Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 211 (RAJ)

Chhagan Lal v. Jitu Anr.

2014-01-16

ARUN BHANSALI

body2014
JUDGMENT 1. - This appeal under Section 100 CPC is directed against judgment and decree dated 07.08.2008 passed by Civil Judge (Junior Division), Kapasan as upheld by appellate judgment and decree dated 04.11.2008 passed by District Judge, Chittorgarh. 2. The appellants-plaintiffs filed suit for permanent injunction seeking restraint against the respondents-defendants from raising construction over the disputed site without partition and not to dispossess them from the joint possession. The suit was inter alia based on the claim that the disputed 'Guwari' was joint ancestral property and, by way of partition 40 years back, the said Guwari fell in the share of father of the plaintiffs and defendants, who were brothers and one more Guwari fell in the share of the 4th brother. The defendants were seeking to raise construction on the said Guwari and they had dug foundation for the said purpose and such construction would result in their dispossession from the said Guwari. 3. A written statement was filed by the defendants disputing the claim that the property in question was joint and, inter alia, indicating that the plaintiffs have no right, title or possession on the suit property and the defendants have the right to raise construction. 4. The trial court framed three issues and after evidence was led by the parties, it came to the conclusion that it was not proved that in the disputed Guwari the defendants have any share and the partition, which took place 40 years back, any right was retained. It also recorded a finding that the plaintiffs were not in possession of the suit property and, therefore, held that it was not proved that they have any right in the disputed Guwari and that they are in joint possession. The trial court also came to the conclusion that in absence of possession, the simple suit for permanent injunction was not maintainable. Consequently, the trial court dismissed the suit filed by the plaintiffs. 5. The trial court also came to the conclusion that in absence of possession, the simple suit for permanent injunction was not maintainable. Consequently, the trial court dismissed the suit filed by the plaintiffs. 5. Feeling aggrieved by the dismissal of the suit, the appellants approached the first appellate court, who by its impugned appellate judgment and decree, came to the conclusion that as PW-2 Kishan Lal admitted in his cross examination that the defendants were residing in the Guwari for 40-50 years, it was proved that the plaintiffs were not in physical possession of the suit property and reiterated the finding of the trial court that in absence of possession, the simple suit for permanent injunction was not maintainable. Consequently, the first appeal filed by the appellants was also dismissed. 6. I have perused the judgments and have gone through the records of both the courts below. 7. The trial court after thoroughly analyzing the oral and documentary evidence available on record came to the conclusion that the plaintiffs had failed to prove that they have any share in the disputed Guwari and, as they have no right, there is no question of any constructive possession and as per the case of plaintiffs themselves they are not in physical possession and it further came to the conclusion that in absence of any physical possession, the plaintiffs were not entitled to seek any permanent injunction. 8. The first appellate court, while it did not discuss/disturb the finding regarding the ownership right of the plaintiffs as recorded by the trial court, it upheld the finding regarding absence of physical possession of the plaintiffs and consequential non maintainability of the suit. 9. From the bare perusal of the plaint averments, it is apparent that the plaintiffs have sought permanent injunction without even seeking partition of the suit property and no averments have been made in the suit so as to allege about any potential harm to the suit property on account of construction being raised by the defendants, therefore, even if, the averments made by the plaintiffs in their plaint were to be taken on face value, in absence of physical possession of the suit property, the suit was not maintainable seeking permanent injunction against the defendants from using the suit property. 10. In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed. 10. In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed. The stay application is also dismissed. No costs.Appeal Dismissed. *******