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Rajasthan High Court · body

2022 DIGILAW 2720 (RAJ)

Raghunath Prasad v. Babu Lal

2022-11-07

SUDESH BANSAL

body2022
JUDGMENT 1. Appellant-plaintiff has preferred this second appeal under Section 100 of CPC, feeling aggrieved by the judgment and decree dated 12.04.2007 passed in civil regular appeal No.58/2005 by Additional District Judge, No.2, Sikar whereby and whereunder the decree for permanent injunction passed by the Additional Civil Judge (Jr.D.) No.2, Sikar in civil suit No.168/2003 (174/98) vide judgment and decree dated 18.10.2004 in respect of ’gallery’ in question at first floor has been quashed and set aside and while dismissing the counter claim of respondent-defendants, the civil suit for permanent injunction filed by the appellant-plaintiff has also been dismissed. 2. Heard learned counsel for both parties, perused the impugned judgments and record. 3. It is not in dispute that both parties are neighbours and the gallery situated at ground floor is of common use by both parties as also by other persons. The dispute between the parties is only in respect of gallery situated at first floor, which is above to the gallery situated at ground floor. Plaintiff claimed his absolute ownership and use for the gallery at first floor, whereas defendants alleged that the gallery at first floor is also of common use by both parties. 4. The trial court, on the basis of evidence of plaintiff that he used to use the gallery, shifting the onus to prove the ownership of gallery upon defendants. 5. The first appellate court found such shifting of onus to prove the ownership upon defendants as illegal. The first appellate court has clearly observed in para 21 of the impugned judgment that the plaintiff has come out with a case claiming his absolute ownership and possession over the gallery in question situated at first floor, it is the burden of plaintiff to prove his averments of plaint. Since the plaintiff has miserably failed to produce any document or either cogent evidence to show his ownership and exclusive possession, therefore the first appellate court has reversed the findings and the decree for permanent injunction passed by the trial court. First appellate court has also noted that defendant (DW-1) and his witness (DW-2) have contended that the gallery in question at first floor is of common use. Therefore, it is not that case where on the gallery in question at first floor, defendants are claiming their exclusive right. First appellate court has also noted that defendant (DW-1) and his witness (DW-2) have contended that the gallery in question at first floor is of common use. Therefore, it is not that case where on the gallery in question at first floor, defendants are claiming their exclusive right. Rather, as per the findings of the first appellate court, the gallery in question situated at first floor has been treated as for common use by both parties just like as the gallery situated at first floor just beneath to the gallery in question is of common use between the parties. Findings on reversal by the first appellate court are based on due application of mind and within parameters of law as the trial court committed illegality in shifting the onus of ownership in respect of gallery in question from the plaintiff to defendants whereas no substantive evidence or any documentary evidence was produced by the plaintiff to prove his ownership and exclusive use. 6. Learned counsel for appellant-plaintiff fairly admits that the Gowadi in question is situated at Ward No.5, Sikar in respect of there is no title document in either of the parties. This Court finds that the first appellate court has not committed any illegality or jurisdictional error. The findings of first appellate court are just and proper. It is otherwise seems to be unusual and improper that when is undisputed and admitted case between the parties that gallery at ground floor in the Gowadi in question is for common use between the parties then whey the gallery in question which is just situated on the first floor above to the gallery at ground floor should not be treated as for common use by both parties. Thus, no substantial question of law is involved in the present second appeal 7. In Santosh Hazari Vs. Purushottamn Tiwari [ (2001) 3 SCC 179 ] the Apex Court held as under:- "A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ’substantial’, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be ’substantial’, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." 8. In Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3SCC 722] the Apex Court held as under:- "The findings of the first appellate court cannot be termed to be either perverse or based upon no evidence. Such findings are based upon appreciation of evidence and being the finding of the last court on facts were binding upon the parties." 9. Both aforesaid judgments have been relied upon and affirmed by the Hon’ble Supreme Court in the case of C. Doddanrayana Reddy and Ors. Vs. C. Jayarama Reddy and ors. [ (2020)4 SCC 659 ], for not interfering with findings of the first appellate court. Thus, there is no dispute about proposition of law that the first appellate court has jurisdiction to upset the judgment and findings of the trial court, if the same are perverse and contrary to the settled proposition of law. 10. This Court finds that the first appellate court has acted well within its jurisdiction and the reversal of findings are based on due appreciation of evidence by assigning reasons. Such findings do not suffer from any perversity. 10. This Court finds that the first appellate court has acted well within its jurisdiction and the reversal of findings are based on due appreciation of evidence by assigning reasons. Such findings do not suffer from any perversity. Learned counsel for appellant also could not point out that findings of first appellate court suffer from any infirmity/illegality or misreading/non-reading of evidence. No substantial question of law arises in the present appeal, substantial question of law is sine qua non for exercising the jurisdiction under Section 100 CPC and to entertain the second appeal. Hence, the second appeal is found to be devoid of merits and the same is dismissed. No costs. 11. All other pending application(s), if any, also stand(s) disposed of. 12. Record of sent back forthwith.