Dismissed

Roshan Lal and Ors. v. Om Prakash and Ors.

Rajasthan HC27 Jan 2022CSA/581/2006

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal in a suit for permanent injunction. The court held that the purported agreement was inadmissible as unregistered and insufficiently stamped, and since there were no pleaded easementary rights or framed issues on them, the lower courts' concurrent findings of fact regarding the non-existence of a way could not be interfered with. The appeal was dismissed.

What did the court decide?

The second appeal was dismissed, and the stay application and all pending applications were also dismissed.

Roshan Lal and Ors. Vs Om Prakash and Ors. — Civil Procedure and Limitation | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 581/2006

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Roshan Lal S/o Shri Babulal, R/o Roopwas (Deceased)

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1/1. Ashok Kumar S/o Late Shri Roshan Lal,

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1/2. Raj Kumar S/o Late Shri Roshan Lal,

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1/3. Asha Kumari W/o Shri Harishankar, R/o Atitai Nagaria, Agra

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1/4. Meena Kumari W/o Kishan D/o late Shri Roshan Lal, R/o Atitai Nagaria, Agra

¶8

Dao Dayal S/o Shri Babu, R/o Roopwas (Deceased)

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2/1. Smt. Sampati Devi W/o Late Shri Dao Dayal

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2/2. Smt. Usha Devi W/o Amrish Chandra Sharma, R/o C.S.I. Office Idgah, Agra

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2/3. Smt. Manju Devi W/o Sushil, Railway Driver, Lambi Balsad, Gujrat

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2/4. Smt. Anita Devi W/o Sushil Dixit, Naglapatti, Agra

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2/5. Hariom Parashar S/o Late Shri Deo Dayal, R/o Roopwas, Bharatpur

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2/6. Harish Chand Sharma (Parashar) R/o Roopwas, Bharatpur ----Appellants/Plaintiffs

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Versus

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Om Prakash S/o Nirotilal, Presently Resident of Office CMHO (Chief Medical And Health Officer), Old Janana Hospital, Bharatpur

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Om Prakash S/o Shri Jagannath, R/o Uccha Prathamik Vidhyalaya, Bagod Colony, Roopwas

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Smt. Ramdulari D/o Jagannath W/o Lal Chand, Presently R/o Ucchen Teh. Roopwas, Bharatpur

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----Respondents-Defendants

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For Appellant(s) : Mr. Shailesh Prakash Sharma, Advocate (through VC)

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For Respondent(s) : Mr. Rahul Sharma, Advocate (through VC)

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HON'BLE MR. JUSTICE PRAKASH GUPTA

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(2 of 4) [CSA-581/2006]

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Judgment

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27/01/2022

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This Civil Second Appeal has been filed by the appellants - plaintiffs (for short, 'the plaintiffs') against the judgment dated 3.8.2006 passed by Addl. District Judge No.2, Bayana (for short, 'the first appellate court') in Civil Regular Appeal No. 118/2002, whereby the appeal filed by the plaintiffs has been dismissed and the judgment and decree dated 10.3.1997 passed by Addl. Civil Judge (Jr. Division) Roopwas (for short, 'the trial court') in Civil Suit No. 240/1996 dismissing the plaintiffs' suit for permanent injunction has been affirmed.

¶27

Facts of the case are that the plaintiffs filed a suit for permanent injunction against the respondents - defendants (for short, 'the defendants'), wherein it was pleaded that there is a land and plot in the ownership and possession of plaintiff and formal defendant no.4 Dau Dayal in Roopwas, Distt. Bharatpur. In a partition, which took place 8 years ago, land came in the share of plaintiff and formal defendant, over which which the plaintiffs are in possession. The defendants no. 1 to 3 are also the family members of the plaintiffs. In the year 1960 when partition took place, land in the eastern side of the disputed land came in the share of the defendants and a 5 ft. wide way was left over in order to come and go to the land of the plaintiffs. However, on 6.1.1974, the defendants started to dig the plinth of the way.

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The defendants filed the written statement, wherein it was pleaded that no partition took place in this matter. It was further pleaded that 5 ft. way was not left nor it is in existence at the site. It was further pleaded that on 10.11.1964 before Standing Committee for Justice, a compromise was arrived at

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(3 of 4)

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[CSA-581/2006]

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between the plaintiff's father Babu Lal and defendant no.1. Thereafter the suit filed by the plaintiffs be dismissed.

¶32

On the basis of pleadings of the parties, necessary issues were framed. Evidence was led by both the parties.

¶33

After hearing the arguments, the trial court vide its judgment dated 10.3.1997 dismissed the suit. On an appeal filed by the plaintiffs, the first appellate court vide its judgment dated 3.8.2006 dismissed the appeal and affirmed the judgment and decree dated 10.3.1997 passed by the trial court.

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Hence, this second appeal has been filed.

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Learned counsel for the plaintiffs submits that the plaintiffs initially filed the suit before the trial court, which came to be dismissed vide judgment dated 20.2.1986. Thereafter on an appeal filed by the plaintiffs, the first appellate court vide its judgment dated 18.4.1995 allowed the appeal and remanded the matter to the trial court with a direction to decide the issue no. 2 and 3 afresh and give a finding with regard to the execution and admissibility of purported agreement (Ex.-2). After that the trial court, vide its impugned judgment dated 10.3.1997 dismissed the suit and decided issue no. 2 and 3 against the plaintiffs giving finding that purported agreement (Ex.-2) being insufficiently stamped and unregistered was inadmissible in evidence. He further submits that even if the purported agreement (Ex.-2) was insufficiently stamped and unregistered, it should have been read in evidence for collateral purposes.

¶36

On the other hand, learned counsel for the defendants submits that an unregistered and insufficiently stamp paper could not have been read in evidence even for collateral purposes. By marking an exhibit over a document, it is not proved nor becomes

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(4 of 4)

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[CSA-581/2006]

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admissible in evidence. The document in question has not been duly proved. There are material contradictions. The plaintiffs are claiming 5 ft. wide way, whereas PW-1 Roshan Lal in his evidence stated that way in question is 3 ft. wide. In this way, there is variance between pleading and proof.

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Heard. Considered.

¶41

The Courts below while dismissing the plaintiffs' suit noted that purported agreement (Ex.-2) being insufficiently stamped and unregistered was inadmissible in evidence, moreso when the same was not duly proved. In my considered view, the purported agreement (Ex.2) being insufficiently stamped and unregistered, cannot be read in evidence for collateral purpose. Rather, the defendants from their evidence, oral as well as documentary, established that no way was in existence between the properties of plaintiffs and defendants.

¶42

In my view when there is no pleading in respect of easementary rights and no issue in this regard was framed, both the courts below having rightly considered the evidence led by the parties in the suit and there being concurrent finding of facts recorded by both the courts below, this Court is not inclined to interfere with the same. Even otherwise, when there has been a concurrent finding that the way in question was not in existence and the counsel for the plaintiffs having failed to point out any question of law much less substantial question of law, this second appeal is liable to be dismissed, which stands dismissed accordingly.

¶43

Consequent upon the dismissal of the appeal, the stay application and all pending applications, if any, also stand dismissed accordingly.

¶44

(PRAKASH GUPTA),J

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DK/13

Roshan Lal and Ors. v. Om Prakash and Ors.

Case brief

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Roshan Lal and Ors. v. Om Prakash and Ors.

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