate, First Class, Bharatpur by which the plaintiff’s suit for perpetual as also mandatory injunction had been decreed.
The case of the plaintiff before the Trial Court was with regard to the alleged unauthorized construction of toilets on land belonging to the Nagar Parishad, Bharatpur. The Trial Court held that the construction of the toilets by the defendants did not appear to be over land in their ownership but over land belonging to the Nagar Parishad, Bharatpur which plaintiff had used over the years to access his residence and the construction was unauthorized. It decreed the plaintiff’s suit requiring the removal of the toilets. The Appellate Court on appeal by the defendant under Section 96 CPC has instead held that the construction of toilets as Sulabh toilets by the defendants was made with the permission of the municipalities and no obstruction of any public road used by the plaintiff or otherwise obtained. So holding the judgment and decree of the trial court was set aside and the plaintiff’s suit dismissed.
I am of the considered view that findings of the First Appellate Court are of fact based on appreciation of evidence laid in the course of trial. That the Appellate Court had the jurisdiction
(3 of 3)
[CSA-475/2012]
to do. Its conclusions/findings as the last court of fact cannot be interfered with as no substantial question of law in this second appeal has been made out in the facts of the case.
Aside of the aforesaid, the suit for perpetual and mandatory injunction had been laid by the plaintiff not with regard to any of his individual legal rights but on a matter of purported right of way. The very maintainability of the suit as admittedly laid by resort to Order 1 Rule 8 CPC was doubtful. Be as it may, it stands dismissed by the Appellate Court.
This second appeal is accordingly dismissed.
(ALOK SHARMA) J.
Himanshu/160.
2 issues framed by the court
Whether the findings of fact recorded by the First Appellate Court on jurisdiction and permission to construct toilets can be interfered with by a second appeal.
Whether a suit for perpetual and mandatory injunction is maintainable in respect of a matter of purported right of way.
2 provisions across 1 enactments
Chatrabhan Singh
Devi Sharan
Hari
Mohan
Nagar Parishad, Bharatpur
Allokh Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
