Dismissed

Zahida Begum W/O Late Mohammad Zafar. v. Nirmala Bai W/O Mohanlal Galav

Rajasthan HC4 Apr 2024CSA/128/2024

Case brief

AI extract

What is this about?

Second appeals against setting aside of an injunction decree protecting possession of a Rajasthan Housing Board house. The High Court found no substantial question of law, noting the plaintiff produced no documents of title and held the appeals sans merit, dismissing both.

What the court decided

AI extract

Zahida Begum W/O Late Mohammad Zafar. Vs Nirmala Bai… — Property and Title | Rajasthan HC (2024)

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[2024:RJ-JP:26828]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 128/2024

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Zahida Begum W/o Late Mohammad Zafar., R/o 4-B-27, Dadabari Vistar Yojna, District Kota (Raj.)

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----Appellant

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Versus

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1. Nirmala Bai W/o Mohanlal Galav, Through General Power Of Attorney Holder Mohan Lal S/o Ramgopal Lal Galav, R/o Purani Civil Line, Baran (Raj.)

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Rajasthan Awasan Mandal Through Up- Awawasn Ayukt, C.a.d. Circle, District Kota.

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----Respondents

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S.B. Civil Second Appeal No. 129/2024

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Zahida Begum W/o Late Mohammad Zafar, R/o 4-B-27, Dadabari Vistar Yojna District Kota (Raj.)

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----Appellant

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Versus

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Rajasthan Awasan Mandal Through Up- Awawasn Ayukt, C.a.d. Circle, District Kota.

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Nirmala Bai W/o Mohanlal Galav, Through General Power Of Attorney Holder Mohan Lal S/o Ramgopal Lal Galav, R/o Purani Civil Line, Baran (Raj.)

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----Respondents

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For Appellant(s)	: Mr.	NaseemuddinQazi
For Respondent(s)	:

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order

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04/04/2024

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These two appeals were filed by the appellant plaintiff aggrieved from judgment dated 07.12.2023 in civil regular appeal no. 22/2020 and 27/2020 passed by learned Additional District Judge No.6, Kota whereby separate appeals preferred by both the defendants were allowed and common judgment and decree dated 13.12.2019 in civil suit no.82/2018 (45/2010) passed by learned Additional Senior Civil Judge no.6, Kota was set aside.

[2024:RJ-JP:26828]

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Learned counsel for appellant while relying upon grounds of appeal submitted that plaintiff has filed a suit for mandatory and permanent injunction to seek protection from forcible dispossession by the defendants from House no. 4-B-27, Dadabari Extension, Kota which was purchased by her husband but original papers were misplaced. He also submitted that the trial court after considering the evidence of both the parties has issued permanent injunction in favour of appellant plaintiff. He also submitted that the admitted fact cleary shows that the appellant is in possession of the suit property and she is maintaining her peaceful possession. He also submitted that the plaintiff is entitled for protection against forcible dispossession but the appellate court without considering the issue of possession has decided the appeal in favour of defendants which is contrary to the admission of the parties. He also submitted that the plaintiff was able to establish his own prima facie case so as to seek protection of law. He also submitted that the appellate court has reversed the judgment and decree, therefore, the protection order passed in favour of appellant was set aside. He also submitted that the grounds give rise to substantial question of law as narrated in Para-F of the memo of appeal, therefore, both the appeals be admitted for consideration.

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Heard learned counsel for appellant and perused the material available on record.

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The facts giving rise to institution of these appeals are that the plaintiff Zahida Begum has filed a civil suit for permanent injunction against the defendants respondents claiming inter alia that House no. 4-B-27, Dadabari Extension, Kota was occupied by

[2024:RJ-JP:26828]

[CSA-128/2024]

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her for last 10 to 12 years as this property was purchased by her husband Late Shri Mohd. Zafar during his life time. Further, asserted that the original documents relating to property were misplaced and the possession of the plaintiff is continuing as owner but the defendants are trying to dispossess the plaintiff, therefore, she sought an injunction against the defendants.

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The defendant nos. 1 and 2 have filed separate written statement. The defendant no. 1 has claimed that the House no. 4- B-27, Dadabari Extension, Kota was allotted to Nirmala Bai and possession letter was issued on 08.12.2009. At the time of possession, the defendant no.1 came to know about encroachment by the plaintiff. The defendant no.1 has initiated process for dispossession of encroacher. Defendant no.2 in her reply has denied that plaintiff is owner of house No. 4-B-27, Dadabari Extension, Kota and she further asserted the facts as narrated by defendant no.1.

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The trial court has framed as many as four issues. Three witnesses were examined by the plaintiff, whereas two witnesses were examined by the defendants. The plaintiff has not filed any document whereas eight documents were filed by the defendants. The trial court has decided issue no.1 in favour of plaintiff whereas issue nos. 2 and 3 against the defendants. The trial court has allowed the suit and issued injunction in favour of plaintiff (appellant herein).

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Aggrieved from aforesaid, both defendants have filed separate appeals and both the appeals were allowed by the appellate court. As a result, the judgment and decree dated 13.12.2019 was set aside.

[2024:RJ-JP:26828]

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A bare perusal of plaint clearly shows that the House no. 4- B-27, Dadabari Extension, Kota was constructed by defendant no.1 and same was allotted to defendant no.2. The plaintiff has failed to file any document in support of her claim made in the plaint. The defendants have filed eight documents which include registration, cost document and receipt of deposit of cost of the house.

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The plaintiff has claimed that this house was purchased by her husband but the documents were lost. The evidence of defendants clearly suggests that house was constructed by Rajasthan Housing Board which is statutory body situated under the Rajasthan Housing Board Act. On the basis of registration and allotment process, this house was allotted to defendant no.2 Nirmala. There is no privity of contract between Nirmala and husband of appellant plaintiff. Defendant no.1 has stated that at the time of handing over of possession it has come to notice that the house was occupied by the plaintiff. The plaintiff has no right title or claim to maintain her possession. The plaintiff has to establish the incident of possession. An Encroacher has no right to seek protection of law particularly to deny the claim of a rightful owner. The Housing Board has initiated the process to evict the plaintiff. Aggrieved from aforesaid, she filed a suit in 2010 and since then we are after 14 years.

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Having considered the material on record, there is no substantial question of law as the plaintiff has failed to establish her prima facie case before the first appellate court and the first appellate court has allowed the appeal while setting aside the judgment and decree passed by the learned trial court. The trial

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court has committed serious error while passing the judgment and decree that too without any basis. Only on the basis of oral evidence of plaintiff, one cannot claim injunction to maintain her possession.

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In order to determine the substantial question of law we have to consider the test laid down by the Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons.

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Ltd. Vs. Century Spg. and Mgf. Co. Ltd . AIR 1962 SC 1314

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Hon’ble Supreme Court has observed has observed as under:

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The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

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In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC

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405 , Hon’ble Supreme Court explained the purpose of framing

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question of law in following manner:

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“a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question.

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b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon.

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c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

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Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC

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Online (SC) 1273 (decided on 22.09.2022) has summarised

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principle relating to Section 100 of CPC in following words:-

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“(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

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Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) referred to the judgments and observed that the general rule is that the High Court will not interfere with the concurrent findings of the Courts below but same is not an absolute rule. The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.

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Hence, no substantial question of law arises for adjudication in the instant appeals. The appeals sans merit.

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In view of aforesaid, the instant S.B. Second Appeals are hereby dismissed.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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CHETNA BEHRANI /27-28

Zahida Begum W/O Late Mohammad Zafar. v. Nirmala Bai W/O Mohanlal Galav

Case brief

What is this about?

What the court decided

Zahida Begum W/O Late Mohammad Zafar. v. Nirmala Bai W/O Mohanlal Galav

Case brief

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What the court decided

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