Dismissed

Kishan Lal @ Kishana Ram v. Kiran Devi

Rajasthan HC13 Apr 2023CSA/29/2023

Case brief

AI extract

What is this about?

The Rajasthan High Court in a second appeal dismissed the appellants challenge against a decree granting a permanent injunction. The court held that the defendants failed to prove old possession despite their claim of 70-year occupancy, confirming them as trespassers and affirming the lower courts findings.

What did the court decide?

Second appeal dismissed; judgments of lower courts affirmed; stay petition disposed of.

Kishan Lal @ Kishana Ram Vs Kiran Devi — Property and Title | Rajasthan HC (2023)

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[2023/RJJD/009957]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 29/2023

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Kishan Lal @ Kishana Ram S/o Hira Lal @ Hari Ram, Aged About 70 Years, R/o Nearby Tata Tower, Ward No.1, Ramnagar Bas, Sardarshahar, Dist. Churu, Rajasthan.

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Raj Kumar @ Raju S/o Kishan Lal Mali, Aged About 47 Years, R/o Nearby Tata Tower, Ward No.1, Ramnagar Bas, Sardarshahar, Dist. Churu, Rajasthan.

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Vinod Kumar S/o Kishan Lal Mali, Aged About 47 Years, R/o Nearby Tata Tower, Ward No.1, Ramnagar Bas, Sardarshahar, Dist. Churu, Rajasthan.

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----Appellants

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Versus

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Kiran Devi W/o Suresh Chandra Sharma, R/o Near House Of Dr. Jatan Lal Vaidhya, Ram Mandir Road, Ward No. 16, Sardarshahar, Dist. Churu, Rajasthan.

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----Respondent

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For Appellant(s) : Mr. Manas Khatri through VC For Respondent(s) : Mr. Rakesh Chotia

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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13/04/2023

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The present second appeal has been preferred against the judgment and decree dated 19.01.2023 passed by the District Judge, Sardarshahar, District Churu (for short, hereinafter referred to as, ‘the Appellate Court’) whereby the judgment and decree dated 25.08.2022 passed by the Civil Judge, Senior Division, Churu (for short, hereinafter referred to as, ‘the trial Court’) has been affirmed.

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Vide the judgment and decree dated 25.08.2022, the learned trial Court proceeded on to decree the suit for permanent and

[2023/RJJD/009957]

[CSA-29/2023]

(2 of 4)

mandatory injunction preferred by the plaintiff-respondent. The findings of the learned trial Court have been affirmed by the learned Appellate Court and against the said concurrent findings of both the Courts below, the present second appeal has been preferred by the defendants-appellants.

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Learned counsel for the appellants submitted that it was proved on record that the defendants were in possession of the disputed property since last 70-75 years and despite the specific documentary evidence available on record pertaining to the said fact, the same has been ignored by both the Courts below. Learned counsel submitted that it was an admitted case on record that the defendants were in possession of the suit property on the date to filing of the suit and therefore, a simplicitor suit for injunction without a prayer for possession could not have been maintainable. Learned counsel further submitted that the defendants were in possession from last 70 years and therefore, they claimed adverse possession of the property being in possession since more than 12 years. Learned counsel relied upon the statements of plaintiff-Kiran Devi wherein she had admitted that the possession of the suit property had been taken away from her by the defendants before filing of the suit.

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Per contra, learned counsel for the respondent submitted that although it was the case of the defendants that they are in possession since last 70 years, no documentary evidence regarding the same has been placed on record and the defendants have utterly failed to prove the said fact. Learned counsel relied upon the statements of defendant No.1-Kishan Lal @ Kishana Ram

[2023/RJJD/009957]

[CSA-29/2023]

(3 of 4)

(D.W.-1) wherein he specifically admitted that he had no documentary evidence which could prove his old possession.

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So far as the admission of the plaintiff is concerned, learned counsel submitted that the case of the plaintiff itself was that the defendants had tried to encroach on the suit property and had constructed a 5 ft. high wall and therefore only, the present suit for injunction to restrain them from encroaching and for demolition of the said wall was preferred. So obviously, just prior to filing of the suit, defendants were in illegal possession because of the encroachment for which the present suit has been preferred.

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Heard learned counsel for the parties and perused the material available on record. 7. Both the Courts below have reached to a specific finding firstly , that plaintiff-Kiran Devi had a valid title in her favour and the same was proved on record. Secondly , the defendants have failed to prove their old possession and therefore, both the Courts concurrently found the defendants to be trespassers and hence decreed the suit as preferred by the plaintiff. In his cross examination, defendant-Kishan Lal @ Kishana Ram (D.W.-1) specifically admitted as under:

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“ esjs edku ds ikuh dk dksbZ dusD”ku ugha gS vt[kqn dgk fd tks fcy izn”kZ A-2 o A-3 is”k fd;s gS og esjs ckMs ds ikuh ds dusD”ku ds fcy gSA ;g dguk lgh gS fd ikuh ds dusD”ku dh QkbZy ftlesa vkosnu dusD”ku ls lacaf/kr tehu edku dk uD”kk o {kfriwfrZ ca/k i= eSaus bl i=koyh esa is”k ugha fd;s gSA vt[kqn dgk fd fcy is”k fd;s gSA esjs edku ds ikuh dk dusD”ku esjs uke ls blfy, ugha fd;k D;ksafd eSa ml le; vU; /kU/ks esa yxk gqvk Fkk eSaus tks ikuh ds fcy is”k fd;s gS og ;gka tc okVj oDlZ “kq: gqvk Fkk rc ds fcy is”k fd;s gSA ”

[2023/RJJD/009957]

[CSA-29/2023]

(4 of 4)

He further stated as under: “ fdj.k nsoh dh tehu ij esjk iwjkuk dCtk gksus dk dksbZ

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nLrkostkr esjs ikl ugha gSA ”

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The present suit for injunction had been preferred by the plaintiff with a specific averment that the defendants had wrongly encroached on land of her ownership. The case of the defendants was that they are having old possession of the property since 70 years and were not the trespassers. The burden to prove the fact that the defendants were in old possession was naturally upon the defendants who pleaded so.

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A perusal of the record as well as findings as reached by both the Courts below makes it clear that there is not an iota of evidence available on record to prove the factum of the old possession of the defendants. In view of the specific opinion of this Court, on the said sole fact, the findings as arrived by both the Courts below cannot be interfered with. Moreover, the same being findings of fact and that too concurrent, cannot be interfered in a second appeal. No substantial question of law arises in the present appeal and the same is therefore, dismissed .

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Stay petition and all the pending applications stand disposed of.

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(REKHA BORANA),J

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27-T.Singh/-

Kishan Lal @ Kishana Ram v. Kiran Devi

Case brief

What is this about?

What did the court decide?

Kishan Lal @ Kishana Ram v. Kiran Devi

Case brief

What is this about?

What did the court decide?

What the court decided

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