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HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
MR. JUSTICE BIRENDRA KUMAR, J
MOHAMMED SAKIR CHHIPA – Appellant
Versus
SMT. RAFIKA BANO – Respondent
Order :
1. Heard the parties.
2. By the judgment and decree dated 29.3.2023 passed by Learned Additional District Judge, Jodhpur in Civil First Appeal No. 63/2015 (CIS No. 127/2014), the Appellate Court has reversed the findings of the trial Court’s judgment.
3. The plaintiff/appellant herein had brought the Original Civil Suit No.356/2011 (155/2008) for a decree of injunction against the respondents to not to make any construction in the 10 feet lane or if any construction is there, to remove the encroachment. The suit was decreed by the learned trial court, however, the first appellate court has reversed the finding of the trial court and held that construction on 5 feet out of 10 feet of the lane was already there at the time of purchase of the suit property by the plaintiff. However, the appellate court directed that the defendants/ respondents shall not cover the construction anyway to avoid inconvenience to the plaintiff to get light and air and the defendants shall maintain the upper side of construction open to sky.
4. While reversing the finding of the trial court, the appellate court noticed that the Commissioner report vide Ex.5 reveals that structure on the 5 feet out of 10
The appellate court's findings were upheld, affirming its jurisdiction and the validity of its decision despite the trial court's earlier ruling.
The first appellate court has the jurisdiction to re-appreciate evidence and record its own findings of fact by reversing the findings of the trial court if found to be perverse.
Transfer of property rights during ongoing litigation are subject to the doctrine of lis pendens, affecting claims of ownership and right to injunction.
The first appellate court has the jurisdiction to modify the judgment and findings of the trial court if they are contrary to the settled proposition of law and the findings are based on due apprecia....
The central legal point established is the necessity of a clear and categorical finding on the construction site and the existence of the disputed sites before reaching a final decision.
The High Court affirmed that findings of fact by lower courts cannot be interfered with unless they are manifestly erroneous or based on inadmissible evidence under Section 100 of CPC.
The importance of evidence in proving claims and the limited scope of interference in second appeals under Section 100 CPC.
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