Dismissed

Kailash S/O Bhooramal v. Murlidhar S/O Ramdas Santka

Rajasthan HC27 Oct 2025CSA/452/2024

Case brief

AI extract

What is this about?

This civil second appeal under Section 100 CPC, filed by legal representatives alleging a failure to prove easementary rights over a gully, was dismissed. The single judge held that no substantial question of law arose as the lower courts' concurrent findings of fact were reasonable and not based on misreading evidence, rendering the appeal devoid of substance.

What did the court decide?

Second appeal dismissed; record sent back forthwith; stay application and pending applications disposed of.

Kailash S/O Bhooramal Vs Murlidhar S/O… — Civil Procedure and Limitation | Rajasthan HC (2025)

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[2025:RJ-JP:42925]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 452/2024

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Kailash S/o Bhooramal, (Since Deceased)

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1/1. Premlata W/o Late Kailash, R/o Manoharpur Tehsil Shahpura, District Jaipur

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1/2. Madhulta D/o Late Kailash W/o Laxminarayan, R/o Manpura Machedi, Amer

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1/3. Anita D/o Late Kailash W/o Hukamchand, R/o Ajatpura, Tehsil Chomu

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1/4. Urmila D/o Late Kailash W/o Rajendra, R/o Majipura, Tehsil Shahpura

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1/5. Archana D/o Late Kailash W/o Rajnikant, R/o Shahpura, Tehsil Shahpura

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1/6. Pratibha D/o Late Kailash W/o Pappu, R/o Majipura, Tehsil Shahpura

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1/7. Vishvroop S/o Late Kailash, R/o Manoharpur, Tehsil Shahpura, District Jaipur

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1/8. Lokesh S/o Late Kailash, R/o Manoharpur, Tehsil Shahpura, District Jaipur

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1/9. Poonam D/o Late Kailash W/o Rahul, R/o Shrimadhopur, Tehsil Shrimadhopur

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----Appellants

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Versus

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Murlidhar S/o Ramdas Santka (Deceased) through Legal Representatives:-

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1/1. Smt. Chandra Devi Sharma W/o Late Shri Murlidhar Sharma aged about 70 years

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1/2. Vijendra Kumar Vyas S/o Late Shri Murlidhar Sharma aged about 44 years

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1/3. Deependra Kumar Sharma S/o Late Shri Murlidhar Sharma aged about 40 years

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1/4. Rahul Sharma S/o Late Shri Murlidhar Sharma aged about 33 years All R/o Santo Ka Mohalla, Manoharpur, Tehsil Shahpura, District Jaipur

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Madanlal S/o Ramdas Santka 3. Mohanlal S/o Madanlal Santka 4. Sohanlal S/o Madanlal Santka, 5/1. Smt. Mishri Devi W/o Madanlal Santka (Since Deceased) 5/1/1. Umesh Alias Omprakash S/o Madanlal, 5/2. Smt. Jyoti Devi W/o Dinesh Kumar, 5/3. Neha Minor Daughter Dinesh Through Her Mother Jyoti, 5/4. Vishal alias Pawan minor Son Dinesh Through his Mother Jyoti, 6. Gajanand S/o Madanlal, All are resident Of Manoharpur Tehsil Shahpura, District Jaipur (Raj.) ----Respondents

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[2025:RJ-JP:42925] (2 of 7)

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[CSA-452/2024]

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For Appellant(s)	: Mr. Raj Kumar Goyal for Mr. Ashish Sharma Upadhyay
For Respondent(s)	: Mr. Raghu Nandan Sharma Mr. Abhinav Srivastava
	Ms. Kritika Rajawat
	Mr. Ayush Bishnoi

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Judgment

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27/10/2025

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Heard counsel for both parties and perused the record.

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This Civil Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the legal representatives of the original plaintiff- Kailash, who had filed a civil suit for mandatory and permanent injunction on 28.08.1993. The civil suit was dismissed on merits by judgment dated 28.05.2012 passed by the Civil Judge, Shahpura, District Jaipur and the first appeal filed thereagainst, was also dismissed vide judgment dated 06.09.2024 by the Additional District Judge No. 2, Shahpura, District Jaipur. Hence, the present second appeal has been filed assailing both the judgments.

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It appears that the plaintiff and the defendants are neighbors, and the plaintiff claimed easementary right of opening his windows and ventilators towards the southern side in a gully measuring 3 feet. The plaintiff asserted his easementary right on the basis of a Panch Faisla dated 15.08.1993 (Exhibit–1). The Panch Faisla is an unregistered document, which was held to be inadmissible in evidence, however, it was allowed to be read as collateral evidence, vide order dated 25.01.1996.

[2025:RJ-JP:42925]

[CSA-452/2024]

(3 of 7)

Learned trial court, on appreciation of the Panch Faisla for collateral purposes, coupled with the oral evidence of both parties, recorded fact findings that at the time of execution of Panch Faisla , no windows or ventilators in the plaintiff’s house towards the southern side were open; rather, it was observed that only a wall was erected without flooring and roof. The trial court observed that later on, it appears the plaintiff opened his windows and ventilators towards the southern side in his wall, and since towards the southern side the Patta Shuda plot of the defendants is situated, the defendants erected an adjoining wall to the plaintiff’s wall and thereby closed the windows and ventilators. Thereafter, the plaintiff filed the present civil suit seeking mandatory injunction for removal of the defendants’ wall in order to allow opening of his windows and ventilators, as well as to have access to the gully measuring 3 feet.

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The trial Court, in the impugned judgment, held that the plaintiff miserably failed to establish his right. The plaintiff did not produce any evidence to show that his windows and ventilators were open at the time of the Panch Faisla . Indisputably, before filing the present civil suit, the windows and ventilators of the plaintiff’s house had already been closed by the defendants by erecting a pakka wall on their own land. The defendants produced the Patta dated 08.08.1984 issued by Nagar Palika, marked as Exhibit D/4. Thus, after appreciation of oral and documentary evidence, the trial Court concluded that the plaintiff does not have any right of easement or right of way in the alleged gully. The trial court observed that the alleged gully was agreed to be left between the parties under the Panch Faisla , and since the Panch

[2025:RJ-JP:42925]

[CSA-452/2024]

(4 of 7)

Faisla is an inadmissible document, it cannot be relied upon for proving the existence of the gully. The collateral purpose does not permit reading the Panch Faisla for the main object, for which it was executed. The trial Court clearly observed that, indisputably, the document of Panch Faisla does not depict the existence or opening of any windows, ventilators, etc., in the plaintiff’s house towards the defendants’ land. With such facts findings, the trial Court dismissed the plaintiff’s suit, vide judgment dated 28.05.2012.

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The plaintiff preferred a first appeal against the judgment of the trial court. The first appellate Court reconsidered/ reappreciated the entire evidence as a whole, and affirmed the findings of the trial court, and dismissed the first appeal, vide judgment dated 06.09.2024.

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Counsel for appellants, during the course of arguments, raised the contention that the appellants had filed an application under Order 41 Rule 27 CPC before the first appellate Court on 24.11.2023, which was not considered by the first appellate court, while dismissing the first appeal.

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In respect of the application under Order 41 Rule 27 CPC, it appears from the record that the appellants sought to produce a response from the Nagar Palika, Manoharpur to their application filed under the Right to Information Act, for obtaining the file of Patta dated 08.08.1984 (Exhibit D/4). Firstly, this document is neither material nor relevant to the issues involved in the present civil suit, since the defendants’ Patta (Exhibit D/4) is not under challenge at all. Secondly, from the record of the first appellate Court, it nowhere transpires that the appellants ever pressed their

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[CSA-452/2024]

(5 of 7)

application under Order 41 Rule 27 CPC, after filing the same, at the time of hearing of the appeal. Thus, it does not lie in the mouth of the appellants to contend that the first appellate Court did not consider their application under Order 41 Rule 27 CPC. Otherwise also, the document sought to be produced along with the said application, is neither relevant nor throws any light on the clinching issues involved in the first appeal. In that view, nonconsideration or non-adjudication of the application under Order 41 Rule 27 CPC does not lead to any miscarriage of justice nor give rise to any substantial question of law in the facts and circumstances of the present second appeal. 9. The issue relating to the claim of easementary right and right of way through a 3-feet-wide gully, is a mixed question of fact and law, which has already been adjudicated by the trial Court upon appreciation of evidence, and the judgment of the trial Court has been affirmed on merits by the first appellate Court. Such an issue does not give rise to any substantial question of law. It is the settled legal position that the involvement of a substantial question of law is sine qua non for entertaining a second appeal under Section 100 of the Code of Civil Procedure.

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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

(6 of 7)

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[CSA-452/2024]

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 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,

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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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(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.”

(7 of 7)

[2025:RJ-JP:42925]

[CSA-452/2024]

The Hon’ble Supreme Court in case C. Doddanarayan 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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As a final result, the present second appeal is devoid of substance & merits, hence same is hereby dismissed. No costs. 13. Record be sent back forthwith.

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

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(SUDESH BANSAL),J

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Sachin/S-59

Kailash S/O Bhooramal v. Murlidhar S/O Ramdas Santka

Case brief

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Kailash S/O Bhooramal v. Murlidhar S/O Ramdas Santka

Case brief

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