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2017 DIGILAW 477 (RAJ)

Navratan S/o Ramchandra v. Gyan Chand S/o Gopi

2017-02-09

JAINENDRA KUMAR RANKA

body2017
ORDER : Jainendra Kumar Ranka, J. Plaintiff-appellants have filed this second appeal challenging judgment and decree dated 24.3.2015 passed by learned Additional District Judge, Dausa, District Dausa, whereby he affirmed judgment and decree dated 27.5.2010 passed by learned Civil Judge (Junior Division), Dausa, in Civil Suit No.49/2004. 2. Plaintiff-appellants filed a suit for permanent injunction and declaration against defendant-respondents in respect of the land in question on the basis of long peaceful possession for last more than sixty years, which was objected by defendant-respondents by filing written statement stating that the plaintiff-appellants have filed the suit to regularize their encroachment over the land in question, which is meant for the temple. Learned court below, considering the arguments of both the parties as also the evidence adduced on their behalf, dismissed the suit vide judgment and decree dated 27.5.2010, which has been affirmed by learned first appellate court vide impugned judgment and decree dated 24.3.2015. Hence this second appeal on behalf of plaintiff-appellants. 3. Learned counsel for the plaintiff-appellants argued that the plaintiff-appellants moved an application dated 15.2.2012 for appointment of receiver but learned first appellate court rejected the same without considering that it was obligatory to appoint receiver so that correct status of the land in question could have come on record. The evidence adduced by the plaintiff-appellants specifically established that the land in question is in their possession since the time of their ancestors. Had the learned first appellate court summoned the report of the Commissioner, the correct status of the land would have come on record. The plaintiff-appellants have been using the land in question and construction has been raised thereon of toilet, bathroom and boundary wall. The land in question is situated in front of the house of the plaintiff-appellants. Exhibit P-3 is a public document which states that the land in question is in possession of the plaintiff-appellants. The witnesses of the defendants have also admitted existence of bathroom on the land in question. 4. Having heard learned counsel for the plaintiff-appellants and perused the material on record, this court does not find any infirmity or illegality and material irregularity in the impugned judgments. From the evidence, oral as well as documentary, adduced on behalf of both the parties, it is established that a temple exits on the land in question and a well is also there. From the evidence, oral as well as documentary, adduced on behalf of both the parties, it is established that a temple exits on the land in question and a well is also there. The plaintiff-appellants even have not produced any documentary evidence to prove existence of water connection on the land in question. They have not even produced any reliable documentary proof establishing their possession and title thereon. Thus, the plaintiff-appellants have utterly failed to prove their possession over the land in question as claimed. The plaintiff-appellants have also failed to prove that they do not have any alternative way to enter their house. From the document Exhibit A-4 it is established that the plaintiff-appellants have themselves admitted that they do not have any ownership or title on the land except the land measuring 14x7 yard of their house for which part of the land has been issued to them on lease by Nagar Palika. 5. The entire argument of the learned counsel for the plaintiff-appellants is based on appreciation of evidence. His contention is that this court should re-appreciate the evidence and reverse the findings of the courts below in respect of facts even, which is not permissible in second appeal under Section 100 of the CPC. 6. I have considered the submissions of learned counsel for the plaintiff-appellants in the light of the findings of both the courts below and I find that the issues involved in the present case relate to question of fact and there is concurrent finding of fact returned by both the courts below, which cannot be interfered by this court in second appeal. 7. Consequently, the appeal being devoid of merits, is dismissed as even otherwise no perversity is noticed in the impugned judgment and decree.