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2021 DIGILAW 883 (RAJ)

Abdul Javed v. Shravan Kumar

2021-04-27

ARUN BHANSALI

body2021
JUDGMENT 1. This second appeal under Section 100 CPC is directed against the judgment & decree dated 04.08.2011 passed by Additional District Judge, Deedwana ('the first appellate court') affirming the judgment & decree dated 28.08.2008 passed by Civil Judge (Sr. Division), Deedwana ('the trial court'), whereby the suit filed by the appellant-plaintiff, was dismissed. 2. The predecessor of plaintiff-Kailash Chandra filed a suit, inter alia, with the submissions that a piece of land was purchased by plaintiff's father in Village - Baliya, which his father Jugal Kishore gifted to plaintiff-Kailash Chandra, which was indicated as CDEF in the plan annexed to the plaint. 3. It was alleged that on the western side of the land, the respondent has put an Almirah on the land of the way, started hotel business, regarding which, complaints were made to the Gram Panchayat, however, no action was taken. Subsequently, the plaintiff came to know that the respondent has got issued a patta of the land and obtained permission for construction, for which he applied to the Gram Panchayat for supplying of the copies, however, the same were not issued. It was alleged that on the western side of the plaintiff's land, government road at a distance of about 43.5 feet was situated and on account of construction of hotel by the respondent on 30 X 15 feet land, he had grabbed land of common way. It was prayed that the patta may be cancelled and by way of permanent injunction, respondent be restrained from raising any construction and whatever obstructions he has raised, may be ordered to be removed. 4. The respondent-defendant filed written statement and denied the plaint allegations. It was stated that the defendant was in possession of the land for a long time and that he has obtained patta from the Gram Panchayat, which was issued on the basis of possession and that the land was not that of way. It was contended that Gram Panchayat Baliya was a necessary party. 5. The plaintiff got the suit amended and sought relief of declaring the patta as illegal. 6. On the pleadings of the parties, several issues were framed by the trial court and the suit was decreed on 26.11.1990. 7. It was contended that Gram Panchayat Baliya was a necessary party. 5. The plaintiff got the suit amended and sought relief of declaring the patta as illegal. 6. On the pleadings of the parties, several issues were framed by the trial court and the suit was decreed on 26.11.1990. 7. Feeling aggrieved, the defendant filed first appeal, which came to be decided by the Additional District Judge, Deedwana on 16.03.2005 and the matter was remanded back to the trial court to redecide the same. 8. Before the trial court on remand, the present appellant filed an application under Order I, Rule 10 CPC submitting that he has purchased the land from the plaintiff-Kailash Chandra and, therefore, he may be impleaded as party, the trial court by its order dated 11.07.2005 impleaded the present appellant as plaintiff. The written statement was also allowed to be amended as per direction of the appellate court on an application filed by the defendant under Order VI, Rule 17 CPC. 9. The trial court after recording the evidence of the parties by its impugned judgment dated 28.08.2008, dismissed the suit of the plaintiff-appellant. 10. Feeling aggrieved, the appellant filed first appeal. The first appellate court by its judgment and decree dated 04.08.2011, dismissed the appeal filed by the appellant and affirmed the judgment and decree dated 28.08.2008. 11. It is submitted by learned counsel for the appellant that both the courts below gravely erred in law in deciding issue No.3 against the plaintiff by wrongly framing the same, as the same was not based on the case of any of the parties. It was emphasized that the defendant, was occupying the land, which could not have been allotted by the Gram Panchayat and as such, the two courts below fell in error in dismissing the suit and the appeal filed by the appellant. It was submitted that the findings recorded by both the courts below give rise to substantial question of law and as such, the same deserves to be admitted. 12. Learned counsel for the respondent vehemently opposed the submissions. It was submitted that both the courts below have concurrently held in favour of the appellant on the factual aspect and as such, the same do not give rise to any substantial question of law. 13. 12. Learned counsel for the respondent vehemently opposed the submissions. It was submitted that both the courts below have concurrently held in favour of the appellant on the factual aspect and as such, the same do not give rise to any substantial question of law. 13. Further submissions were made that from the documents of the predecessor of the plaintiff-Kailash Chandra filed as Exhibit-A3, A4 and A6, it is apparent that the entire case sought to be projected by the plaintiff, was totally baseless and as such, the two courts below were justified in rejecting the suit as well as the appeal and, consequently, the appeal deserves to be dismissed. 14. I have considered the submissions made by learned counsel for the parties and have perused the material available on record as well as record of the two courts below. 15. The trial court in its original judgment dated 26.11.1990, decreed the suit. The first appellate court, while deciding the appeal on 16.03.2005, inter alia, observed as under:- 16. The trial court, after remand in its judgment dated 28.08.2008, came to a categorical conclusion based on the documents (Exhibit - A3 and A4) that the predecessor of the plaintiff himself in his application made to the Gram Panchayat had indicated the distance of the road at 80 feet / 100 feet from his land and as such, it could not be said that the defendant's land fell within 50 feet of the middle of the road and as such, decided the relevant issues against the plaintiff and the first appellate court, reiterated the said finding. 17. The submissions made that the trial court has wrongly framed issue No.3, cannot be countenanced as the issue No.3 was framed based on the directions given by the first appellate court while remanding the case and admittedly, the order of remand was not challenged by the appellant, which is now not open to challenge in view of the express provisions of Section 105(2) CPC. 18. 18. A perusal of the documents, relied on by both the courts below clearly depicts that the predecessor of the plaintiff Jugal Kishore himself on an application made to Gram Panchayat on 02.04.1979 (Exhibit-A3), annexed map (Exhibit - A4), wherein the distance of the road from the boundary was shown at 80 feet on one end and 100 feet on another end from the road, which necessarily means that the same could not in any case be within 50 feet from the middle of the road in question. 19. Even the map annexed with the plaint, indicate the distance of the road at 43.5 feet, as to how the distance as was indicted in Exhibit - A4 was reduced from 80 feet/100 feet to 43.5 feet only has not been explained and besides the same, the said distance of43.5 feet has also been shown till the beginning of the road and the width of the road has not been indicated and as such, it cannot be said that the plea sought to be raised by the plaintiff seeking to allege the disputed patta within 50 feet from centre of the road was in any manner proved. 20. As both the courts below have concurrently found in favour of the defendant and counsel for the appellant failed to point out any perversity in the concurrent findings recorded by two courts below, the same do not give rise to any substantial question of law. 21. Consequently, the appeal filed by the appellant has no substance, the same is, therefore, dismissed.