Dismissed

Mahesh Chandra and Ors. v. Prabha Shankar and Ors.

Rajasthan HC10 Aug 2023CSA/69/2018

Case brief

AI extract

What is this about?

This second appeal against a civil decree affirmed the trial court's decision to grant a declaratory relief and permanent injunction in favour of the plaintiffs, who claimed property rights over land that the defendants alleged was a public way.

What did the court decide?

The present second appeal and the stay application are dismissed, confirming the decree and injunction in favour of the plaintiffs.

Mahesh Chandra and Ors. Vs Prabha Shankar and Ors. — Partition | Rajasthan HC (2023)

¶1

[2023:RJ-JD:25511]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 69/2018

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Mahesh Chandra S/o Bapulal Pandya

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Lrs Of Bhupendra Kumar S/o Bapu Lal Pandya

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Roshan Kumar S/o Bapu Lal Pandya, All Residents Of Saroda, Tehsil Sagwada, District Dungarpur Raj.

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----Appellants

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Versus

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Prabha Shankar S/o Bapu Lal Pandya

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Mohan Lal S/o Bapu Lal Pandya

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Gajanand S/o Bapu Lal Pandya 4. Hemendra Kumar S/o Bapu Lal Pandya, All Residents Of Saroda, Tehsil Sagwada, District Dungarpur Raj.

¶12

----Respondents

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For Appellant(s)	: Mr. V.R. Choudhary
For Respondent(s)	: --

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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10/08/2023

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The present second appeal has been preferred against the judgment and decree dated 17.11.2017 passed by the Additional District Judge, Sagwada, District Dungarpur in Civil Appeal No.01/2016 whereby the judgment and decree dated 20.01.2009 passed by the Civil Judge (Senior Division), Sagwada in Civil Suit No.58/1998 has been affirmed. Vide the judgment and decree dated 20.01.2009, learned trial Court has decreed the suit for declaratory as well as permanent injunction in favour of the plaintiffs.

(2 of 3)

[2023:RJ-JD:25511]

[CSA-69/2018]

Learned counsel for the appellants submitted that the Courts below wrongly decided issue No.4 against the defendants as the land in question was the land of a public way and not of the ownership of the plaintiffs and hence the suit could not have been decreed in favour of the plaintiffs.

¶22

Issue No.4 as framed read as under :

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“4vk;k oknhx.k us ftl vkaxu dks vius LokfeRo dk gksuk crk;k gS] og oknhx.k ds LokfeRo dk vkaxu ugha gksdj lkoZtfud jkLrk gS rFkk izfroknhx.k us xzke iapk;r ls Lohd`fr oS/kkfud :i ls ysdj fuekZ.k dk;Z dj jgs gSa \

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izfroknhx.k @&”

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While deciding the above issue, the Court below specifically held that there was no public way in existence as alleged by the defendants. The specific finding of the Court is that the way was blocked at the end and no way which can be termed to be a ‘public way’ existed on the site.

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Further, the Court below while dealing with the arguments on the issue whether the construction was raised by the defendants after seeking permission from Gram Panchayat, held that firstly , if there had been any ‘public way’ in existence, no permission could have been granted by the Gram Panchayat for construction on the same and secondly , no document to substantiate the fact of any permission having been granted by Gram Panchyat has been exhibited by the defendants.

¶27

While arriving to the above findings, the Court below decided issue No.4 against the defendants and proceeded on to decree the suit in favour of the plaintiffs, other issues having been decided in favour of the plaintiffs.

(3 of 3)

[2023:RJ-JD:25511]

[CSA-69/2018]

This Court is of the specific opinion that the findings as arrived at by both the Courts below are totally in consonance with the material available on record. Further, the concurrent findings of the Courts below are totally factual in nature and this Court, in a second appeal, would refrain to interfere with the same.

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No other ground has been raised by learned counsel for the appellants.

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No substantial question of law arise in the present appeal.

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Accordingly, the present second appeal is dismissed .

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The stay application and the pending applications, if any, also

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stand dismissed .

¶37

(REKHA BORANA),J

¶38

1-Vij/-

Mahesh Chandra and Ors. v. Prabha Shankar and Ors.

Case brief

What is this about?

What did the court decide?

Mahesh Chandra and Ors. v. Prabha Shankar and Ors.

Case brief

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