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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Sudesh Bansal, J.
Radheshyam Son of Shri Kanhaiyalal and ors. - Appellants
Versus
Shri Keshar Dev (since deceased) and ors. – Respondents
S.B. Civil Second Appeal No. 104 of 1988
Decided On : 11-10-2022
LAND DISPUTE - PUBLIC WAY/CHOWK - ALLOTMENT OF LAND BY GRAM PANCHAYAT - PERVERSE FINDING OF FIRST APPELLATE COURT - RESTORATION OF TRIAL COURT JUDGMENT - SECTION 100 CPC.
Fact of the Case:
Plaintiffs filed a civil suit for permanent injunction against defendants, claiming that defendants were trying to raise construction encroaching upon the public way/chowk in front of a public dharmshala. The trial court dismissed the suit, finding that the land in question allotted to defendants was not part of the public way and that the width of the public way remained intact. On appeal, the first appellate court reversed the trial court's findings and decreed the suit, treating the land allotted to defendants as part of the public way and directing defendants not to raise any construction thereon.
Finding of the Court:
The High Court held that the first appellate court's findings were perverse and based on no evidence. The court noted that the trial court had carefully considered the evidence and found that the land in question was not part of the public way. The first appellate court, on the other hand, had ignored the trial court's findings and relied on inadmissible evidence to reach its own conclusion. The High Court also found that the first appellate court had erred in treating the land allotted to defendants as part of the public way, as this land was situated to the south of the public way and did not obstruct the movement of traffic.
Issues: 1. Whether the finding of the first appellate court that the land sold to appellants was a part of the public way/chowk of the village is perverse? 2. Whether the first appellate court erred in reversing the trial court's findings and decreeing the suit in favor of the plaintiffs?
Ratio Decidendi: The High Court held that the first appellate court's findings were perverse and based on no evidence. The court noted that the trial court had carefully considered the evidence and found that the land in question was not part of the public way. The first appellate court, on the other hand, had ignored the trial court's findings and relied on inadmissible evidence to reach its own conclusion. The High Court also found that the first appellate court had erred in treating the land allotted to defendants as part of the public way, as this land was situated to the south of the public way and did not obstruct the movement of traffic.
Final Decision: The High Court allowed the second appeal, set aside the impugned judgment and decree of the first appellate court, and restored the judgment and decree of the trial court dismissing the plaintiffs' suit.
JUDGMENT :
1. The instant second appeal under Section 100 of Code of Civil Procedure arises out of a Civil Suit for permanent injunction bearing No.39/1976 (198/1980) titled Keshar Dev and Ors. Vs. Radheshyam and Ors., which was dismissed by the Munsif and Judicial Magistrate, Dantaramgarh, District Sikar vide judgment and decree dated 21.12.1981, but on filing Civil First Appeal thereagainst bearing No.7/1982 (33/1985), before the Court of Additional District Judge, Sikar, the same has been allowed vide judgment and decree dated 13.05.1988 and whereunder while setting aside the judgment and decree dated 21.12.1981, the civil suit filed by respondents-plaintiffs has been decreed in following terms :-
2. The Coordinate Bench of this Court, vide Order dated 23.03.1993 framed following substantial question of law for consideration in the present second appeal :
3. In order to consider and decide the aforementioned substantial question of law, the seminal facts of the present case as culled out from record are required to be noticed as under:
3.1 Initially, a Civil Suit for permanent injunction was filed on 06.04.1976 by four persons (respondents No.1 to 4 herein) against seven defendants (appellants No.1 to 7 herein), stating inter alia that at Village Khatushyamji, there is a public Dharmshala for pilgrims to stay. In front of the dharmashala, there is a public way and chowk, which is about 55ft in width and thereafter, opposite side guaris and badas of Jhuntha Ram and Mali Ram are situated as also adjacent thereto, guaris of other persons are also situated and gates of guaris and badas open on the public way. It was stated that in between the public dharmshala and guaris & badas of Juntha Ram and Mali Ram as also of other persons, there is a public way from Khatu Ringas to Khatu Dantaramgarh, which is the main road of village. It was stated that defendants, in collusion with the Gram Panchayat, Khatushyamji are trying to raise illegal and unauthorized construction over the land of public way and chowk and if such constructions are allowed to be made, same would obstruct public transport and would narrow the public way. Therefore, plaintiffs jointly made a prayer for permanent injunction against defendants, to not obstruct over the land of public way and not to make any construction on any part of the public way.
3.2 After institution of the civil suit, two persons Jhuntha Ram and Mali Ram also joined as plaintiffs No.5 & 6 and Gram Panchayat, Khatushyamji was also added as defendant No.8 and accordingly, amended plaint was filed on 17.01.1977.
3.3 Thereafter, plaint was got amended by addition of Para No. 4¼d½ to the effect that the Gram Panchayat, Khatushyamji sold part of the public way in form of different plots to defendants No.1 to 7 in an improper, unauthorized and illegal manner and executed separate seven sale deeds/pattas in their favour. The Gram Panchayat, Khatushyamji, is bound to keep the public way unobstructed and it is not authorized to sell land of the public way, therefore, sale deeds or pattas executed in favour of defendants No.1 to 7 are void ab initio & ineffective and on the basis of such sale deeds/pattas, defendants No.1 to 7 did not acquire any rights over the land of public way.
Note: It may be worth
The court affirmed the Plaintiffs' easementary rights based on historical use and legal documentation, emphasizing the significance of such rights in property law.
Concurrent findings of fact by lower courts should not be disturbed in a second appeal unless a substantial question of law arises, which was not applicable in this case.
Concurrent findings of fact in a second appeal under Section 100 of the CPC cannot be interfered with unless found to be perverse; further, a co-owner cannot be restrained from raising construction o....
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