Dismissed

Jaafar and Others v. Raisuddin through Lrs and Others

Rajasthan HC1 Nov 2022CSA/218/2015

Case brief

AI extract

What is this about?

The Rajasthan High Court disposed of the second appeal, affirming lower courts' findings that plaintiffs have a right to common use of chowk and stairs. Court held that concurrent findings of fact are binding unless based on no evidence or misreading.

What did the court decide?

The second appeal was disposed of; rights of plaintiffs for common use of chowk, gallery and stairs affirmed; no costs awarded.

Jaafar and Others Vs Raisuddin through Lrs and Others — Property and Title | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Second Appeal No. 218/2015

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Jaafar

¶4

Aleemuddin

¶5

Imamuddin

¶6

Salimuddin

¶7

Karimuddin All sons of Late Shri Bundu Khan, Surajpol Anaaj Mandi, Jaipur Raj.

¶8

Smt. Asgari W/o Barktullah, Pahadganj Ki Masjid, Near Bank, Jaipur

¶9

Smt. Akhtar W/o Late Bundu Khan, Surajpol Anaaj Mandi, Jaipur

¶10

Tahiruddin S/o Shri Bashiruddin, House No.- 4054, Jagannathshah Ka Rasta, Mohalla Chitewalan, Chowkdi Ramchandraji, Jaipur

¶11

Jiyauddin S/o Shri Bashiruddin, House No.- 4054, Jagannathshah Ka Rasta, Mohalla Chitewalan, Chowkdi Ramchandraji, Jaipur

¶12

----Appellant-Plaintiffs

¶13

Versus

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Raisuddin (Since Deceased) 1/1. Shakeela D/o Raisuddin, 1/2. Shameeb D/o Raisuddin, 1/3. Shabnam D/o Raisuddin,

¶15

1/4.Aqeela D/o Raisuddin,

¶16

1/5.Suraiyya D/o Raisuddin,

¶17

1/6.Ikramuddin S/o Raisuddin,

¶18

1/7.Maeenuddin S/o Raisuddin,

¶19

1/8.Shamimuddin S/o Raisuddin,

¶20

1/9.Anees S/o Raisuddin,

¶21

All residents of House No.- 4054, Jagannathshah Ka Rasta, Mohalla Chitewalan, Chowkdi Ramchandraji, Jaipur

¶22

Islamuddin

¶23

Rafiquddin

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Sultanuddin

¶25

Shafiquddin

¶26

Ateekuddin

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Azizuddin Respondent No.2 to 7 all S/o Shri Nizamuddin, Resident of House No.- 4054, Jagannathshah Ka Rasta, Chitewalan Ka Mohalla, Chowkdi Ramchandraji, Jaipur

¶28

----Respondent-Defendants

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(2 of 5)

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[CSA-218/2015]

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For Appellant(s) : Mr. Vimal Choudhary with Mr. Yogesh Tailor For Respondent(s) : None present

¶32

HON'BLE MR. JUSTICE SUDESH BANSAL

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Judgment

¶34

01/11/2022

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Appellant-plaintiffs (hereafter referred to ‘plaintiffs’) have filed this second appeal under Section 100 CPC assailing the judgment and decree dated 11.12.2014 passed in civil first appeal No.56/2008 by the Additional District and Sessions Judge No.2, Jaipur Metropolitan City, Jaipur whereby and whereunder dismissing the appeal affirming the judgment and decree dated 11.05.2002 passed in civil suit No.80/87 by the Additional Civil Judge (Junior Division) No.1, Jaipur City, Jaipur whereby and whereunder plaintiffs’ suit for prohibitory and mandatory injunction has been dismissed on merits.

¶36

Heard learned counsel for appellants and perused impugned judgments and record.

¶37

This is not in dispute between parties that the property, House No.4054 situated at Chowkdi Ramchandraji, Jaganath Shah Ka Rasta, Mohalla Chitewalan, Jaipur, was belonging to Azim Baksh and the same was partitioned between his successors Aladeen and Mst. Bismillah. The decree for partition dated 04.10.1948 in suit No.180/2000 has attained finality. Plaintiffs are successors of Aladeen and defendants are successors of Mst. Bismillah. Plaintiffs claimed that on the common chowk, defendants have raised construction of walls ABCD and narrowed down the gallery ( raus ). Plaintiffs alleged that defendants have

¶38

(3 of 5)

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[CSA-218/2015]

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raised construction of wall ABCD and one room including common gallery ( raus ) and the same is government land. Plaintiffs further claimed that defendants are inclined to raise encroachment over the common chowk, gallery (raus) and toiletes, therefore civil suit for prohibitory and mandatory injunction was filed.

¶41

Defendants filed written statement and contended that there is no dispute about common chowk and toiletes, but they stated that wall ABCD and room were made by them on their property. Further it was alleged that in respect of such construction earlier civil suit No.273/73 was filed which has been decided vide judgment dated 22.11.1979, which judgment has been affirmed in the first appeal vide judgment dated 22.10.1981, therefore, the issue in respect of mandatory injunction made by plaintiffs alleging that the portion is common has already been decided finally on merits and again challenge to same construction is hit by the principle of res-judicata.

¶42

Both courts below, on the basis of respective evidence of both parties, have concurrently observed that the construction made by defendants is not on the common chowk and that issue has already been decided in the judgment dated 22.11.1979, which has been affirmed in the first appeal vide judgment dated 22.10.1981.

¶43

As far as the issue of chowk, pol and stairs is concerned, there is no dispute between parties that the same are of common use. This court finds that once both courts below have already protected rights of plaintiffs to use the common chowk, pol and right to access through stairs, which have been observed to be of common use, hence plaintiffs cannot claim any grievance in that respect. As far as prayer of plaintiffs seeking demolition of

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(4 of 5)

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[CSA-218/2015]

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construction of wall abc is concerned, the issue has already been decided in the previous suit No.273/73 vide judgment dated 22.11.1979. The fact findings recorded by courts below are based on appreciation/re-appreciation of evidence on record. It is observed that defendants also have not challenged the finding of fact recorded by courts below.

¶47

In case of State of Rajasthan v. Shiv Dayal [(2019)8 SCC 637] , the Hon’ble Supreme Court held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Hon’ble Court held as under:-

¶48

“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). ”

¶49

In another case C. Doddanrayana Reddy and Ors. Vs.

¶50

C. Jayarama Reddy and ors. [(2020)4 SCC 659] , wherein

¶51

the Hon’ble Supreme Court has observed that where two courts have reached a finding which is not based upon any misreading of material documents, nor is recorded against provisions of law and neither can it be said that any Judge acting judiciously and reasonably could not have reached

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(5 of 5)

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[CSA-218/2015]

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such a finding, then High Court is not required to interfere with such fact findings while exercising its jurisdiction under Section 100 CPC.

¶55

This Court finds that in respect of chowk, pol and stairs, rights of plaintiffs for common use have already been observed by the trial court in its judgment dated 11.05.2002 which has been affirmed in the first appeal vide judgment and decree dated 11.12.2014. Defendants have not assailed such observations, recorded by two courts below, therefore this Court without interference in the impugned judgments, affirms the rights of plaintiffs for common use of chowk, gallery and stairs as observed in the impugned judgments.

¶56

With the aforesaid observation, the second appeal is disposed of. No costs.

¶57

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

¶58

Record of both courts below be sent back forthwith.

¶59

(SUDESH BANSAL),J

¶60

TN/64

Jaafar and Others v. Raisuddin through Lrs and Others

Case brief

What is this about?

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Jaafar and Others v. Raisuddin through Lrs and Others

Case brief

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