Dismissed

Smt.Babudi @ Smt.Rukma and Ors. v. President Pipa Shtriya Samast Niyati

Rajasthan HC9 Jan 2019CSA/90/2011

Case brief

AI extract

What is this about?

The High Court of Rajasthan in a second appeal limited to Section 100 CPC findings procedural delays and defects. The court dismissed the appeal, holding no substantial question of law existed as the lower courts' concurrent findings of fact were not perverse.

What did the court decide?

The appeal was dismissed with no interference in the judgments or decrees below.

Smt.Babudi @ Smt.Rukma and Ors. Vs President Pipa… — Property and Title | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Second Appeal No. 90/2011

¶3

Smt. Babudi @ Smt. Rukma W/o Late Jay Singh D/o Late Vijay Singh, B/C Rajput, Age about 56 years,

¶4

Sh. Anand S/o Late Jay Singh B/C Rajput, Age about 21 years,

¶5

Sh. Umaid S/o Late Jay Singh, B/C Rajput, Age about 18 years

¶6

All Residents of Ramdev Ji ki Gali, Near Ramdev Ka Mandir, Outside Chandpole, Jodhpur

¶7

----Appellants

¶8

Versus

¶9

President, Pipa Shtriya Samast Niyati Sabha through Pukhraj D. Parmar S/o Sh. Daulat Singh Parmar, Age about 60 years, R/o Darijiyon Ka Chowk, Jodhpur

¶10

----Respondent

¶11

For Appellant(s) : Mr. Basti Chand Bhansali

¶12

HON'BLE MR. JUSTICE P.K. LOHRA

¶13

Judgment

¶14

09/01/2019

¶15

Appellant-defendants have laid this second appeal under Section 100 CPC to assail judgment & decree dated 30^th of November, 2010, passed by Addl. District Judge (Fast Track No.4), Jodhpur (for short, ‘learned first appellate Court’), whereby learned first appellate Court has affirmed judgment and decree dated 13^th of October, 2004, passed by Addl. Civil Judge & Judicial Magistrate No.5, Jodhpur (for short, ‘learned trial Court’), allowing the suit filed by plaintiff-respondent.

¶16

Brief facts of the case are that respondent-plaintiff, President of Pipa Shtriya Samast Niyati Sabha laid a suit for

¶17

(2 of 5) [CSA-90/2011]

¶18

permanent injunction alongwith application for temporary injunction against appellant-defendants, inter-alia, stating therein that property of Sabha is situated near Vidhyashala School for which Patta was issued by the erstwhile Marwar State on 29.03.1909 and Sabha is in possession thereof. It is further averred in the plaint that for raising construction pits have already been dug for foundation but Jay Singh, having no concern or right over the property, is creating hindrance in construction work and wants to encroach upon the suit property of Sabha.

¶19

Appellant-defendants, who are decedents of said Jay Singh, filed written statement to the suit denying the averments of the plaint and disputed the title of plaintiff so also the map produced along with the plaint. They came up with the case that they are in old possession of the disputed land and when they started construction on the land of their possession and got dug the land for foundation, the persons of plaintiff-respondent stopped the work.

¶20

Learned trial Court, on the basis of the pleadings, framed two issues for determination. In support of their case, respondent-plaintiff examined two witnesses PW1 Pukhraj and PW2 Devraj and in documentary evidence produced four documents. In defence, defendants examined DW1 Raju Singh and DW2 Anand Singh and exhibited five documents. Finally, the learned trial Court, by its judgment & decree dated 13.10.2004 decreed the suit against appellant-defendants. Feeling aggrieved by the same, appellants preferred an appeal before the first

¶21

(3 of 5)

¶22

[CSA-90/2011]

¶23

appellate Court which was dismissed by the first appellate Court affirming the judgment & decree of learned trial Court.

¶24

Mr. Basti Chand Bhansali, learned counsel for the appellants, submits that the findings of learned Courts below are perverse and not in consonance and conformity with the evidence and other materials on record. Learned counsel would contend that both the Courts below have not examined the lis involved in the matter in right perspective and, while non-suiting the appellants, material facts were completely overlooked. Mr. Bhansali submits that even if there is a concurrent finding of fact, this Court is not loathed with the power to examine the perversity of the findings recorded by the Courts below. Mr. Bhansali further submits that an illiterate destitute widowed lady, who is not in possession of documents relating to title of the property wherein she had been living since her birth in the disputed property who shall be rendered shelter less under the decree seeks justice. Mr. Bhansali contended that the impugned judgments & decrees are vulnerable and therefore the appeal requires adjudication by this Court.

¶25

I have heard learned counsel for the appellants, perused the judgments of both the Courts below and scanned the record of the case.

¶26

Against the judgment & decree dated 30^th of November, 2010, passed by learned first appellate Court, present appeal was filed as late as on 17.03.2011, i.e. after the period of limitation,

¶27

(4 of 5)

¶28

[CSA-90/2011]

¶29

and that too with the defects such as without mentioning of valuation and court fee, the type of appeal whether first or second, filing illegible document and putting papers in a haphazard manner which defects were though later on cured but on most of the dates either none was present to represent the appellants or the matter was deferred at the request of counsel. In the pleadings of appeal attempt is sought to be made to stop execution of decree on the ground of mercy stating that the appeal is by an illiterate destitute widowed lady, who is not in possession of documents relating to title of the property wherein she had been living since her birth and even after her marriage and was not aware even about filing of litigation in her actual name Rukma Sodha, whose domestic name is Rukma, shall be rendered shelter less in the garb of decree.

¶30

Besides untenable grounds taken and even avoiding delay in filing the present appeal, upon perusal of the judgments rendered by both the Courts below, in my opinion, both the Courts below have not committed any error much less manifest error in appreciation of evidence. The finding of fact recorded by learned trial Court is based on sound appreciation of evidence and the learned first appellate Court, while examining the matter de novo in the light of available material, has fully concurred with the evidence and conclusions of the learned trial Court. Therefore, the instant one is a case wherein both the Courts below have recorded concurrent finding of fact based on proper appreciation of evidence. The legal position is no more res integra that in second appeal normally Court is not expected to interfere with the concurrent finding of fact unless it is shown that finding is

¶31

(5 of 5)

¶32

[CSA-90/2011]

¶33

perverse, contrary to evidence available on record, or recorded in ignorance of vital evidence. No such situation is forthcoming in the instant appeal. This being the position, I am constrained to observe that no question of law much less substantial question of law is forthcoming in the instant appeal requiring adjudication in exercise of second appellate jurisdiction. The so called proposed substantial questions of law are pure questions of facts and it is trite that while exercising second appellate jurisdiction, Court cannot enter into factual arena. In absence of any substantial question of law involved in present appeal, no interference is warranted in exercise of jurisdiction under Section 100 CPC.

¶34

In view of foregoing discussion, I find no merit in the instant appeal, and therefore, the same is accordingly dismissed.

¶35

(P.K. LOHRA),J

Smt.Babudi @ Smt.Rukma and Ors. v. President Pipa Shtriya Samast Niyati

Case brief

What is this about?

What did the court decide?

Smt.Babudi @ Smt.Rukma and Ors. v. President Pipa Shtriya Samast Niyati

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

Case details

Similar cases

Jassa Singh @ Jaswant Singh Vs State

Banwari Lal Vs Roshni and Ors.

Malaram Vs State of Rajasthan

Mala Vs Vedhehi Resort Private Ltd.

Sita Vs Devi Lal

Tapasvi Karan Singh Vs Parmanand and Ors.