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HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Second Appeal No. 10/2018

Mohakam Singh S/o Balwant Singh, aged about 77 years, R/o

Nagla Bahua, Tehsil Nadbai, District Bahratpur

----Appellant-Defendent

Versus

Nihal Singh S/o Balwant Singh, aged about 73 years, R/o Nagla

Bahuwa, Tehsil Nadbai, District Baharatpur.

----Respondent-Plaintiff

For Appellant(s)

:

Mr. Rajendra Prasad Sharma

For Respondent(s)

:

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment / Order

14/08/2023

This civil second appeal has been preferred against the

judgment and decree dated 29.11.2017 passed by the learned

Additional District Judge No.4, Bharatpur (hereinafter referred to

as “the learned appellate Court”) in Civil Regular Appeal

No.29/2017 (CIS No.693/2014) whereby, while dismissing the

appeal preferred by the appellant/defendant (for brevity “the

defendant”), the judgment dated 20.03.2010 passed by the

learned Civil Judge (Junior Division), Nadbai, District Bharatpur

(for short “the learned trial Court”) decreeing the Civil Original

Suit No.19/2007 filed by the respondent/plaintiff (for brevity “the

plaintiff”) for mandatory and permanent injunction, has been

affirmed.

The relevant facts in brief are that the plaintiff filed a suit for

mandatory and permanent injunction against the defendant

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stating therein that he is under ownership and possession of a

residential house situated in village Nagla Bahua Tehsil Nadbai, a

part of his and defendant’s ancestral property. It was averred that

behind their residential houses, there is a Gali of four and a half

feet width through which he has drainage to the public way from

his house. Alleging that the defendant has encroached upon a part

of the subject Gali obstructing passage of drain water, the decree

as aforesaid was prayed for.

The defendant in his written statement, denying the

averments made in the plaint, submitted that the subject Gali was

under his exclusive ownership & possession and the plaintiff has

no concern or right over it. Dismissal of the suit, therefore, was

prayed for.

On the basis of pleadings of the parties, the learned trial

Court framed five issues including relief. After recording evidence

of the respective parties, the learned trial Court decreed the suit

vide judgment dated 20.03.2010. The civil first appeal preferred

thereagainst by the defendant has been dismissed by the learned

appellate Court vide judgment and decree dated 29.11.2017.

Assailing the impugned judgment and decree, the learned

counsel for the defendant submits that from the Commissioner

report, it was evident that he had ownership over the subject Gali

and in view thereof, the learned Courts erred in decreeing the suit

filed by the plaintiff. He, therefore, prays that the civil second

appeal be allowed, the judgment and decree dated 29.11.2017 be

quashed and set aside and the civil suit filed by the plaintiff be

dismissed.

Heard. Considered.

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While decreeing the suit, the learned trial Court has held that

from the ocular and documentary evidence led by the plaintiff;

such as, order of the Gram Panchayat Karhi (Exhibit P-2), the

Commissioner Report (Exhibit P-3) and the site plan prepared by

the Commissioner (Exhibit P-4), it was apparent that the drain

pipes from the plaintiff’s house have opening towards the subject

Gali. It was further observed that drain pipes from the defendant’s

house also have their opening towards the subject Gali. It was

held that from the Exhibit P-2, it was also established that the

defendant has obstructed the subject Gali by raising illegal

construction of a wall which is liable to be removed. These findings

have been upheld by the learned appellate Court vide judgment

dated 29.11.2017 after re-appreciating the evidence on record. It

was further held that the learned trial C