Badri Lal S/O Nathulal Kumawat Vs Devkinandan S/O Late Kunjbihari Kumawat

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 167/2022

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Badri Lal S/o Nathulal Kumawat, R/o Ward No. 6, Kumawato Ka Mohalla, Uniyara, District Tonk.

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Lalluram S/o Nathulal Kumawat, R/o Ward No. 6, Kumawato Ka Mohalla, Uniyara, District Tonk.

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Suresh S/o Nathulal Kumawat, R/o Ward No. 6, Kumawato Ka Mohalla, Uniyara, District Tonk.

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Santosh Daughter Of Nathulal W/o Gopal Kumawat, R/o Near Sardar Patel Chauraha, District Tonk.

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Sushila D/o Nathulal W/o Munna Kumawat, R/o Ramdwara Chatri, Uniyara, Dist. Tonk. ----Appellants/Defendants

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Versus

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1. Devkinandan S/o Late Kunjbihari Kumawat, R/o Ward No. 6, Uniyara, District Tonk.

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Respondent No.1/Plaintiff

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Municipal Corporation Uniyara, Through Its Executive Officer, Municipal Corporation, Uniyara Tonk.

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----Respondent No.2

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For Appellant(s) : Mr. Bharat Yadav For Respondent(s) : Mr. Nitin Jain Mr. Vaibhav Pareek

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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10/11/2025

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Appellants are defendants and have preferred this Second Appeal under Section 100 CPC feeling aggrieved by judgment and decree dated 15.12.2015, passed by Civil Judge, Uniyara, District Tonk to remove their encroachment of Chabutara over the public chowk and the decree has been affirmed in First Appeal by the

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Court of Additional District Judge, Tonk dismissing appellants’ First Appeal thereagainst.

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Heard counsel for both the parties and perused the record. 3. Indisputably, three civil suits, two filed by and on behalf of respondent No.1 – plaintiff and third one by and on behalf of appellant No.1 – Badri Lal were consolidated and tried together. Plaintiff’s claim for issuance of mandatory and permanent injunction to close the door and windows of defendants’ house towards public chowk has been dismissed and defendants’ claim to retain Chabutara in question , in front of their house allegedly constructed under the permission of Municipal Corporation, Uniyara, has been rejected and accordingly, Chabutara of defendants has been held to be made on the portion of public chowk, hence, has been directed to be removed. This Chabutara has been shown in the map appended with the plaint as Ex.1 and marked as MNOD, shown by red colour, situated in front of the defendants house.

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Counsel for the appellants in his long-drawn arguments, sought to emphasize that the Chabutara of defendants is not constructed on the area of public chowk but is not a part of public chowk and situated just in front of defendants’ house. Further, his submission is that Chabutara is constructed since long and witness DW-4 – Nagyendra, Executive Officer of Municipal Corporation, Uniyara, admits existence of Chabutara in map Ex.3 , in front of defendants’ house, so same may not be directed to be removed. His submission is that this Chabutara is existing since years together and the Courts below committed perversity in holding the Chabutara as encroachment over the public chowk.

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However, it is noteworthy that learned counsel for the appellants, during course of his arguments, does not dispute that permission to construct Chabutara was refused by Municipal Corporation, on account of pendency of lis and though defendants tried to deposit the regularization cost but same was also not permitted by the Municipal Corporation.

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Having adverted to the contention of the counsel for the appellants, this Court noticed that learned trial Court, in its well reasoned judgment, has considered the document Ex.3. The trial Court in its fact findings at internal page 10 of the judgment, has clearly observed that Ex.3 does not depict grant of any permission to defendants to construct the Chabutara, rather trial Court on the strength of approved map of defendants’ house (Ex. A3) and the report of the Court Commissioner dated 15.04.1994 as also map of Commissioner‘s report (Ex.A1) held that at that point of time, Chabutara in front of defendants’ house was not constructed and only raw material was found at site, and later on, in map (Ex.3), Chabutara has been shown as constructed. This Court has further noted that the trial Court also took into consideration that in the note sheet of Municipal Corporation, factum of encroachment made by defendants over the public chowk by constructing Chabutara was taken note of and then the Municipal Corporation, Uniyara, itself issued notice in the year 1999 (Ex.7) to the defendants’ predecessor- Nathulal, to remove the encroachment of defendants over the public chowk, and that notice was received by the appellant-defendant – Badri Lal Kumawat.

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The contention of the counsel for appellants that the Chabutara, situated in front of defendants’ house is not

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constructed over the portion of public chowk, does not find any force nor supported with any evidence. On the contrary, after analytical discussion of the evidence and considering the size of public chowk as also admission of parties about existence of public chowk, in front of their respective houses, it has been observed by both the Courts, that the size of public chowk is approx 24x18 Sq. Ft. On this public chowk, door, windows of plaintiffs’ houses have been found to be opened towards eastern side and door, windows of defendants’ house have been found to be opened towards southern side. While accepting the existence of a public chowk, it has categorically been observed that no encroachment over the part of public chowk may be allowed to continue as there is specific finding of fact that encroachment of Chabutara of defendants, is on the portion of public chowk. Counsel for the appellants in his arguments, could not establish any perversity in fact findings of the trial Court, which has been affirmed in the first appeal.

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The fact findings of two Courts below are based on oral and documentary evidences and discussions of same find place in the impugned judgment in detail. No perversity, manifest illegality or jurisdictional error has been pointed out in such fact findings, which give rise to any substantial questions of law.

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The Hon’ble Supreme Court in catena of judgments has expounded that unless concurrent fact findings suffer from perversity or is based on an inadmissible piece of evidence or suffer from non-construction of any material piece of evidence, same are not required to be interfered with by the High Court in exercise of its jurisdiction under Section 100 CPC. Otherwise also,

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it is trite law that involvement of substantial question of law is sine qua non to entertain a civil second appeal under Section 100 CPC.

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In the case at hand, no substantial question of law has been found to be involved. Substantial questions of law as suggested by the appellants in the memo of second appeal, are virtually mixed questions of fact and law, which requires re-appreciation of evidence de novo as a whole and same is not permissible within the jurisdiction under Section 100 CPC.

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The scope of the High Court to grant indulgence in concurrent fact findings recorded by the two courts below, is extremely limited and confined to the existence of a substantial question of law, while exercising its power and jurisdiction under Section 100 of the CPC. In a series of decisions rendered by the Hon’ble Supreme Court, it has been categorically held as an established principle of law that the High Court is not required to re-appreciate the entire evidence on record or to come to its own conclusion. The High Court cannot set aside the findings of fact recorded by the two courts below, when such findings are based on appreciation of evidence. In this regard, reference may be given to a judgment of the Hon’ble Supreme Court delivered in the

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case of S. Subramanian Vs. S. Ramasamy [(2019) 6 SCC 46] .

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The relevant portions of the judgment i.e. Paragraphs 7.4, 7.5, and 7.6, are being reproduced hereunder:-

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“7.4 Even otherwise, it is required to be noted that as per a catena of the decisions of this Court and even as provided under Section 100 CPC, the second appeal would be maintainable only on substantial question of law. The second appeal does not lie on question of facts or of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam' , in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for

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that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:

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(i) Contrary to the mandatory provisions of the applicable law; OR

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(ii) Contrary to the law as pronounced by the Apex Court; OR

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(iii) Based on inadmissible evidence or no evidence.

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It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal. 7.5. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434]. In the aforesaid decision, this Court has specifically observed and held:

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"Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise."

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7.6. Applying the law laid down by this Court in the aforesaid decisions and the substantial questions of law formulated/framed and answered by the High Court, reproduced hereinabove, it cannot be said that the said questions of law can be said to be substantial questions of law. All can be said to be questions of law or questions of fact and cannot be said to be substantial questions of law.”

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The Hon’ble Supreme Court in case C. Doddanarayan

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Reddy v. C. Jayarama Reddy [(2020) 4 SCC 659] , has observed that where two courts have reached a finding, which is not based upon any misreading of material documents, nor is recorded against provisions of law and neither can it be said that any Judge acting judiciously and reasonably could not have reached such a finding, then High Court is not required to interfere with such fact findings while exercising its jurisdiction under Section 100 CPC.

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