Dismissed

Ghisalal Son of Shri Kishan v. Hari Pratap Singh Son of Shri Harnath Singh

Rajasthan HC7 Nov 2025CSA/228/2022

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed two connected civil second appeals regarding encroachment over a public way by the appellants. The Court held that the lower courts' findings on the extent of the encroachment were based on proper appreciation of evidence and thus debarring any substantial question of law that would justify interference under Section 100 of the CPC.

What did the court decide?

Both appeals were dismissed; the judgments and decrees of the lower courts were affirmed.

Ghisalal Son of Shri Kishan Vs Hari Pratap Singh Son of… — Property and Title | Rajasthan HC (2025)

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[2025:RJ-JP:44694]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 487/2025

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Ghisalal, Aged About 63 Years, S/o Shri Srikishan

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Smt. Saroj Devi W/o Shri Ghisalal Chandel, Both R/o Achhawan Kanwar Colony, Kekri, Tehsil Kekri, District Ajmer (Raj.)

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----Appellants

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Versus

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Smt. Ganga Devi W/o Shri Moolchand, Aged About 78 Years, R/o Kekri, Tehsil Kekri, District Ajmer

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Moolchand S/o Shri Madan Lal Sharma, R/o Mohan Nagar Colony Kekri, Tehsil Kekri, District Ajmer (Deceased Through L/rs.)

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2/1. Smt. Santra Devi, W/o Shri Moolchand Sharma

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2/2. Kaushal Sharma, S/o Shri Moolchand Sharma

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2/3. Deepak Sharma S/o Shri Moolchand Sharma, All R/o Mohan Nagar Kekri, Tehsil Kekri, District Ajmer

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Naraindas S/o Shri Natharmal, R/o Kekri, Tehsil Kekri, District Ajmer

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Smt. Kishan Kanwar W/o Prithviraj Singh, Aged About 68 Years, R/o Achhankanwar Colony, Kekri, Tehsil Kekri, District Ajmer

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Uttamchand S/o Shri Bhanwar Lal Jain, R/o Kekri, Tehsil Kekri, District Ajmer

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Municipal Board, Kekri, Through Executive Officer

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----Respondents

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Connected With

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S.B. Civil Second Appeal No. 228/2022

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Ghisalal Son Of Shri Kishan, R/o Ward No. 2, Uchchav Kanwar Colony, Kekri, Tehsil Kekri, District Ajmer.

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Smt. Saroj Wife Of Ghisalal, R/o Ward No. 2, Uchchav Kanwar Colony, Kekri, Tehsil Kekri, District Ajmer.

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----Appellants

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Versus

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Hari Pratap Singh Son Of Shri Harnath Singh, R/o Ward No. 2, Uchchav Kanwar Colony, Kekri, Tehsil Kekri, District Ajmer.

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Vijendra Pratap Singh Son Of Shri Harnath Singh, R/o Ward No. 2, Uchchav Kanwar Colony, Kekri, Tehsil Kekri, District Ajmer.

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Harnath Singh S/o Sakap Singh (Deceased), R/o Master Colony, Kekri, District Ajmer.

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3/1. Hari Pratap Singh S/o Harnath Singh, R/o Master Colony, Kekri, District Ajmer.

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3/2. Devendra Pratap Singh S/o Harnath Singh, R/o Master Colony, Kekri, District Ajmer.

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3/3. Vijendra Pratap Singh S/o Harnath Singh, R/o Master Colony, Kekri, District Ajmer.

(2 of 8)

[2025:RJ-JP:44694]

[CSA-487/2025]

3/4. Anand Kanwar D/o Harnath Singh, R/o Master Colony, Kekri, District Ajmer.

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Rameshwar Prasad S/o Barah Bux, R/o Kekri, District Ajmer. 5. Gopal Singh S/o Samrath Singh, R/o Kekri, District Ajmer. (Deleted Dated 11.02.2016)

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Yashendra Pal Singh S/o Ishwar Singh (Deceased), R/o Master Colony, Kekri, District Ajmer.

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6/1. Ratan Kanwar Wife Of Yashendra Pal Singh, R/o Master Colony, Kekri, District Ajmer.

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6/2. Arvind Singh S/o Yashendra Pal Singh, R/o Master Colony, Kekri, District Ajmer.

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6/3. Alok Singh S/o Yashendra Pal Singh, R/o Master Colony, Kekri, District Ajmer.

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----Respondents

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For Appellant(s)	: Mr. Pawan	Kumar Sharma
For Respondent(s)	:

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HON'BLE MR. JUSTICE SUDESH BANSAL Judgment

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07/11/2025

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Dispute in these two appeals is in respect of encroachment over a public way which is a connecting road between Achhan Kanwar Colony and Master Colony at Kekri, District Ajmer.

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Undisputedly, width of public way is 20 feet wide but upto 11 feet width, encroachment exists thereupon and only 9 feet wide way is available at site. The dispute is pending since 1993.

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Appellants in both the appeals are common parties, who are holders of Plots No. 2 and 8 respectively in Achhan Kanwar Colony, Kekri and the alleged public road exists in front of their houses.

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Appellants instituted a Civil Suit No. 38/1993 titled as Ghisalal Vs. Hari Pratap Singh, stating inter alia , that the encroachment over the public way have been made by the plot holders of Plots No. 3 and 9 of Achhan Kanwar Colony and not by them. Plot holders of Plots No. 3 and 9 as also plot holders of Plot No. 4 and 10 were made party defendant in the civil suit. That civil

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suit was contested by the defendants, alleging inter alia , that indeed the encroachment over the public way have been raised by the plaintiffs. Both parties adduced their respective evidences and finally, Civil Judge (Senior Division) No.1, Kekri, Ajmer after analytical discussion of oral and documentary evidences of both parties, came to the conclusion that encroachment over the public way have not been raised by the plot holders of Plots No. 3 and 9, rather encroachment is of plaintiffs and with such observations, plaintiffs’ suit was dismissed on merits vide judgment dated 29.04.2011. The civil first appeal, filed thereagainst by plaintiffs, has also been dismissed affirming the facts findings of the trial Court, vide judgment dated 28.05.2022 by the Additional District Judge No.2, Kekri, District Ajmer, whereagainst present S.B. Civil Second Appeal No. 228/2022 has been filed by plaintiffs under Section 100 of the CPC.

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In another Civil Second Appeal No. 487/2025, a decree of mandatory injunction, to remove the encroachment of appellantsdefendants has been passed in Civil Suit No. 59/2003 titled as Jagannath Singh Vs. Ghisa Lal, by the Court of Senior Civil Judge No. 2, Kekri, District Ajmer, and the judgment and decree dated 09.12.2015 has been affirmed in the first appeal, vide judgment dated 25.08.2025 by Additional District Judge No.1, Kekri, District Ajmer. This civil suit was filed by as many as four plaintiffs, in a representative capacity, invoking the provisions of Order 1 Rule 8 CPC, seeking to remove the encroachment of defendants No.1 & 2 from the public way and to direct the Nagar Palika, Kekri, to keep the public way encroachment free. Since, in this suit, decree has

(4 of 8)

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been passed against the appellants who were defendants No.1 and 2 in the suit, they have preferred the Civil Second Appeal No. 487/2025 invoking jurisdiction of the High Court under Section 100 CPC.

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In both the appeals, subject matter of dispute in issue is similar and appellants are common, hence, vide order dated 31.10.2025, both appeals were ordered to be tagged and with the consent of counsel for appellants, have been heard together, which shall stand decided by this common judgment.

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Heard counsel for appellants at length and perused the record of the Courts below.

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For ready reference, impugned judgment and decree dated 09.12.2015 passed against appellants in Civil Suit No. 54/2010 {59/2003} is being reproduced herein:-

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“Qyr% oknhx.k txUukFkflag oxSjg dk okn fo:) ?khlkyky oxSjg ckcr LFkk;h fu"ks/kkKk o vkns'kkRed O;kns'k e; [kpsZ fuEu izdkj ls fMØh fd;k tkrk gS&

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1- izfroknh la[;k 2 ljkst nsoh iRuh ?khlkyky dks vkns'k fn;k tkrk gS fd IykV la[;k&8 ds lkeus vke jkLrs ij 10 xq.kk 40 QqV vfrØe.k fd;k gqvk gS mls fu.kZ; dh fnukad ls nks ekg ds vUnj Lo;a ds [kpsZ ij gVk ys vU;Fkk oknhx.k izfroknh la[;k&2 ds [kpsZ ij vfrØe.k gVkus ds fy, dk;Zokgh djus ds fy, Lora= jgsaxsA

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2- izfroknh la[;k 1 ?khlkyky dks vkns'k fn;k tkrk gS fd IykV la[;k&2 ds lkeus vke jkLrs ij 1-9 xq.kk 40 QqV vfrØe.k fd;k gqvk gS mls fu.kZ; dh fnukad ls nks ekg ds vUnj Lo;a ds [kpsZ ij gVk ys vU;Fkk oknhx.k izfroknh la[;k&1 ds [kpsZ ij vfrØe.k gVkus ds fy, dk;Zokgh djus fy, Lora= jgsaxsA

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3- izfroknh la[;k 5 uxjikfydk dsdMh dks vkns'k fn;k tkrk gS fd vke jkLrs dh Hkwfe ij izfroknh la[;k 1 o 2 }kjk fd;s x;s vfrØe.k dks gVk;s rFkk Hkfo"; esa vfrØe.k ugha djus gsrq LFkk;h fu"ks/kkKk ls ikcUn fd;k tkrk gSA

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4- fMØh ipkZ mDrkuqlkj eqfrZc gksA”

(5 of 8)

[2025:RJ-JP:44694]

[CSA-487/2025]

As has been noticed hereinabove that it is not in dispute that on the public way of 20 feet wide, encroachment upto 11 feet exists at site, which is just in front of appellants’ Plots No.2 and 8 and it has concurrently been held by both the Courts that such an encroachment has been made by the appellants and directions have been issued to remove such encroachment with further directions to Nagar Parishad, Kekri, to ensure removal of encroachment and keep the public way free from any encroachment and obstruction.

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The fact findings recorded by both the Courts below, are based on appreciation of oral and documentary evidence of both parties. The site plan of Achhan Kanwar Colony, Kekri (Exhibit-2), Report of Court Commissioner (Exhibit-A4) and site map appended thereto (Exhibit-A5), Report of Tehsildar (Exhibit-A13) and Report of Junior Engineer, Nagar Parishad, Kekri (Exhibit-A22) have been taken into consideration. The notices issued by the Nagar Parishad, Kekri, against appellant to remove the encroachment, were also exhibited and have been taken into consideration. Appellants miserably failed to prove that such an encroachment was made by the plot holders of Plots No. 3 and 9, rather in their Civil Suit, trial Court clearly observed and held that encroachment was made by the plaintiffs themselves. Appellants' house premise have been found in excess to their lands. Further in the another civil suit filed against appellants both courts also concluded that possession of defendants No.1 & 2, exceeds from their purchased area of plots, hence, their encroachment was directed to be removed.

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Learned counsel for appellants, during course of arguments, tried to persuade this Court that the fact findings are perverse as the proper measurement of the houses have not been taken into consideration, but on perusal of the fact findings recorded in the impugned judgments, it is apparent that the facts findings are absolutely based on appreciation of evidence and such fact findings do not reflect any perversity, manifest illegality or jurisdictional error, which call for any interference by the High Court in exercise of jurisdiction under Section 100 CPC.

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In addition, from the site map available on record, this Court has examined the nature of encroachment made by the appellants, plot holders of Plots No. 2 and 8 on the public way, such an encroachment does not include any construction of houses, but is in the nature of raising some pakka boundary wall, let-bath and fencing etc. The issue of removal of such an encroachment is pending since 1993. In this view, no equity lies in faovur of appellants.

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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

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on appreciation of evidence. In this regard, reference may be given to a judgment of the Hon’ble Supreme Court delivered in the 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 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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(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.

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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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The substantial questions of law as suggested and mentioned in the memo of civil second appeal, are virtually mixed questions of fact and law, which do not fall within the purview of substantial question of law.

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As a final result, both Civil Second Appeals being devoid of substance and merits are hereby dismissed. The judgments and decree dated 29.04.2011 and 09.12.2015 are hereby affirmed. No order as to costs.

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Records of both the Courts be sent back.

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Stay application and other pending application(s), if any, stand disposed of.

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A copy of this judgment be sent to the Nagar Parishad, Kekri, District Ajmer, for compliance.

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(SUDESH BANSAL),J

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NITIN /57-58

Ghisalal Son of Shri Kishan v. Hari Pratap Singh Son of Shri Harnath Singh

Case brief

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Ghisalal Son of Shri Kishan v. Hari Pratap Singh Son of Shri Harnath Singh

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