Appeal dismissed. The High Court held that no application under Order XLI, Rule 27 CPC was filed by the appellant. Concurrent findings of fact by courts below regarding the suit for injunction were not shown to be perverse, leaving no substantial question of law.
The appeal is dismissed as it has no substance.
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[CSA-82/2016]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Second Appeal No. 82/2016
Roop Chand S/o Ami Chand, By Cast Jain, Resident Of Punarwas Colony, Sagwada, Doongarpur.
----Appellant
Versus
----Respondents
For Appellant(s) : Mr. Kuldeep Mathur. Mr. Lakshya Singh Udawat. For Respondent(s) :
HON'BLE MR. JUSTICE ARUN BHANSALI
Order
15/03/2021
This appeal is directed against the judgment & decree dated 06.01.2015 passed by the Civil Judge (Sr. Division), Sagwada, District – Doongarpur (‘the trial court’) and judgment & decree dated 30.01.2016 passed by the Additional District Judge, Sagwada, District – Doongarpur (‘the first appellate court’), whereby the suit filed by the appellant for permanent and mandatory injunction was dismissed by the trial court and the appeal was dismissed by the appellate court, respectively.
The suit was filed for permanent injunction in relation to a plot for shop No. 193, size – 15 X 30 feet, said to have been allotted on 01.06.1989.
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[CSA-82/2016]
The suit was resisted by the defendants.
The trial court framed four issues. On behalf of the plaintiff,
though, affidavits of four witnesses were produced, however, PW-3 Dinesh did not appear for cross-examination and seven documents were exhibited. On behalf of the defendants, two witnesses were examined and five documents were exhibited.
After hearing the parties, the trial court came to the conclusion that the Patta (Exhibit-1) relied on by the plaintiff, issued in name of the plaintiff on 01.06.1989, did not indicate any boundaries and no material has been produced to identify the location of the plot allotted and based on its finding on the said aspect, dismissed the suit.
Feeling aggrieved, the appellant filed first appeal. The first appellate court after hearing the parties, reiterated the finding recorded by the trial court and dismissed the appeal.
Learned counsel for the appellant made submissions that the first appellate court was not justified in dismissing the appeal without dealing with the application filed by the appellant under Order XLI, Rule 27 CPC and that the finding recorded by the two courts below in the circumstances of the case is not justified.
Record of both the courts below was summoned.
A perusal of the record of the first appellate court, indicates that no application under Order XLI, Rule 27 CPC was ever filed by the appellant.
Learned counsel for the appellant based on the material available in his record attempted to make submissions that such application was filed, which submissions is against the record and a perusal of the material in possession of the counsel also indicates that the original application apparently prepared by the
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[CSA-82/2016]
counsel, remains in the record and has never been filed before the first appellate court.
In view thereof, the submission made in this regard, has no substance.
So far as the challenge laid down to the concurrent findings of fact recorded by the two courts below is concerned, learned counsel for the appellant failed to point out any perversity in the findings recorded by the two courts below so as to give rise to any substantial question of law.
In view of the above discussion, the appeal has no substance, the same is, therefore, dismissed.
(ARUN BHANSALI),J
15-PKS/-
2 issues framed by the court
Whether the lower courts were justified in dismissing the appeal based on concurrent findings of fact unchallenged by evidence of perversity.
Whether the non-filing of an application under Order XLI, Rule 27 CPC renders the dismissal unsustainable in law.
2 provisions across 2 enactments
Roop Chand
Rajesh @ Kaliya
Smt. Godawari
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
