The High Court dismissed three connected civil second appeals. The court found that lower courts correctly held a gully existed between neighbors' properties for common use and that no evidence proved encroachment or exclusive title claims, rendering no substantial question of law under Section 100 CPC.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Second Appeal No. 311/2015
Gajraj Singh S/o Damodar Singh, R/o Neem Darwaja, Bharatpur.
----Appellant-Defendant
Versus
----Respondents-Plaintiffs
Connected With
S.B. Civil Second Appeal No. 305/2015
Gajraj Singh S/o Damodar Singh, R/o Neem Darwaja, Bharatpur.
----Appellant-Defendant
Versus
----Respondents-Plaintiffs
S.B. Civil Second Appeal No. 369/2015
----Plaintiffs-Appellants
Versus
Gajraj Singh S/o Damodar Singh, R/o Neem Darwaja, Bharatpur.
----Defendant-Respondent
For Appellant(s) : Mr. Alok Garg For Respondent(s) : Mr. Rahul Sharma
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HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
11/07/2022
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injunction. The first appellate court has passed a decree for prohibitory injunction against the defendant to maintain the status of the gully in question, having 8 feet width, intact but dismissed the plaintiff’s prayer for seeking mandatory injunction, to remove the construction of defendant, alleged to be raised in the gully . The first appellate court, in its judgment dated 06.05.2015, categorically observed that plaintiff has not clarified as to what nature of construction has been raised by the defendant in the gully in question, hence in absence of specific details and evidence, no decree for mandatory injunction was passed.
10 It appears from record that plaintiff-Govind Singh instituted a Civil Suit for prohibitory and mandatory injunction in the year 2002, alleging inter alia that his residential house is situated at
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Neem Darwaja, Bharatpur, which was purchased by Smt. Krishna Kumari through registered sale deed dated 03.05.1979 from one Smt. Prakash Devi. Plaintiff is the power of attorney holder of Smt. Krishna Devi, who has also been made party as plaintiff No.2. It has been averred in the plaint that towards western side of plaintiff’s house, the residential house of defendant is situated after leaving 8 feet wide gully . Plaintiff averred that in this 8 feet wide gully, windows, ventilators etc. of plaintiff’s house have their opening and this gully is of common use between both parties. Plaintiff averred that during winter breaks of the month of December, 2000, the defendant has raised some construction in the northern side of this gully and has closed the gully by putting a gate on two pillars. Hence, the present suit was instituted making a prayer that defendant be restrained by way of prohibitory injunction, not to close the existence of the gully in question and to maintain its existing position as well as plaintiff’s prayer for issuance of decree for mandatory injunction, seeking removal of the illegal construction/encroachment alleged to be made by defendant in the north side of the gully in question. 11. Defendant-Gajraj Singh submitted written statement and while denying plaintiff’s case for prohibitory and mandatory injunction, submitted his counter claim, contending therein that there is no gully of common use between the houses of both parties. In fact, the gully in question is included in the purchased portion of his house. Defendant- Gajraj Singh contended in his written statement that his mother namely, Smt. Sushila Devi purchased the plot through registered sale deed dated 02.09.1975, and since 1975, their construction is there. Defendant categorically disputed and denied the existence of gully
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and right of plaintiff to have his windows, ventilators etc. opening towards this gully . The defendant made a counter claim to the effect that plaintiff be restrained not to open any windows, ventilators, n ala , parnala and gate in the gully and may not obstruct in raising construction by the defendant adjoining to the plaintiff’s southern wall.
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is no evidence to show that this gully is a common or public lane. The trial court observed that plaintiff has not produced sufficient evidence to show as to what nature of encroachment/construction has been raised by the defendant on the northern side of the map in question.
"फलस्वरूप व्वदिद्वान अ अधन अधीनसधीनस्थ ्थ नसिद्वासलस दिद्वाय द्वारिद्वा पिद्व ा य द्वारत वनरास ्व वडिकक्री वी दिनिद्वािनांक 21.06.2006 अपिद्वासत वकसिद्वा जिद्वातिद्वा हह तधीनस्थिद्वा अपन अधीलिद्वाधीनस ् थ/्विद्वाी दिन अधीकक्री अपन अधील आवशिनांक रूप स स्वन अधीकिद्वाय द्वारकक्री जिद्वाकय द्वार
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प्रवत्विद्वाी दिन अधीगर क को प्रवतत ि बव अधत वकसिद्वा जिद्वातिद्वा हह वक य द्वारिद्वासतिद्वा ज को व्व्व िद् व ाी दित हह तधीनस्थिद्वा ्वतामिद्वान म उसकिद्वा ज को स्वरुप हह उसकक्री वसधीनस्थवत ी दिननों पक्ष सधीनस्थिद ् वात तिबनिद्वास य द्वारख ग । श ष अनशत कोष क सके समतिब्थ न अध म ्व िद्वाी दिन अधीकक्री अपन अधील ख़िद्व ा य द्वारज कक्री जिद्वातन अधीहह। वडिकक्री प परिद्व ा वनसमिद्वानशसिद्वाय द्वार तिबनिद्वासिद्वा जिद ् वा । वनरास प्रवत क सिद्वाधीनस्थ व्वदिद्वान व्व परिद्वाय द्वा र ्थ नसिद्वासलस कक्री पतिद ् वालन अधीप्र वषत ह को।"
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ownership over the area of gully in question. Secondly, both courts have concurrently found that there exists 8 feet wide gully between houses of both parties. As per the site report of the Commissioner, the use of the gully by the plaintiff, having its windows, ventilators, gate, nala and parnala etc. have been noticed. This gully is situated between houses of both parties and obviously, the same has been left for common use by both parties though not for the public at large as a public lane. The claim of defendant to use the gully in question exclusively and seeking prohibitory injunction against the plaintiff for opening his gate, windows, ventilator, nalla & parnala in this gully as well as seeking permission to raise construction adjoining to the plaintiff’s western wall, has rightly been declined by both courts. The finding of fact recorded in relation to the existence of the gully by both courts is based on due appreciation of the evidence of both parties. Learned counsel for appellant-defendants could not point out any perversity or jurisdictional error or that the fact findings are based on misreading/non-reading of evidence or based on any inadmissible peace of evidence. Therefore, on the basis of such fact findings, no substantial question of law arises in the second appeal preferred by the defendant. 21. As far as, the Civil Second Appeal preferred by the appellantplaintiff, is concerned, neither in the pleadings of plaint nor in supportive documents, produced by plaintiff, the details of the encroachment/construction alleged to be raised by the defendant in northern side of the gully in question, is mentioned. Mere reference in the plaint that by putting two pillars, a gate has been affixed and the gully has been closed, have not been substantiated by any evidence. In counter to that, it has come on record that
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the construction of defendant is situated since 1975, it means prior to purchase of the plot by plaintiff. The plaintiff purchased the plot in question through sale deed dated 03.05.1979. There is no specific evidence from the side of plaintiff as to when and what type of construction was raised by the defendant in the gully in question.
This Court during course of arguments, put a query from the counsel for appellant-plaintiff to show about the nature of encroachment/construction, however, no positive and satisfactory response to that query has been given. The first appellate court has observed in its judgment and decree dated 06.05.2015, while decreeing the plaintiff’s suit for prohibitory injunction and declining the prayer for mandatory injunction to the effect that the nature of construction in gully is not clear on record, therefore, a decree for mandatory injunction cannot be passed in a mechanical and routine manner. However, the first appellate court, while concurring with the fact findings of the trial court that there exists a gully between the houses of both parties, has passed decree for prohibitory injunction in favour of plaintiff and against the defendant.
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purview of substantial question of law. In order to exercise the scope of Section 100 of CPC, involvement/formulation of substantial question of law is sine qua non. Otherwise also, it is a case of concurrent findings of facts even if erroneous cannot be disturbed in exercise of powers under Section 100 CPC as has been held 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] and State of Madhya Pradesh Vs. Sabal Singh & Ors., [(2019) 10 SCC 595], D. Doddanarayan Reddy and Ors. Vs. C. Jayarama Reddy and ors. Reported in [(2020) 4 SCC 659]
(SUDESH BANSAL),J
SACHIN /88-90
2 issues framed by the court
Whether the concurrent findings of fact regarding the existence of a gully and lack of encroachment evidence warrant interference under Section 100 CPC.
Whether a substantial question of law arose in the second appeals filed by both parties.
Colour shows how this judgement treated each authority
Kondiba Dagadu Kadam Vs. Savitribai Sopan GujarReferred¶72
Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722] · Who else cites this
Pakeerappa Rai Vs. Seethamma Hengsu & Ors.Referred¶72
Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [(2001) 9 SCC 521] · Who else cites this
Thulasidhara & Anr. Vs. Narayanappa & Ors.Referred¶72
Thulasidhara & Anr. Vs. Narayanappa & Ors., [(2019) 6 SCC 409] · Who else cites this
Bholaram Vs. AmeerchandReferred¶72
Bholaram Vs. Ameerchand, [(1981) 2 SCC 414] · Who else cites this
Ishwar Das Jain Vs. Sohan LalReferred¶72
Ishwar Das Jain Vs. Sohan Lal, [(2000) 1 SCC 434] · Who else cites this
State of Madhya Pradesh Vs. Sabal Singh & Ors.Referred¶72
State of Madhya Pradesh Vs. Sabal Singh & Ors., [(2019) 10 SCC 595] · Who else cites this
D. Doddanarayan Reddy and Ors. Vs. C. Jayarama Reddy and ors.Referred¶72
D. Doddanarayan Reddy and Ors. Vs. C. Jayarama Reddy and ors.
Gajraj Singh
Govind Singh
Krishna Kumari
Sudeesh Bansal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
