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Rajasthan High Court · body

2011 DIGILAW 322 (RAJ)

Hardei(Mst. ) v. Jagdish Prasad

2011-02-11

NARENDRA KUMAR JAIN

body2011
JUDGMENT 1. - Heard learned counsel for the appellant. 2. Plaintiffs/respondents filed a suit for permanent injunction in respect of property in dispute on the ground that they are the legal owner of the property in dispute and defendants are unnecessarily making interference in the same, therefore, they may be restrained by passing a suitable decree for permanent injunction in favour of plaintiffs and against defendants. The suit was contested by the defendants by filing written statements. 3. The learned trial Court framed four issues. Issue No.1 was whether plaintiff is owner and in possession of the disputed property. Issue No.2 was whether defendants want to take possession of the disputed property. Both the parties led their evidence. The learned trial Court decided all the issues in favour of plaintiff and against defendants. The learned trial Court in para 13 of the judgment also observed that defendants had pleaded in their written statements that disputed land is agriculture land, therefore, the trial Court has no jurisdiction, but neither any issue was framed in this regard nor the same was pressed during the course of arguments. 4. The learned trial Court also observed that one another suit in respect of same land was decided and a copy of the said judgment is available as Exhibit-13, wherein it was held that Civil Court has jurisdiction to entertain and decide the suit. Consequently, the trial Court decreed the suit of plaintiff and restrained the defendants as per prayer made in the plaint. 5. Being aggrieved with the judgment and decree passed by the trial Court, the defendants preferred regular first appeal but the same was dismissed by the First Appellate Court vide impugned judgment and decree dated 07.01.2009, which is under challenge in this second appeal preferred on behalf of defendant No.1/5 only. 6. Submission of learned counsel for appellant is that property in dispute was in possession of plaintiff, findings of both the Courts below are not correct on Issue Nos.1 and 2, therefore, this is a fit case for interference in the finding of both the Courts below. 7. I have considered the submissions of learned counsel for appellant in the light of reasons assigned by the trial Court as well as Appellate Court while decreeing the suit of plaintiffs/respondents. 8. Issue Nos. 7. I have considered the submissions of learned counsel for appellant in the light of reasons assigned by the trial Court as well as Appellate Court while decreeing the suit of plaintiffs/respondents. 8. Issue Nos. 1 and 2, both, are relating to question of facts and both the Courts below have recorded a concurrent finding of facts after appreciation of evidence available on record in favour of plaintiff. 9. I do not find any illegality or perversity in the said findings recorded by both the Courts below. Concurrent finding of facts recorded by both the Courts below cannot be interferred with by this Court in second appeal under Section 100 CPC. 10. No substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine.Appeal dismissed. *******