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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Sudesh Bansal, J.
Nanga & Ors. – Appellants
Versus
Ramchandra & Ors. – Respondents
S.B. Civil Second Appeal No. 119 of 2017
Decided On : 04-07-2022
Public Chowk - Land Dispute - The court dismissed the appellants-plaintiffs' suit for permanent and mandatory injunction in relation to land alleged to be of public chowk and public way, as they could not prove by oral or documentary evidence that the suit property was a land of public chowk. The court found that the evidence fell short to prove the case, and the findings of fact did not give rise to any substantial question of law, leading to the dismissal of the second appeal.
Fact of the Case:
The appellants-plaintiffs filed a suit for permanent and mandatory injunction, alleging that the suit property was a public chowk and its part had been encroached upon by the private defendants. However, both courts found that the plaintiffs could not prove by evidence that the suit property was a land of public chowk, and the suit was dismissed on merits.
Finding of the Court:
The court found that the plaintiffs' evidence fell short to prove their case, and the findings of fact did not give rise to any substantial question of law. As a result, the second appeal was dismissed.
Issues: The main issue was whether the suit property was a public chowk and if the appellants-plaintiffs could prove their case through evidence.
Ratio Decidendi: The court's decision was based on the lack of evidence to prove the suit property as a public chowk, and the absence of any substantial question of law arising from the findings of fact.
Final Decision: The second appeal was found to be devoid of merits and was dismissed, with no order as to costs.
ORDER
1. Appellants-plaintiffs have filed this second appeal under Section 100 of the Code of Civil Procedure, assailing judgment and decree dated 15.12.2016 passed by District Judge, Bundi in appeal No.40/2011, affirming the judgment and decree dated 23.08.2011 passed by Civil Judge (Junior Division), Lakheri, Bundi in Civil Suit No.33/94 whereby appellants-plaintiffs' suit for permanent and mandatory injunction in relation to land alleged to be of public chowk and public way has been dismissed on merits.
2. Heard counsel for appellants and perused the record.
3. It appears from record that appellants-plaintiffs instituted a simpliciter suit for permanent injunction alleging inter alia that suit property described in para 1 of the plaint marked as ?.?.?.? in the map situated at Kasba Nayapura, Lakheri, District Bundi is a public chowk and its part marked ?.??.?.? has been encroached upon by respondents- private defendants. Hence, prayer was made to the following effect:-
4. On the basis of pleadings and evidence on record, both Court have recorded fact findings that plaintiffs could not prove by oral or documentary evidence that the suit property marked as ?.?.?.? is a land of public chowk. Plaintiffs have not asked for any relief of declaration to declare the suit property as public chowk. It has come on record that property marked as ?.????, is adjoining to defendants' house and the Nagar Palika, Lakheri has allotted that part of land treating as strip of land, to defendants after receiving an amount of Rs.16,473.70/-. It has come on record that this part is not obstructing the common way and same is land of Nagar Palika, Lakheri. Plaintiff and his witnesses have also admitted in their statements that the land in question belongs to Nagar Palika.
5. In that view of such facts, both Courts observed that plaintiffs simpliciter suit for permanent injunction is not liable to be succeed and accordingly suit has been dismissed on merits.
6. Counsel for appellants vehemently argued that receipt of Rs.16,473.70/- (Exhibit-A2) nowhere goes to show that a strip of land has been allotted by Nagar Palika, Bundi to private defendants. Hence, two Courts below have committed perversity in recording findings that the land in question has been allotted as strip of land within the provisions of Rajasthan Municipalities (Disposal of Urban Land) Rule, 1974.
7. From the record, it stand clear that there is no documentary evidence to show that the suit property is a public chowk. No documents either of registration of Nagar Palika or other proof have been placed on record by plaintiffs in support of their case to prove the suit land to be a part of public chowk. Plaintiffs have not filed any suit for declaration, seeking declaration of suit property as part of public chowk by virtue of its use. Thus, it a case where plaintiffs' evidence fall short to prove his case and argument raised by counsel for appellant is not sustainable in that backdrop of circumstances. The fact findings recorded by both Courts below that suit land is not prove to be a part of public chowk or public way is passed on appreciation of evidence on record which has not been pointed out to be suffered from any perversity or misreading/non-reading of evidence.
8. The findings recorded by two Courts below are findings of fact and do not give rise to formulation of any substantial question of law. In absence of involvement of any substantial question of law, the second appeal cannot be entertained for exercising jurisdiction under Section 100 CPC. The substantial questions of law as proposed by appellant-plaintiff are essentially questions of fact, which requires reappreciation of evidence. Reappreciation of evidence is not permissible within the scope of Section 100 of CPC, unless and until there is some illegality or perversity in findings. None of the question of law, falls within purview of substantial question of law. In order to exercise the scope of Section 100 of CPC, invo
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