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2023 DIGILAW 1345 (RAJ)

Shankar Lal Meena S/o Shri Harbaksh Meena v. Kajod Mal Meena S/o Shri Raghunath Meena

2023-07-11

MAHENDAR KUMAR GOYAL

body2023
JUDGMENT : 1. This civil second appeal has been preferred by the appellants/defendants (for brevity, the defendants”) against the judgment and decree dated 07.12.2021 passed by the learned Additional District Judge No.1, Jaipur District, Jaipur (for brevity, the learned Appellate Court”) in Civil Regular Appeal No.1/2018(33/2018) (NCV No.33/2018) whereby, while allowing the appeal preferred by the respondents, the judgment and decree dated 31.05.2018 passed by the learned Civil Judge, Jamwaramghar, Jaipur District, Jaipur (for brevity, the trial Court) dismissing the Civil Original Suit No.80/2017(159/2007), have been reversed and the suit for permanent injunction has been decreed. 2. The relevant facts in brief are that the predecessor-in-interest of the respondents-Shri Kajod Mal Meena (“plaintiff”) filed a suit for permanent injunction against the defendants stating therein that he was issued a patta of the subject land admeasuring 204 Sq. Yards by the Gram Panchayat Bhawani on which he was residing with his family raising construction of a residential house. Alleging that the defendants were trying to encroach upon the land of his plot, he filed the suit for decree as aforesaid. During its pendency, he filed amended suit stating therein that despite interim order of the Court, the defendants have encroached upon a part of his land. 3. The defendants in their joint written statement submitted that the plaintiff has obtained patta fraudulently. It was averred that no house of the plaintiff exists on 204 Sq. Yards of land as claimed. Any encroachment on his land was denied by them. 4. On the basis of pleading of the parties, the learned trial Court framed seven issues including relief. After recording evidence of the respective parties, the learned trial Court dismissed the suit vide its judgment and decree dated 31.05.2018 holding that the plaintiff could not establish his possession over the entire subject land prior to filing of the suit. The civil first appeal preferred thereagainst by the plaintiff has been allowed by the learned Appellate court vide judgment and decree dated 07.12.2021 and the suit has been decreed. 5. The civil first appeal preferred thereagainst by the plaintiff has been allowed by the learned Appellate court vide judgment and decree dated 07.12.2021 and the suit has been decreed. 5. Assailing the impugned judgment and decree, learned counsel for the defendants, inviting attention of this Court towards the averments of the plaint and statements of the plaintiff-Kajod Mal Meena (PW-1) and his witness Shri Jagdish Narayan Meena (PW-2), would submit that the plaintiff did not specify the portion which was in his possession and which the defendants have encroached upon and further that the plaintiff has failed to establish his possession over the subject land at the time he filed the suit. Learned counsel submitted that to get the decree of permanent injunction, it was obligatory for the plaintiff to have established his possession over the entire subject property prior to filing of the suit in which he miserably failed. He submitted that in absence of possession, no decree of injunction could have been passed. He, in support of his submissions, relied upon following judgments: (1) Sebastiao Luis Fernandes (Dead) through Lrs. & Ors. Vs. K.V.P. Shastri (Dead) through Lrs. & Ors.: 2014(1) WLC (SC) Civil 158. (2) Dhanraj Vs. The State of Rajasthan Through the Collector, Hanumangarh: 2017(2) WLC (Raj.) UC 723. (3) Radheshyam Son of Shri Kanhaiyalal & Ors. Vs. Shri Keshar Dev & Ors.: 2023(1) WLC 272(Raj.) 6. Further, relying upon a judgment of Hon’ble Supreme Court of India in case of Sebastiao Luis Fernandes (Dead) through Lrs. & Ors. (supra), he submitted that in its second appellate jurisdiction, the High Court can interfere even with concurrent findings of fact if the same are based on no evidence or have been recorded ignoring material evidence whereas, the present case involves reversal of findings of fact by the learned Appellate Court. He, therefore, prayed that the civil second appeal be allowed, the judgment and decree dated 07.12.2021 be quashed and set aside and the judgment and decree dated 31.05.2018 be restored. 7. Heard. Considered. 8. The learned trial Court has dismissed the suit holding that the plaintiff was not in possession of the entire land relying upon his cross-examination as PW-1 wherein, he has stated that his possession was not over 204 Sq. Yards of land. This Court has gone through the cross-examination of Shri Kajod Mal Meena (PW1) and finds this finding to be perverse. Yards of land. This Court has gone through the cross-examination of Shri Kajod Mal Meena (PW1) and finds this finding to be perverse. He has admitted when suggested during cross-examination that he was not in possession of 204 Sq. Yards of land on that day. It was in consonance with the averments in the amended plaint wherein, it was specifically averred that despite interim order of learned Court restraining the defendants, they have encroached upon a part of his land during pendency of the suit. Therefore, it was natural for him to have admitted in his cross-examination that he was not in possession on that day of his entire 204 Sq. Yards of land allotted by the Gram Panchayat and the learned trial Court erred in misreading and misinterpreting his statement. The record reveals that the defendant No.2-Shri Birdhichand, despite stating in the written statement that no residential house of the plaintiff exists on the subject land, categorically admitted during his cross-examination as DW-1 that the plaintiff raised construction of the house in the years, 1988-89-90 and before that, he had kachcha house. Stating that he has complained to the Gram Panchayat against such construction, he admitted that he did not produce any evidence in this regard. Denying a suggestion in his cross-examination that the plaintiff raised construction of the rooms after obtaining patta, he stated that the rooms were already constructed before that. He has further admitted in his cross-examination that before obtaining patta, the plaintiff was already residing in the subject property raising construction of two rooms. The defendant No.1-Shi Shankar Lal Meena (DW-2) during his cross-examination admitted that after obtaining patta of the subject land from Gram Panchayat, the plaintiff was residing thereon raising construction of a house. He has further admitted that they wanted to dispossess the plaintiff from the land under his ownership. He has also admitted that the plaintiffs were residing on the subject property for last about 50 years. Defendant’s-witness, Bhairulal Meena (DW-3) has admitted during his cross-examination that for last about 50 years, Kajod Mal Meena was residing on the subject property. Their another witness Ram Narain (DW-4) has admitted that Kajod Mal Meena was residing for last about 15-16 years raising construction of a residential house. Defendant’s-witness, Bhairulal Meena (DW-3) has admitted during his cross-examination that for last about 50 years, Kajod Mal Meena was residing on the subject property. Their another witness Ram Narain (DW-4) has admitted that Kajod Mal Meena was residing for last about 15-16 years raising construction of a residential house. He has further admitted that his house was constructed on about 100 yards of land and equal area of land was lying vacant corroborating the case of the plaintiff that he has raised construction of the house on some part of the land allotted to him keeping the rest vacant. It is trite law that admission is the best evidence and in view of categorical admission by the defendants and their witnesses during their cross-examination that the plaintiff was in possession of the land and was residing thereon for last about 50 years, i.e., much prior to obtaining its patta from the Gram Panchayat, Bhawani and further, in view of candid admission by the defendant No.1-Shankar Lal Meena (DW2) that they were trying to dispossess the plaintiff from the land under his ownership, in the considered opinion of this Court, the learned Appellate Court did not err in allowing the appeal and decreeing the suit filed by the plaintiffs for permanent injunction. 9. This Court is in respectful agreement with the law laid down in the judgments relied upon by the learned counsel for the defendants; but, in view of the aforesaid findings, the same are of no help to him. 10. Resultantly, this civil second appeal is dismissed being devoid of any substantial question of law with cost throughout.