Order

19/03/2025

1. Heard the parties on whether any substantial question of law is involved in this second appeal or not.

2. This Second Appeal is against the judgment and decree dated 11.12.2017 passed by District Judge, Jodhpur District Original Civil Suit No.633/2011, whereby, the judgment and decree dated 16.04.2013 passed by Civil Judge (Junior Division), Jodhpur has been upheld.

3. The factual matrix of the case is that the plaintiff and defendant had purchased a plot from Jodhpur Adarsh Pragatisheel Grah Nirman Samiti, a residential colony in Vijay Nagar.

4. The plaintiff purchased plot no. 195 area 30 ft. X 50 ft. The defendant purchased plot no. 196 having area in the north was 27 ft. and in the south 40 ft.

5. The plaintiff brought the suit for injunction against the defendant to not to encroach upon the land of the plaintiff. During suit, an application was filed that encroachment was made on 4 ft. of the land of the plaintiff. Hence, recovery of possession was also sought for. The learned trial Judge dismissed the suit. The dismissal was challenged in appeal, which was also dismissed.

6. Contention of the learned counsel for the appellant is that Commissioner was appointed by the trial Court for measurement of the land and Commissioner found area of plot no. 195 as 26.1 ft. X 50 ft. Evidently, lessor land was there with the plaintiff, however, ignoring the material on the record, Courts below have dismissed the suit.

7. Contention of the learned counsel for the respondent is that the area of plot no. 196 of the defendant was also measured and no encroachment was found. In the circumstance, it cannot be completely overruled that some other neighbours might have committed encroachment. Plot No. 194 lying by the side of the land of the plaintiff was not measured by the Commissioner though construction on the said plot was made prior to the dispute between the parties.

Contention is that unless there was specific material that encroachment was made by the defendant only, no decree could have been passed against the defendant.

8. The questions of law asserted as substantial questions of law in this appeal are as follows:-

“(1) Whether document EX-1 Patta and EX-2 to 3 which have been proved with accordance to law as per section 91 of Evidence Act, oral evidence of its contents can be given more weithage?

(2) Whether the learned Courts below have not properly considered the effect of the document EX-1 patta and EX-2 to 3 more particularly when it has been found proved?

(3) Whether the learned Courts below have not properly considered effect of the document EX-2 “Site Plan” with regard to Size of Plaintiff Plot more particularly when it has been found proved?

(4) Whether the learned court below had failed to apperitiate the fact that documentary evidence of plaintiff cannot be discarded merely on report of local comissioner and oral evidence of defendant?

(5) Whether oral evidence of defendant can be given more weightage than documentary evidence of plaintiff which is already on record?

(6) Whether the learned Courts below have not properly considered the effect of the document EX-1 to 3 more particularly when it has not been found that the document EX-1 to 3 is admitted by defendant/respondent?

(7) Whether the learned court below misread the statement PW-1 plaintiff and discarded the evidence on the grounds, which are erroneous in law?

(8) Whether the judgment and decree challanged under appeal is vitiated on account of non-reading and misreading of material evidence?

(9) Whether the judgment and decree challanged under appeal is vitiated on account of non-reading and misreading of pleading of plaintiff?

(10) Whether the judgment and decree challanged under appeal is vitiated on account of non- consideration of relevant and material documentary evidence?

(11) Whether the judgment and decree under appeal is based on misconception of plaintiff’s suit and real question in controversy therein hence judgment and decree under appeal is deserves