Dismissed

Ram Babu v. Cheetriya and Others

Rajasthan HC4 Jul 2022CSA/246/2015

Case brief

AI extract

What is this about?

This second appeal against a permanent injunction decree was dismissed. The court held that the lower courts lawfully recorded findings that a 12-foot way exists and serves as an easementary right for the plaintiffs, and no substantial question of law arose to warrant interference.

What did the court decide?

The second appeal was dismissed; record of both courts sent back.

Ram Babu Vs Cheetriya and Others — Property and Title | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 246/2015

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Ram Babu S/o Shri Bhoori Singh, R/o Chiksana, Tehsil & District Bharatpur (Raj.)

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----Appellant-Defendant

¶5

Versus

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Cheetriya S/o Shri Hargovind (deceased)

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1/1. Suresh Chand S/o Late Shri Cheetriya

¶8

1/2. Siyaram S/o Late Shri Cheetriya

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1/3. Dalchand S/o Late Shri Cheetriya

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1/4. Sunil S/o Late Shri Cheetriya

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1/5. Santosh S/o Late Shri Cheetriya

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All R/o Chiksana, Teshil & District Bharatpur (Raj.)

¶13

----Respondents/Plaintiffs

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For Appellant(s) : Mr. Prahlad Sharma For Respondent(s) :

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Judgement

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04/07/2022

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Appellant-defendant has preferred this second appeal under Section 100 of CPC against the judgment and decree dated 15.01.2015 passed in Civil First Appeal No.08/2007 by the Additional District Judge No.2, Bharatpur, dismissing the appeal and affirming the judgment dated 30.05.2007 passed in Civil Suit No.08/2005 by the Civil Judge (Junior Division) Bharatpur, whereby and whereunder respondents-plaintiffs’ suit for permanent injunction has been decreed against the appellant in the following manner:-

¶19

"अतः वाद वादी ववरुद्ध प्रवतवादी दी सवीस्वीकार वस्वीकर किया िय ा जस्वीकर प्रवतवादी स्वीकतिवादी कोर कियह

¶20

प ा बं द वस्वीकर किया िय ा जता ह स्वीक वह दी सवर कियम अथवा अपाने वस्वीकसी एिया जेट स्वीके माधर कियम से

¶21

(2 of 4)

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[CSA-246/2015]

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वादी स्वीके गतिवादी कोत तरफ पापरबं पाड़ने वाले रादी सते स्वीकतिवादी कोबं द स्वीकरने से प्रवतबंदविबंधित रहे व इस रादी सते स्वीके उपार कियतिवादी कोग व उपाभतिवादी कोग स्वीकरने मे वादी स्वीकतिवादी कोस्वीकतिवादी कोई रुस्वीकावट पा दा नह स्वीकरे । खरा् पाक्षस्वीकारान अपाना अपाना वहन स्वीकरेगे। तदन सार पाररा वरचा डि मपवत्व हतिवादी को।"

¶24

Heard learned counsel for appellant and perused the record.

¶25

Learned counsel for appellant has argued that plaintiffs have an alternate way for having ingress/egress to their land of Khasra No.1074 and the way in question is the personal way of defendant, hence the trial court and the first appellate court have committed illegality and jurisdictional error in passing the impugned decree for permanent injunction against the appellant.

¶26

Having heard learned counsel for appellant and on perusal of record, it appears that plaintiffs claimed permanent injunction alleging that the way in question is situated towards the eastern side of the plaintiffs’ land of Khasra No.1074 and the appellantdefendant, in his written statement denied the existence of the way in question. It is not the case of defendant in his written statement before the trial court that the way in question exists at site and the same is exclusive and personal way, to be used only by the defendant. Thus, the argument of counsel for appellant, is not liable to be sustained at the stage of second appeal, being unfounded from pleadings.

¶27

As far as, the existence of way at site in question is concerned, both courts have recorded fact findings on the basis of appreciation of evidence that 12 feet wide way exists towards the eastern side and that is the only way for plaintiffs to have their access. The defendant and his witness DW.3 in their crossexamination do not dispute about the existence of way.

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(3 of 4)

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[CSA-246/2015]

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It is also on record that at one point of time, the Gram Panchayat granted permission to the defendant to raise some construction, however, on filing the appeal, that permission has been dismissed by the administration. It has been held that plaintiffs, by their own evidence and with the support of the document (Exhibit 1) have proved that they are using the way for more than 25-30 years and they have an easementary right to use the way.

¶31

The fact findings in relation to the way in question, which are based on appreciation of evidence of both parties and counsel for appellant could not point out any perversity, jurisdictional error or any ground that findings are based on misreading/non-reading of the evidence or passed on any inadmissible piece of evidence.

¶32

The Honb’le Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722] and catena of other judgments passed in case of Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [(2001) 9 SCC 521], Thulasidhara & Anr. Vs. Narayanappa & Ors., [(2019) 6 SCC 409], Bholaram Vs. Ameerchand, [(1981) 2 SCC 414], Ishwar Das Jain Vs. Sohan Lal, [(2000) 1 SCC 434], State of Madhya Pradesh Vs. Sabal Singh & Ors., [(2019) 10 SCC 595] and D. Doddanarayan Reddy and Ors. Vs. C. Jayarama Reddy and Ors. Reported in [(2020) 4 SCC 659] has categorically held that at the stage of second appeal, fact findings recorded by two Courts below, based on appreciation of evidence, should be honoured and must not be interfered with unless and until there is some perversity, illegality or jurisdictional error which leads manifest injustice. Once findings of fact recorded by two Courts below are justified and based on due appreciation of evidence, re-appreciation of evidence at the stage of

¶33

(4 of 4)

¶34

[CSA-246/2015]

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second appeal in order to draw a different conclusion is not warranted. The scope of second appeal is confined to examine substantial question of law, which are sine qua non to exercise powers under Section 100 of CPC.

¶36

In present case, on appreciation of findings of fact, which suffers from no perversity, no substantial question of law arises, in absence of any substantial question of law, this second appeal is not liable to be entertained and the same is hereby dismissed.

¶37

Any other pending application(s), if any, also stand(s) disposed of.

¶38

Record of both courts be sent back.

¶39

There is no order as to costs.

¶40

(SUDESH BANSAL),J

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SACHIN /115

Ram Babu v. Cheetriya and Others

Case brief

What is this about?

What did the court decide?

Ram Babu v. Cheetriya and Others

Case brief

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