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2011 DIGILAW 324 (RAJ)

Shanti Devi Sharma v. Nagar Nigam, Jaipur

2011-02-11

NARENDRA KUMAR JAIN

body2011
JUDGMENT 1. - Heard learned counsel for the appellant. 2. Plaintiff-appellant filed a suit for permanent injunction in respect of disputed property on the ground that she purchased the property in dispute after payment of sale price to defendants. Thereafter, a permission to raise construction was also granted to the plaintiff, but when the plaintiff wanted to raise construction, then the defendants restrained the plaintiff from raising any construction over the property in dispute, therefore, the defendants may be restrained not to put any hindrance in raising construction over the property in dispute. 3. The defendants filed their written statement, wherein it was pleaded that disputed property is a part of public way i.e. public property, therefore, it could not have been allotted or sold by the defendants, although an application was filed for sale of the land in dispute by the plaintiff, but since the same was ultimately found to be a part of public way/public land, therefore, no allotment order was issued in favour of the plaintiff and no sale deed has been executed in favour of the plaintiff. 4. Learned trial court framed six issues. The plaintiff did not examine herself but examined P.W. 1, Mahesh Chand Agarwal and produced documentary evidence Exhibit-1 to Exhibit-9. No evidence was led on behalf of the defendants. Learned trial court while considering Issue No. 1 recorded a finding that although, the disputed property is a part of public land, but since the plaintiff is in possession of the disputed property, therefore, she may not be dispossessed without due process of law. In these circumstances, learned trial court partly decreed the suit of the plaintiff and restrained the defendants from dispossessing the plaintiff from the disputed property without due process of law. Trial court also restrained the defendants from selling the disputed property to any other person in future on lease or license and not to transfer the same to any other person. Being aggrieved with the same, an appeal was preferred by the plaintiff, but the same was dismissed by the first appellate court. Hence, this second appeal has been preferred by the plaintiff-appellant. 5. Submission of learned counsel for the appellant is that since the plaintiff purchased the property in dispute, therefore, she had every right to raise construction over it. Being aggrieved with the same, an appeal was preferred by the plaintiff, but the same was dismissed by the first appellate court. Hence, this second appeal has been preferred by the plaintiff-appellant. 5. Submission of learned counsel for the appellant is that since the plaintiff purchased the property in dispute, therefore, she had every right to raise construction over it. The trial court and the first appellate court both committed an illegality in not decreeing the entire suit of the plaintiff. 6. I have considered the submissions of learned counsel for the appellant in the light of reasons assigned by the trial court as well as the first appellate court. 7. Learned counsel for the appellant does not dispute that plaintiff Smt. Shanti Devi Sharma did not examine herself as plaintiff's witness, in support of her case. P.W.1, Mahesh Chand Agarwal was only a neighbour of the plaintiff and he had no personal knowledge about the case of the plaintiff. A specific question was put to P.W. 1, Mahesh Chand Agarwal by the defendants at the time of his cross-examination that permission to raise construction, which was granted to the plaintiff, has been cancelled on 24.12.1991 and reply of P.W. 1, Mahesh Chand Agarwal was that he has no knowledge about it. Both the courts below have held that no allotment letter has been issued to the plaintiff. No sale deed has been executed in her favour. The permission to raise construction, which was granted to the plaintiff, has been cancelled on 24.12.1991. This fact has not been denied by P.W.1, Mahesh Chand Agarwal in his cross-examination. 8. The above factual aspect has not been disputed by learned counsel for the appellant during course of arguments, therefore, it can easily be inferred that there is no illegality or perversity in the finding of learned trial court. 9. The issues involved in the present case are relating to questions of facts and there is concurrent finding of fact by both the courts below, which cannot be interferred with by this Court in second appeal under Section 100 C.P.C. 10. No substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine.Appeal dismissed. *******