Dismissed

Smt Teeju Devi and Others v. Mukant Singh Alias Mukand Ram

Rajasthan HC2 Aug 2022CSA/144/2011

Case brief

AI extract

What is this about?

In this second appeal, the High Court dismissed the challenge to the judgment declaring the respondent-plaintiff's easementary right of way. Upholding concurrent findings of fact below that the plaintiff had used the path for over 35 years with no alternative, the Court held the appeal devoid of merits.

What did the court decide?

The second appeal is dismissed with no order as to cost; record sent back forthwith.

Smt Teeju Devi and Others Vs Mukant Singh Alias… — Specific Performance | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 144/2011

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Smt Teeju Devi widow of Mahaveer @ Fatta

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Shrawan S/o Shri Premaram,

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Smt. Meera Devi widow of Premram

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All R/o Village Jerathi, Tehsil & District Sikar (Raj.)

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----Appellant-Defendants

¶8

Versus

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Mukant Singh Alias Mukand Ram s/o Shri Goruram, R/o Dhani Khud, Tan Jerathi, Tehsiol & District Sikar (Raj.)

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----Respondent-Plaintiff

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For Appellant(s) : Mr. Amit Singh Shekhawat For Respondent(s) : Mr. Ashok Sharma

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HON'BLE MR. JUSTICE SUDESH BANSAL Judgment

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02/08/2022

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Appellant-defendants have filed this second appeal under Section 100 of C.P.C, assailing the judgment and decree dated 12.01.2011 passed in civil first appeal No.(76/2007) 100/2008 by Additional District Judge, No.1, Sikar affirming the judgment and decree dated 11.09.2007 passed in civil suit No.94/2003 (174/2001) by Additional Civil Judge (Jr.D.) No.1, Sikar whereby and whereunder respondentplaintiff’s suit for permanent injunction and declaration has been decreed and the trial court has passed the following decree:-

¶15

“वादी दारा प ् रप्प वाद पत्र पत्र बापत्र बप ्रस ाई स्थाई नष्ई निषेधानिषेध ा ज व उद ञा व उद घ्ञा व उद घोषव उद घोषणा स्थाई नउद घोषणा किय् ण ा किये ज स ् थाई निस् ज ा ने सुखस्था ई नउद घोषण ा किर प्रस्थाई नपवादीगव उद घोषणउद घोषणा कि्स्थाई नवरुद्ध ्रसवीउद घोषण ा किर स्थाई नउद घोषणा किया ण ा किये जउद घोषणा किर, उन्हे आद्स्थाई नशिप स्थाई नउद घोषणा किया ण ा किये जपा हह स्थाई नउद घोषणा किवादपत्र उद घोषणा कि् स संलग स्थाई नि स्थाई न िशिा मे ें अ स ंउद घोषणा किप रा्रसपा ए. उद घोषणा कि्. एल. णा किये ज्. आई. एच. णा किये जी. मे स्थाई नउद घोषणा किसी परह उद घोषण ा कि ें अवर्ञा व उद घोई निषेधउतपन् स्थाई नि स्थाई निहनहीं उद घोषणा किरे प ा ऐसा उद घोषणा कि्ञा व उद घोई उद घोषणा किोतय स्थाई निहनहीं उद घोषणा किरे स्थाई नणा किये जसस् वादी उद घोषणा कि्ञा व उद घो ें अप स ् थाई निमउद घोषण ा कि स्थ ा ई निप व उद घोषणा किोस्थाई नष भ स्थाई नम मे आ स ् ण ा किये ज स ् थाई निमे उद घोषणा कि्ञा व उद घोई ें अस्स्थाई नवई निषेधा उतपन् स्थाई निह्ञा व उद घो । त ा उक्त रा्रसपा मे वादी उद घोषणा कि्आवागम स्थाई निह्प् स् ज ा ने सुखस्था ई नउद घोषण ा किर उद घोषणा किख ञा व उद घ्ञा व उद घोषव उद घोषणा उद घोषणा किख ण ा किये जपी हह। वई निषेधाा पक्षउद घोषण ा किरा स ् प स्थ ा ई नि-ें अप स्थ ा ई नि वह स्थाई निउद घोषणा किर्गे। उक्ता स् थाई निार स्थाई नर ड ि ख पचाा पत्र बाया

ण ा किये जये।”

(2 of 4)

[CSA-144/2011]

Heard learned counsel for appellants and perused impugned judgments and material available on record.

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It appears from the record that respondent-plaintiff filed a civil suit for permanent injunction and declaration of easementary right to have access on the way for egress and ingress to his house and the agricultural land situated in Khasra No.1082

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Learned counsel for the appellant-defendants opposed the suit on the ground that plaintiff has an alternative way and plaintiff’s has no entrance through the way in question.

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Learned trial court after appreciating the evidence of both parties has concluded that plaintiff has proved the existence of the gate and way in question at site, which is further corroborated by the report of Court Commissioner ( Exhibit-15 ). The plaintiff has adduced ample evidence to prove that he is using the way in question since 30-35 years. There is no alternative way available to the plaintiff, the trial court has declared easementary rights of plaintiff in his favour and has restrained the defendants not to obstruct in use of the way in question vide impugned judgment dated 11.09.2007.

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Feeling aggrieved by the impugned judgment, the defendant preferred first appeal, the first appellate court after hearing the appeal on merits observed that even in the evidence, defendants themselves have admitted that the road has already been constructed on the way in question and the plaintiff is having access through this way since more than 40 years.

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In that view of the admission, the first appellate court observed that the plaintiff has proved his easementary rights over the way in question and the gate on the way in question is existed to have access to his agricultural land as well as houses constructed on the land of Khasra No.1082. Thus, the trial court has not committed any error in decreeing the plaintiff’s suit. Accordingly, the first appeal has been

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(3 of 4)

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[CSA-144/2011]

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dismissed on merits vide impugned judgment and decree dated 12.01.2011.

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It appears that both courts below have considered the evidence on record and after appreciating the evidence have recorded fact finding that the way in question is situated at the site and the same is in use of the plaintiff since more than 35 years as such the declaration of the easementary rights has been made and the appellantdefendants have restrained not to obstruct/close the gate and way in question. Findings of fact are the province of the trial court and the first appellate court and the same are not required to be interfered until and unless the same are perverse and suffers from jurisdictional error or misreading/non-reading.

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Learned counsel for appellant-defendants has not been able to prove his case nor point out any perversity nor make out any substantial question of law in respect of the judgment and decree passed by the trial court as also the appellate court. The conclusion of the courts below are based on findings of fact concurrently.

¶30

The Hon'ble Supreme Court in C.Doddanarayana Reddy Vs. C.Jayarama Reddy [(2020) 4 SCC 659] , while discussing the jurisdiction of the High Court to interfere with the finding of fact under Section 100 CPC has held that though the High Court could have taken different view acting as the trial Court but once, two Courts below have returned finding which is not based upon any misreading of material documents, nor against any provision of law neither could it be said that any judge acting judicially and reasonably could have reach such a findings, then, the Court cannot be said to have erred. Relying upon the previous judgment the Supreme Court has held as under:-

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(4 of 4)

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[CSA-144/2011]

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"Recently in another judgment reported as State of Rajasthan v. Shiv Dayal [(2019)8 SCC 637] , it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

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“16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43). ”

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The upshot of discussions made hereinabove is that the second appeal is devoid of merits and the same is hereby dismissed.

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No order as to cost.

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Record be sent back forthwith.

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Stay application and any other pending application(s), if any, stand(s) disposed of.

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(SUDESH BANSAL),J

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TN/97

Smt Teeju Devi and Others v. Mukant Singh Alias Mukand Ram

Case brief

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Smt Teeju Devi and Others v. Mukant Singh Alias Mukand Ram

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