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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
Kalyan Singh & Others Vs. Ghanshyam Vaishnav
(S.B. Civil Second Appeal No.422/2007)
DATE OF JUDGMENT : July 06, 2009.
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
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Mr. Sajjan Singh for the appellants.
BY THE COURT :
In this second appeal, the appellant-defendants
are challenging the judgment and decree dated
27.08.2007 passed by Addl. District Judge, Sojat City in
Civil Appeal No.13/2006, whereby, the learned
appellate Court affirmed the judgment and decree dated
24.07.2006 passed by the Civil Judge (Jr. Dn.), Sojat in
Civil Original Suit No.30/2001.
According to facts of the case, suit for mandatory
and permanent injunction was filed by respondent-
plaintiff Ghanshyam Vaishnav. In the suit, it was
specifically prayed that appellant-defendants have made
encroachment upon the public way which is in existence
since last 50 years in village Dornadi and respondent-
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plaintiff as also all the villagers are having easementary
right of public way, therefore, it was prayed that
encroachment so made by the appellant-defendants
may be removed and they may be restrained from
making any encroachment upon the public way. The
learned trial Court, after framing 9 issues and recording
oral evidence of P.W.-1 Ghanshyam, P.W.-2 Sagar Devi
and P.W.-3 Mangu Singh and taking on record 10
documents, so also, recording evidence of four
witnesses on the side of the defence, decreed the suit in
favour of the respondent-plaintiff. The said judgment
and decree dated 24.07.2006 was challenged by the
defendants by way of filing appeal before the Addl.
District Judge, Sojat City. Learned appellate Court
affirmed the adjudication made by the trial Court and
dismissed the appeal filed by the present appellants.
Learned counsel for the appellants vehemently
argued that the finding arrived at by both the Courts
below is perverse and , so also, ignoring the universal
truth that in the villages and old cities of India there are
chabutari at both sides of the gate of a house and that
is rightly constructed by them, therefore, the decree
passed by the trial Court for removal of the said
chabutari is illegal. Further, it is argued that matter of
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regularization was pending before the Panchayat,
therefore, the learned trial Court has committed error
while misreading the material evidence and relied upon
inadmissible evidence, therefore, the finding arrived at
by the trial Court as well as appellate Court is illegal and
contrary to law. It is also argued by learned counsel
for the appellants that alleged finding against the
appellants for encroachment upon the public way is also
illegal and without any evidence on record. The
learned trial Court has failed to consider that the
plaintiff has not proved the case in his favour,
therefore, the Courts below have committed manifest
perversity and, accordingly, judgment and decree
passed by both the Court below deserve to be set aside.
It is lastly argued by learned counsel for the appellant
that the learned Courts below have committed material
illegality while deciding issues No.4, 5 and 6 jointly in
favour of the respondent-plaintiff.
I have considered the arguments advanced by
learned counsel for the appellants and, so also, perused
the judgments of both the Courts below.
Admittedly, there is no title in favour of the
appellant-defendants to show that the land in question
where the alleged encroachment has been made by
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them is belonging to them nor they have proved before
the Court that they are in possession of the said land
for so many years whereas respondent-plaintiff proved
by cogent evidence that the land where the appellants
have made encroachment and constructed the chabutari
is public way. The finding of fact arrived at by both the
Courts below cannot be interfered with while exercising
jurisdiction under Section 100, C.P.C. in this second
appeal.
Further, upon perusal of both the judgments
under challenge, no substantial question of law emerges
for consideration. More so, it is obvious from the fact
that admittedly there is no title or any right accrued to
the appellant-defendants to retain possession of the
land of public way. It is also required to be observed
that the scope of second appeal is very limited. The
Court can interfere if any substantial question of law is
involved in the matter; but, here in this case, no
question of law is borne out warranting interference.
In this view of the matter, there is no force in this
second appeal. Hence, this second appeal is dismissed.
(Gopal Krishan Vyas) J.
Ojha, a.
