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2022 DIGILAW 1714 (RAJ)

Vijay Laxmi v. State Of Rajasthan

2022-05-23

SUDESH BANSAL

body2022
JUDGMENT 1. Appellant-plaintiff has filed this second appeal under Section 100 CPC assailing the judgment and decree dated 10.12.2015 passed in Civil Regular First Appeal No.35/2011 by the Additional District Judge, Malpura, District Tonk affirming the judgment and decree dated 20.10.2011 passed in Civil Suit No.44/2009 by the Civil Judge (Junior Division), Malpura, District Tonk whereby and whereunder the appellant-plaintiff's suit, for declaration of the mutation entries dated 20.09.1977 and alternatively for claiming compensation as well as permanent injunction in relation to a way in question through her agricultural land, was dismissed on merits as well as on limitation. 2. The relevant facts, succinctly stated, are that during lifetime of plaintiff's father-in-law, namely Shri. Mangilal, out of his khatedari land of Khasra No.774, 11 biswa land was taken for the purpose of a public way and this part was separated from his agricultural lands, by marking it as Khasra No.774/1 vide order dated 16.09.1977. The area of road, was entered into the name of P.W.D on 20.09.1977 and the record, of mutation & Jamabandi (Ex.2 & Ex.3), is available on record. It is not in dispute that much thereafter, plaintiff got married with son of khatedaar-Mangilal on 13.06.1982, and her husband passed away on 11.06.1984. The plaintiff filed the present civil suit on 10.06.2009, assailing the mutation entries dated 20.09.1977, it means after expiry of near about 32 years. It has come on record that the plaintiff does not dispute that since time of her father-in-law, the land in question of 11 biswa was/is being used for the way by villagers and a pakki road has already been constructed by the P.W.D, prior to her marriage. 3. In such backdrop of facts, the trial court, vide judgment dated 20.10.2011, dismissed the plaintiff's suit on the ground of limitation as well as on merits. The trial court observed that for the present nature of suit for declaration, the prescribed limitation is three years, which has expired during lifetime of plaintiff's father-in-law Mangilal. The suit filed by plaintiff after expiry of 32 years, cannot be treated within limitation by any stretch of imagination. The trial court observed that that the way in question is being used by villagers and to whom the easmentary right has already been vested to have their access to the way in question. 4. The suit filed by plaintiff after expiry of 32 years, cannot be treated within limitation by any stretch of imagination. The trial court observed that that the way in question is being used by villagers and to whom the easmentary right has already been vested to have their access to the way in question. 4. The plaintiff assailed the judgment and decree dated 20.10.2011 by way of filing first appeal. The first appellate court, reconsidered all the issues and re- heard the matter as a whole. The first appellate court recorded findings of fact on the basis of admission of plaintiff (PW.1) herself that the road, from Malpura to Kekri through Khasra Nos.774 & 775, is available and open for ingress/egress of the villagers and their vehicles since 1980 onwards. The pakki road is constructed thereupon. The first appellate court also found the plaintiff's suit hopelessly barred by limitation and accordingly dismissed the first appeal vide judgment and decree dated 10.12.2015. 5. Heard counsel for appellant and perused the impugned judgments and record of the both courts below. 6. This Court finds that both courts have considered the issue of limitation after recording evidence of the plaintiff. It has been concurrently held that the mutation entry No.239 dated 20.09.1977 has been challenged by way of filing civil suit after 32 years on 10.06.2009. It has been observed that the dispute is about the 11 biswa land, which has already been mutated in the name of PWD for the purpose of using the way/road for the villagers. It has been observed that the road is being used for the villagers for ingress/egress of their vehicles. It has been further observed that plaintiff herself admits that the existence of road is much prior to her marriage on 30.06.1982. It was observed that the plaintiff's father-in-law Mangilal did not object about carving out the road from the Khasra No.774 and the limitation to raise issue, as raised by the plaintiff in the present suit had already been expired during lifetime of plaintiff's father-in-law. The fact findings recorded by both courts below are based on appreciation of evidence and material available on record. 7. It is trite law that the High Court, while exercising its power under Section 100 CPC, is not required to re-appreciate the evidence as a whole to draw a different conclusion than drawn by the courts below. The fact findings recorded by both courts below are based on appreciation of evidence and material available on record. 7. It is trite law that the High Court, while exercising its power under Section 100 CPC, is not required to re-appreciate the evidence as a whole to draw a different conclusion than drawn by the courts below. Counsel for appellant could not point out any perversity that the fact findings are erroneous or suffer from misreading/non-reading of evidence and lead to miscarriage of justice. The issue of limitation may not be treated as a technical issue but it is an issue of fact and law in the given facts and circumstances. 8. The substantial questions of law as proposed by appellant- plaintiff are essentially questions of fact which requires re- appreciation of evidence. Re-appreciation of evidence is not permissible within scope of Section 100 of CPC, unless and until there is some illegality or perversity in findings of impugned judgments. None of the question of law, falls within purview of substantial question of law. In order to exercise the scope of Section 100 of CPC, involvement/formulation of substantial question of law is sine qua non. Otherwise also, it is a case of concurrent findings of facts even if erroneous cannot be disturbed in exercise of powers under Section 100 CPC as has been held by Hon'ble Supreme Court in case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [ (1999) 3 SCC 722 ] and catena of other judgments passed in case of Narayanan Rajendran and Anr. v. Lekshmy Sarojini and Ors. Reported in [ (2009) 5 SCC 264 ], C.Doddanarayana Reddy (Dead) By Lrs. & Ors. v. C. Jayarama Reddy (Dead) by Lrs. & Ors. Reported in [ (2020) 4 SCC 659 ], Pakeerappa Rai v. Seethamma Hengsu & Ors., [ (2001) 9 SCC 521 ], Thulasidhara & Anr. v. Narayanappa & Ors., [ (2019) 6 SCC 409 ], Bholaram v. Ameerchand, [ (1981) 2 SCC 414 ], Ishwar Das Jain v. Sohan Lal, [ (2000) 1 SCC 434 ] and State of Madhya Pradesh v. Sabal Singh & Ors., [ (2019) 10 SCC 595 ]. 9. In view of concurrent findings of fact, which are based on appreciation of evidence, this Court is not inclined to interfere with the findings more so, when no substantial question of law arises in the present case. 10. 9. In view of concurrent findings of fact, which are based on appreciation of evidence, this Court is not inclined to interfere with the findings more so, when no substantial question of law arises in the present case. 10. After the discussion made hereinabove, since no substantial question of law has been found involved in the present second appeal, the same is not liable to be entertained and accordingly, this second appeal is hereby dismissed. 11. All other pending application(s), if any, also stand(s) disposed of. 12. Record of both the courts be sent back. 13. There is no order as to costs.