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2016 Supreme(Raj) 604

IN THE HIGH COURT OF RAJASTHAN
P.K. Lohra, J.
Banshi Lal - Appellant
Versus
Kalu Ram & Ors. - Respondents
Civil Second Appeal No. 289 of 2015
Decided On : 07-04-2016

Advocates:
Advocate Appeared:
For the Appellant : Sandeep Saruparia

Headnote:

Code of Civil Procedure, 1908 - Section 100 - Evidence Act - Section 114 - Suit for possession - Mandatory and prohibitory injunction - Appellant instituted a suit for possession, mandatory and prohibitory injunction against the respondents before the Civil Judge inter alia, on the ground that suit property was purchased by him from by registered sale-deed - Time of purchase of the suit property, there was kucha construction on it, which collapsed four years back from institution of the suit, It is also averred, appellant collected building materials at the site, which is still lying there. As regards, respondent-defendants, it is averred in the plaint that they are having no share in the suit property, but unauthorisedly they have roped some obstacles to prevent ingress and egress of the appellant on the suit property. Despite objection raised by the appellant-plaintiff, nothing was done by the respondents and that prompted the appellant to file civil suit for the aforementioned reliefs - Held, Jurisdiction under Section 100 CPC is to be exercised by the court only when there is a substantial question of law involved in the matter inasmuch as existence of substantial question of law is sine-qua-non for maintainability of second appeal - Remains no quarrel that word substantial as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradiction with-technical, of no substance or consequence, or academic merely - Court unable to find any substantial question of law involved in this appeal and the so-called substantial questions of law proposed by the appellant are also not satisfying the requirements highlighted here in above - Court not inclined to interfere with the impugned judgment of the learned lower appellate Court - Appeal is dismissed

JUDGMENT :

P.K. Lohra, J.

Unsuccessful before both the courts below, appellant-plaintiff has preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'CPC').

2. The facts, in brief giving rise to this appeal, are that appellant instituted a suit for possession, mandatory and prohibitory injunction against the respondents before the Civil Judge (Sr. Div.) Jaitaran (for short, 'learned trial Court'), inter alia, on the ground that suit property was purchased by him from Birdaram Chockidar by registered sale-deed dated 19th June, 1978. At the time of purchase of the suit property, there was kucha construction on it, which collapsed four years back from institution of the suit, i.e., somewhere in 1992. It is also averred that on 15th June, 1985, the appellant collected building materials at the site, which is still lying there. As regards, respondent-defendants, it is averred in the plaint that they are having no share in the suit property, but unauthorisedly they have roped some obstacles to prevent ingress and egress of the appellant on the suit property. Despite objection raised by the appellant-plaintiff, nothing was done by the respondents and that prompted the appellant to file civil suit for the aforementioned reliefs.

3. The suit is contested by the respondents. In their written statements, respondents specifically denied any right, title or interest of the appellant on the land in question and further disputed his possession. While referring to the alleged agreement to sale of 1973 by one Birdaram Chockidar, in favour of appellant, it is stated, in the written statement by the respondents, that the same is illegal and unauthorized having no bearing on the rights of the respondents. It is also averred that the said agreement to sale is null and void. As per version of the respondents, the suit property was owned by Laxman and remained in his possession, therefore, being his legal heirs, all the respondents have every right to enjoy the said property. On the positive assertion of the appellant that he is a bona fide purchaser, it is submitted, in the written statement, that his predecessor-in-title was having no right, title or interest on the suit property to transfer it to him. As regards so-called obstruction created by original defendant Laxman, in the written statement, it was pleaded that it was not an obstruction but rather an attempt made by respondent, Laxman, to protest his possession over the suit property long back, which the appellant is not entitled to remove.

4. With all these pleadings, a prayer was made for dismissal of the suit. The appellant submitted his rejoinder and reiterated the averments contained in the plaint.

5. The learned trial Court, on the strength of pleadings of rival parties, framed seven issues for determination. In support of his case, the appellant examined five witnesses and also produced two documents, which were exhibited. To counter the evidence of the appellant, the respondents examined six witnesses.

6. After discussing the entire evidence and materials available on record, the learned trial Court decided Issues No. 1 & 2 against the appellant and in favour of respondents. In its conclusion, the learned trial Court has recorded a definite finding that appellant has miserably failed to prove right, title or interest of his predecessor-in-title on the land in question. That apart, the learned trial Court also recorded a definite finding of fact that no cogent evidence is tendered by the appellant to prove possession of Birdaram on the land in question much less his own possession. Issues No. 3 to 6 were also decided by the learned trial Court against the appellant on the strength of findings and conclusions on Issue No. 7. Issue No. 7 was framed by the learned trial Court on the basis of pleading of the respondents, and therefore, in order to examine that issue threadbare, the learned trial Court made sincere endeavour to analyse the evidence tendere























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