Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 2314 (RAJ)

Gyarsi Lal v. Gopal

2022-08-26

SUDESH BANSAL

body2022
JUDGMENT 1. Appellant-plaintiff has preferred this second appeal under Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 18.04.2015 passed in Civil First Appeal No.16/12 (249/07) by the Court of Additional District Judge No.10, Jaipur Metropolitan, Jaipur, affirming the judgment and decree dated 31.07.2007 passed in Civil Suit No.90/07 by the Court of Civil Judge (Junior Division), Jaipur City (West), Jaipur whereby and whereunder the civil suit for permanent injunction instituted by appellant-plaintiff has been dismissed on merits. 2. Heard learned counsel for both parties, perused impugned judgments and scanned the record. 3. It appears from the pleadings of parties that the plaintiff has come out with a case that a peace of land relating to Plot No.6 measuring 1514.23 Sq. yards was allotted to him by Mitra Grah Nirman Cooperative Society Limited, Jaipur and he acquired the ownership and possession of that plot. The plaintiff himself has admitted in the plaint that the possession of his plot was given by him to defendant No.1 Gopal lal for the purpose of establishing and running a lathe machine. Thus, it is undisputed fact as per plaint that plaintiff is out of possession of the suit plot, on the date of institution of present suit for permanent injunction. The plaintiff has asked for a decree of permanent injunction stating inter alia that defendant No.1, having collusion with other defendants No.2 to 5, is inclined to raise construction over the suit plot and therefore, he prayed for passing a decree for injunction in his favour that defendants be restrained not to raise construction nor to obstruct the plaintiff from his movement in the suit plot and further defendants be restrained not to sell, alienate or otherwise transfer the suit plot. 4. Defendants have submitted a joint written statement and categorically denied the allotment of suit plot in favour of plaintiff as also contended that plaintiff is neither owner nor ever remained in possession of suit plot and his suit for permanent injunction is wholly against the law and not maintainable. 4. Defendants have submitted a joint written statement and categorically denied the allotment of suit plot in favour of plaintiff as also contended that plaintiff is neither owner nor ever remained in possession of suit plot and his suit for permanent injunction is wholly against the law and not maintainable. Defendants also contended in their written statement that as a matter of fact, six separate plots were allotted to defendants vide allotment letters dated 28.07.1988 and details of measurement of plots and the persons to whom these plots were allotted by the Mitra Grah Nirman Cooperative Society, have been mentioned in para No.4 of special pleas of written statement. 5. It is clear from pleadings of parties that the plaintiff’s claim of ownership over the suit plot is disputed and has already come under clouds once the same was challenged by defendants and where the defendants have claimed their ownership on the suit plot on the basis of allotment letters as mentioned in the written statement. However, the plaintiff persuaded with the present suit, which was only in the nature of permanent injunction. 6. Learned trial court framed issues and recorded evidence of both the parties. Thereafter, the trial court has recorded a finding of fact that it is not proved that the suit plot having an area of 1514.23 Sq. yards was allotted to plaintiff and the suit plot ever remained in possession of plaintiff. The trial court with such fact finding, dismissed the plaintiff’s suit for permanent injunction vide judgment and decree dated 31.07.2007. 7. Plaintiff preferred the first appeal against the judgment and decree dated 31.07.2007. The first appellate court re-heard the matter as a whole and observed in its judgment and decree dated 18.04.2015 that the scope of present suit is confined to permanent injunction and the inquiry of title/ownership of parties is not warranted. However, in order to examine the issue as to whether the plaintiff is entitled for the decree of permanent injunction, the first appellate court examined the factum of ownership and possession of plaintiff in that context. The first appellate court too observed that plaintiff is neither owner nor came in possession over the suit plot at any point of time. Finally, the first appeal was dismissed, affirming the judgment and decree dated 31.07.2007 passed by the trial court. 8. The first appellate court too observed that plaintiff is neither owner nor came in possession over the suit plot at any point of time. Finally, the first appeal was dismissed, affirming the judgment and decree dated 31.07.2007 passed by the trial court. 8. Having heard counsel for both parties and in the backdrop of pleadings and material come on record, it is not in dispute that although plaintiff claimed his ownership over suit plot, however, his claim of ownership came under clouds and his ownership was disputed and denied by defendants, contending that ownership of six plots as detailed out in written statement, rests and vests with defendants. It is an undisputed, rather admitted, fact that on the date of institution of the suit, the plaintiff was not in possession of the suit plot and possession of the suit plot was laying with defendants. In such scenario, this Court is of unequivocal opinion that the plaintiff’s suit for simplicitor injunction is not liable to succeed, in any manner. 9. Hon’ble the Supreme Court in case of Anathula Sudhakar Vs. P. Buchi Reddy and Ors. [ (2008) 4 SCC 594 ], considered such an issue elaborately and after considering the catena of previous judgments, finally observed that where the plaintiff is in possession, but his title to the property is in dispute, or under cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of the title and the consequential relief of injunction. Another aspect was clarified that where the title of plaintiff is under cloud or in dispute and plaintiff is not in possession or not able to establish his possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. In another case of Sajjadanashin Sayed Md. B.E. Edr. Vs. Another aspect was clarified that where the title of plaintiff is under cloud or in dispute and plaintiff is not in possession or not able to establish his possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. In another case of Sajjadanashin Sayed Md. B.E. Edr. Vs. Musa Dadabhai Ummer [ (2005) 6 SCC 202 ], Hon’ble the Supreme Court expounded the following proposition of law: "Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title." Applying the aforesaid ratio decindedi of law to facts of the present case, the plaintiff is admittedly out of possession and his claim for ownership has been disputed and denied by defendants as such has come under clouds, therefore, the trial court and the first appellate court have not committed any jurisdictional error in dismissing the plaintiff’s suit for permanent injunction. 10. After the discussion made hereinabove, this court is not inclined to interfere with the impugned judgments, otherwise also there is no substantial question of law involved in the present second appeal and counsel for appellant could not point out any perversity or infirmity in the fact findings so as to give rise to any substantial questions of law. 11. Recently, Hon’ble the Hon’ble Supreme Court in case of State of Rajasthan vs.Shiv Dayal [ (2019) 8 SCC 637 ], discussed the scope of High Court to interfere with the concurrent findings of fact while exercising the jurisdiction under Section 100 of CPC and it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Supreme Court held as under: "When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)." The aforementioned judgment followed by Hon’ble the Supreme Court in case of C. Doddanarayan Reddy and Ors. Vs. C. Jayarama Reddy and ors. Reported in [ (2020) 4 SCC 659 ]. 12. It is settled proposition of law that involvement/formation of substantial question of law is sine quo non to entertain the second appeal. Resultantly, the second appeal is devoid of merits, having involvement of no substantial question of law and the same is hereby dismissed. 13. There is no order as to costs. 14. All other pending application(s), if any, also stand(s) disposed of. 15. Record of both the courts below be sent back forthwith.