Om Singh Meena S/O Shri Manna Lal Meena Vs Chairman Nagar Palika

This is plaintiff’s Civil Second Appeal, filed under Section 100 CPC assailing the judgment dated 13.08.2024, passed in Civil First Appeal No. 23/2020 by Additional District and Sessions Judge No.4, Kotputali, District Jaipur, affirming the judgment and decree dated 27.03.2012, passed in Civil Suit No. 108/2007 by Civil Judge (Jr. Div.) First Class Kotputali, District Jaipur, wherein and whereunder plaintiff Civil Suit for permanent injunction was dismissed on merits.

¶15

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

¶16

The Suit property is a plot measuring 30 feet wide from North Side, 23 Feet wide from South Side, 56 feet wide from East Side and 46 feet wide from West Side, in length and situated in Mohalla Badabas, Town Kotputali, District Jaipur. This plot is

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attached to the house of plaintiff and according to plaintiff same is being used by him as Bada to tie his cattle. The suit plot has been shown with red lines in the site map (Exhibit 1) appended with the plaint.

¶21

It appears that plaintiff came up with a case pleading inter alia that such plot was purchased by him through agreement dated 05.03.1999 from Shri Mevaram, Onad singh, Ramdayal, Phoolchand and Rameshwar, residents of Mohalla Badabas, Kotputli, District Jaipur and since then, he is having lawful possession thereof and the same is being used to tie his cattle, as this plot is in the form of open Bada , just adjoining the plaintiff’s house. Civil suit was instituted on or nearby in the month of August 2007, stating inter alia that Nagar palika, Kotputli, District Jaipur, is inclined to remove possession of plaintiff, alleging that the plot in question to be a part of public chowk and way.

¶22

Defendants submitted written statement denying the right, title and interest of plaintiff in the suit plot and contended that suit plot is part of public chowk and way, which is under the control and management of Nagar Palika, Kotputli, District Jaipur, hence, plaintiff’s possession of plot is encroaching over the government land, which is liable to be removed.

¶23

After framing the issues and recording evidence of both the parties, trial Court dismissed the plaintiff’s suit with fact finding that plaintiff miserably failed to produce any evidence to establish his title over the plot in question. Neither the agreement dated 05.03.1999, through which plaintiff states to have purchased the plot in question, was produced in evidence nor any seller was produced as witness. The suit plot, as per its location, was treated

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to be part of public chowk and way and since, the use of suit plot as Bada was held as an encroachment of plaintiff on the public land of chowk and way, no right was found vested in the plaintiff to protect his encroachment and finally the plaintiff’s suit was dismissed on merits vide judgment dated 27.03.2012.

¶28

Plaintiff preferred Civil First Appeal thereagainst and First Appellate Court reconsidered the entire subject matter and on analytical discussion of the evidence, affirmed the fact findings of trial Court, observing that in absence of plaintiff evidence, he could not establish his right, title and interest in the plot in question. The suit plot being part of public chowk and way, the encroachment made thereupon by plaintiff was permitted to be removed by the Nagar Palika and First Appeal was dismissed vide judgment dated 13.08.2024.

¶29

Learned counsel appearing on behalf of the appellantplaintiff, during course of argument, drew attention of this Court to the provision of Section 68(h) of the Rajasthan Municipalities Act, 2009, to contend that the courts below have erred in observing that the plot in question is vested with the Nagar Palika whereas unless a special order/general circular of government is not produced, the plot should not have been held to be vested as municipal property.

¶30

Having adverted to the contention of counsel for the appellant, this Court is of considered opinion that the issue before the Courts below in the present civil Suit was in respect of examining the right, title or interest of the plaintiff in the suit plot. Both courts have concurrently held that plaintiff miserably failed to establish his right and even has not produced the agreement or

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any other evidence to show that plot was purchased by him and he had a lawful possession thereof. Otherwise also, from bare perusal of the site map Ex.1, the plot in question, prima facie , appears to be a part of public chowk and way. The plot in question is located within the periphery of Nagar Palika, Kotputali, District Jaipur, hence, there is presumption in law that the lands of public chowk and way, which are government lands, raised and vested with the municipality under their control and supervision, it is an obligation of municipality and are rather burdened with duty to keep the public property encroachment free. It is not the case of plaintiff that his encroachment over the public land is being removed without following the due process of law.

¶35

Thus, this Court does not find any force in the contention of counsel for the appellant and the fact findings recorded by two courts below, do not suffer from any vice of arbitrariness perversity and illegality much less jurisdictional error. 11. 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] .

¶40

The relevant portions of the judgment i.e. Paragraphs 7.4, 7.5,

¶41

and 7.6, are being reproduced hereunder:-

¶42

“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:

¶43

(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

¶45

(iii) Based on inadmissible evidence or no evidence.

¶46

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.

¶47

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:

¶48

"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."

¶49

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.”

¶50

The Hon’ble Supreme Court in case C. Doddanarayan

¶51

Reddy v. C. Jayarama Reddy [(2020) 4 SCC 659] , has

¶52

observed that where two courts have reached a finding, which is not based upon any misreading of material documents, nor is

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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.

¶57

As a final result, the present second appeal is devoid of substance & merits, hence, same is hereby dismissed. No costs.

¶58

Record be sent back forthwith.

¶59

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

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(SUDESH BANSAL),J

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pcg/69

Om Singh Meena S/O Shri Manna Lal Meena v. Chairman Nagar Palika

Case brief

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Om Singh Meena S/O Shri Manna Lal Meena v. Chairman Nagar Palika

Case brief

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