Dismissed

Prem Singh v. Lrs of Jethu Singh

Rajasthan HC25 May 2023CSA/253/2022

Case brief

AI extract

What is this about?

In a second appeal against a civil suit decree for declaration and injunction regarding a road width, this Court found no substantial question of law arose. It held that factual findings on road width cannot be disturbed and the suit was not based on easementary rights, thus dismissing the appeal.

What did the court decide?

The second appeal, stay petition, and all pending applications are dismissed.

Prem Singh Vs Lrs of Jethu Singh — Civil Procedure and Limitation | Rajasthan HC (2023)

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[2023/RJJD/017328]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 253/2022

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Prem Singh S/o Shivnath Singh, Aged About 78 Years, R/o Badawas, Osian, Presently Residing Near Bijlighar, Tinwari, Tehsil Osian, District Jodhpur, Rajasthan.

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----Appellant

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Versus

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1. Jethu Singh S/o Bhopal Singh, R/o Osian (Since Deceased) through his Legal Representatives-

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1/1. Sohan Singh S/o Late Jethu Singh, R/o Badawas, Osian, Tehsil Osian, District Jodhpur.

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1/2. Narayan Singh S/o Late Jethu Singh, R/o Badawas, Osian, Tehsil Osian, District Jodhpur.

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1/3. Madan Singh S/o Late Jethu Singh, R/o Badawas, Osian, Tehsil Osian, District Jodhpur.

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1/4. Laxman Singh S/o Late Jethu Singh, R/o Badawas, Osian, Tehsil Osian, District Jodhpur.

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1/5. Kishan Singh S/o Late Jethu Singh, R/o Badawas, Osian, Tehsil Osian, District Jodhpur.

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1/6. Bhanwar Kanwar W/o Late Jethu Singh, R/o Badawas, Osian, Tehsil Osian, District Jodhpur.

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----Respondents

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For Appellant(s)	: Mr. Roshan Lal
For Respondent(s)	: --

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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25/05/2023

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The present appeal has been preferred against the judgment and decree dated 29.07.2022 passed by the Additional District Judge, Jodhpur District in Civil Regular Appeal No.5/2021 (12/2020) affirming the judgment and decree dated 27.07.2020 passed by the Civil Judge, Osian, District Jodhpur in Civil Original

[2023/RJJD/017328]

[CSA-253/2022]

(2 of 3)

Suit No.6/2012 whereby the suit for declaration and permanent injunction preferred by the plaintiffs was decreed.

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The grounds raised by learned counsel for the appellant in the present appeal are firstly, the learned Courts below wrongly decreed the suit qua 20 feet road/way whereas it was clearly established on record that the way, if any, was only 12 feet wide. Counsel submitted that the Commissioner's Report also fortified the said fact and therefore, the suit, even if to be decreed, ought to have been decreed only qua 12 feet wide road and not 20 feet. Secondly, the relief as prayed for by the plaintiffs was on the basis of right of easement whereas no issue qua the same was framed and therefore, the finding on issue No.1 could not have been reached without concluding that the plaintiffs were entitled for declaration of way on the basis of any easementary right.

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Heard learned counsel for the appellant. 4. A perusal of the record shows that the prayers as made by the plaintiffs were for declaration, mandatory and permanent injunction. The said prayers have not been claimed on the right of easement. The plaintiffs have nowhere in the plaint claimed any easementary right rather it is the defendant who claimed injunction on the basis of such right. Neither the plaintiffs claimed any easementary right nor the learned Court below decided in favour of the plaintiffs on the basis of any such right. Therefore, the second ground as raised by learned counsel for the appellant that no decree for declaration could have been granted in favour of the plaintiffs without a finding that they were entitled to the same on the basis of right of easement, cannot be held to be tenable.

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[2023/RJJD/017328]

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[CSA-253/2022]

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So far as the findings regarding the existence of 20 feet wide road and not a 12 feet wide road is concerned, the findings are totally on facts and this Court, in second appeal, cannot go into the findings based totally on facts. Moreover, the findings as reached by both the learned Courts below are totally in consonance with the material available on record.

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In view of the same, no substantial question of law arises in the present appeal and the same is therefore, dismissed .

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The stay petition as well as all the pending applications also stand dismissed.

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(REKHA BORANA),J

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41-Sachin/-

Prem Singh v. Lrs of Jethu Singh

Case brief

What is this about?

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Prem Singh v. Lrs of Jethu Singh

Case brief

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