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2023 DIGILAW 279 (RAJ)

Ganeshnarayan Saini v. Jaipur Municipal Corporation

2023-01-24

CHANDRA KUMAR SONGARA

body2023
ORDER 1. Instant second appeal has been preferred on behalf of the appellants-plaintiffs under Section 100 of the Civil Procedure Code, 1908 challenging the judgment & decree dated 04.03.2020 passed by the Court of Additional District Judge, No.4, Jaipur Metropolitan, Jaipur (hereinafter referred to as 'the Appellate Court') in Civil Appeal No.23/2019 titled as Ganeshnarayan Saini & Others Vs. Nagar Nigam, Jaipur, whereby the Appellate Court had dismissed the said appeal & affirmed the judgment & decree dated 17.09.2019 passed by the Court of Additional Senior Civil Judge cum Additional Chief Metropolitan Magistrate No.5, Jaipur Metropolitan, Jaipur, (hereinafter referred to as 'the trial Court') in Civil Suit No.29/2005 titled as Ganeshnarayan Saini & Others Vs. Nagar Nigam, Jaipur. 2. The appellants-plaintiffs had instituted a civil suit against the respondent-defendant seeking permanent injunction in respect of the disputed land alleging therein that their ancestral land was situated nearby 22 Godown, Jaipur and their ancestors were in possession of the land for more than 100 years and an electric connection was also obtained in year 1967 and their predecessors, namely Gulab Chand @ Gulla deposited a hasil on 16.06.1941 to the Rajasthan Sawai Jaipur and registration under the Shops & Establishment Act was also issued by the authority concerned, and the Municipality, Jaipur had also issued licence. Thereafter, license was issued in the name of 'Siyaram Bhojnalaya' in year, 1992. The appellants-plaintiffs are in possession of their ancestral property, which is neither part of the road nor part of any footpath nor belongs to the Municipal Corporation, inspite thereof, the Officers of the Municipal Corporation threatened the appellants for dispossession. 3. The said suit was opposed by the respondent-defendant by submitting a written-statement, denying the allegations and further contending inter-alia that the plaintiffs were not in possession of the disputed land for 100 years and they started running business only some time back on the illegally encroached public footpath measuring around 57x12 by the name of 'Siyaram Bhojnalya' for which the respondent has sent a notice to the plaintiffs asking him to produce documents regarding ownership and title but the plaintiffs did not provide any document. 4. The appellants-plaintiffs have filed rejoinder. 5. The trial Court, after appreciating the evidence on record, dismissed the suit vide its judgment & decree dated 17.09.2019 against which the appellants-plaintiffs had preferred an appeal before the learned Appellate Court. 4. The appellants-plaintiffs have filed rejoinder. 5. The trial Court, after appreciating the evidence on record, dismissed the suit vide its judgment & decree dated 17.09.2019 against which the appellants-plaintiffs had preferred an appeal before the learned Appellate Court. The said appeal came to be dismissed vide its judgment and decree dated 04.03.2020. Hence, this appeal. 6. During the course of arguments, learned counsel appearing for the appellants-plaintiffs, has placed reliance upon the following judgments :- (i) Krishna Ram Mahale Vs. Shobha Venkat Rao, AIR 1989 SC 2097 , (ii) NOIDA Vs. Desh Raj, (2010) 15 SCC 451 , (iii) Ramdas Bansal Vs. Kharag Singh Baid, (2012) 2 SCC 548 , (iv) State of Gujarat Vs. Allauddin Babumiya Shaikh, 1991 Supp.(1) SCC 146, (v) S. Noordeen Vs. S. Thiru Venkita Reddiar, (1996) 3 SCC 289 , (vi) Anil Singh and another Vs. Naumi Yadav & Others, 2018 (1) CCC 761 (Allahabad) and (vii) Municipal Committee, Ratia District Fatehabad Vs. Gurmeet Singh, 2017 (2) CCC 257 (P&H) respectively. 7. After having heard the learned counsel appearing for the appellants-plaintiffs and perused the judgments cited herein-above, it appears that both the Courts below have come to the conclusion that the documents produced by the plaintiffs with regard to disputed land do not contain measurement of the land nor the boundaries nor does it contain any specific description of the property. Any of the documents produced by the plaintiffs do not contain total measurement & boundaries of the property, which was required to properly dispose of the dispute in the matter because, in the reply, the defence taken by the Nagar Nigam was that the plaintiffs were running business on the illegally encroached public footpath of a fixed measurement by the name of 'Siyaram Bhojnalya'. The plaintiffs in their plaint have made it clear with regard to ownership/title of the disputed land that they have not produced any documents because father of plaintiff No.1 - Gulab Chand did not provide him any such documents with regard to the ownership/title of the property. The measurement & boundaries of the disputed land are not clear from the evidence produced by the plaintiffs, who are in possession of said property, nor does it make clear that it is the same land, which is described in the plaint. 8. The measurement & boundaries of the disputed land are not clear from the evidence produced by the plaintiffs, who are in possession of said property, nor does it make clear that it is the same land, which is described in the plaint. 8. In the reply, the Nagar Nigam has stated that they had informed the plaintiffs through notice that the plaintiffs should provide the documents regarding ownership & title of the land on which the plaintiffs are running their 'Siyaram Bhojnalya'. The plaintiffs have also stated in their plaint that the respondent had asked them to produce the documents of ownership/title of the disputed land vide its notice dated 25.02.2005. There is no evidence on record to show that the plaintiffs have replied to the notice sent by the Nagar Nigam. The plaintiff, in his cross-examination, has clearly accepted that he neither replied to the notice sent by the Nagar Nigam nor produced any documents related to ownership/title of the property before Nagar Nigam. The Nagar Nigam has given proper and reasonable opportunity of hearing to the plaintiff by sending notice to him. In this case, it cannot be said that the Nagar Nigam has acted against the plaintiffs without giving them notice of hearing or without any established procedure. 9. After recording the findings, both the Courts below have decided the sole Issue No.1 ('Whether the plaintiffs are in possession of the disputed land by virtue of being the owner, whom the respondent wants to illegally dispossess and wants to demolish the said property, of which they do not have any right, the relief is for permanent injunction?) against the plaintiffs. Therefore, the plaintiffs are not entitled to get any relief. There being concurrent findings of the facts of both the Courts below, this Court is not inclined to interfere with the same. Furthermore, the judgments (supra) relied upon by the learned counsel appearing for the appellants-plaintiffs, fail to advance the case of the appellants-plaintiffs. 10. In absence of any substantial question of law, the second appeal is not liable to be entertained. The substantial questions of law, as proposed by the appellants-plaintiffs in appeal memo, are essentially questions of fact, which require re-appreciation of evidence. Reappreciation of evidence is not permissible within the scope of Section 100 of C.P.C. until and unless there is some illegality or perversity in the findings of impugned judgment. The substantial questions of law, as proposed by the appellants-plaintiffs in appeal memo, are essentially questions of fact, which require re-appreciation of evidence. Reappreciation of evidence is not permissible within the scope of Section 100 of C.P.C. until and unless there is some illegality or perversity in the findings of impugned judgment. None of the issues framed fall within the purview of substantial question of law. In order to exercise the scope of Section 100 of C.P.C., involvement/formulation of substantial question of law is sine-qua-non. Otherwise also, it is a case of concurrent findings of the facts, even if erroneous, cannot be disturbed in exercise of powers under Section 100 of C.P.C. 11. Since no substantial question of law is involved in the present second appeal, thus, the same is liable to be dismissed. 12. Accordingly, the second appeal is dismissed. 13. Pending application, if any, also stands disposed of.