At, High Court of Rajasthan
By, THE HONOURABLE MR. JUSTICE KAILASH CHANDRA JOSHI
For the Appellant: Manoj Bhandari with Sushil Bishnoi, Advocate. For the Respondents: --------
Kailash Chandra Joshi, J.
1. This second appeal has been filed by appellant Rama being aggrieved by the impugned judgment dated 16.03.2009 passed by the Additional District and Sessions Judge, Nathdwara in Civil Appeal No. 22/2008, by which the first appellate court dismissed the appeal of the present appellant-plaintiff and affirmed the judgment and decree passed by the learned Civil Judge (Senior Division), Nathdwara, District Rajsamand in Civil Suit No. 87/2008, whereby the learned trial court dismissed the suit of the plaintiff-appellant Rama.
2. The necessary facts giving rise to this second appeal are that the appellant-plaintiff filed a suit against the respondent-defendants for permanent injunction praying for restraining them from dispossessing him from the suit property Page 1 of 5S.B. Civil Second Appeal No. 10/2010 on the ground that the plaintiff is in possession of the suit property for last 70-75 years and he pleaded that the Gram Panchayat is intending to dispossess him without due process of law.
3. The defendant No.2 filed written statement before the learned trial court whereas the defendant No.1 and 3 did not file any written statement. The defendant No.2 in his written statement denied the conents of the plaint.
4. On the basis of the pleading of the parties, three issues were framed by the learned trial court. The first issue was regarding the possession and ownership of the plaintiff on the suit property. The second issue was regarding the fact that whether in the absence of any legal notice, the suit is not maintainable. These issues were framed as per the objections of the defendant No.2.
5. After hearing both the parties and appreciating the evidence, the learned trial court came to the conclusion that the appellant-plaintiff has no ownership or possession over the suit property for last 70-75 years and accordingly in the absence of the evidence, the learned trial court dismissed the suit of the plaintiff.
6. Being aggrieved by the dismissal of the suit, the plaintiff-appellant filed first appeal. The learned first appellate court vide the impugned judgment dated 16.03.2009 dismissed Page 2 of 5S.B. Civil Second Appeal No. 10/2010 the appeal and affirmed and the judgment and decree passed by the learned trial court.
7. The learned counsel for the appellant contended that the learned trial court as well as the learned first appellate court erred in appreciating the evidence and on the basis of minor contradictions regarding the period for which the appellant was in possession of the suit property, the suit has been dismissed and which has been affirmed by the learned first appellate court.
8. The learned counsel for the appellant contended that the learned trial court held that no documentary evidence regarding the electricity connection or water connection or any other document regarding the old possession has been filed by the appellant-plaintiff. He submits that now he has filed an application under Order 41 Rule 27 CPC while filing the copy of notice issued by Sarpanch, Gram Panchayat Negadia, Panchayat Samiti Khamnor, District Rajsamand dated 05.07.2006, which was issued in the name of Suklal S/o Rama Dang.
9. I have heard the learned counsel for the appellant on the application under Order 41 Rule 27 of the CPC. The application is supported by the affidavit of appellant Rama. The copy of notice filed with the application is in the name of Suklal S/o Rama Dangi. The plaintiff in his plaint has categorically pleaded that the plaintiff himself is in possession of the suit property, whereas notice has been served upon Suklal. Page 3 of 5S.B. Civil Second Appeal No. 10/2010
10. The contention of the learned counsel for the appellant is that the suit property is in possession of the joint family, whereas no such pleadings are in the plaint, therefore, the application under Order 41 Rule 27 does not carry any force because the document submitted alongwith the application is not at all relevant to decide the present controversy.
11. I have also considered the other contentions raised by the learned counsel for the appellant. The learned trial court while deciding the issue No.1 recorded the finding that the pleadings in the suit were regarding old possession of 70-75 years, whereas the plaintiff in his examination-in-chief admitted his possession for 50-55 years. Further the learned trial court considered the aspect that no documentary evidence like the documents of electricity connection or water connection or notice issued by any Revenue authority were produced in evidence by the appellant-plaintiff and looking to the variance in the pleadings and the evidence, the learned trial court decided the issue No. 1 against the appellant-plaintiff. The same has been affirmed by the learned First Appellate Court and I see no illegality or irregularity in the finding recorded by the learned trial court or the learned first appellate court. The issue No.2 is regarding the mandatory notice to be issued under Section 109 of the Rajasthan Gram Panchayat Act, 1994. This issue has been decided by the learned trial court in favour of the plaintiff. Page 4 of 5S.B. Civil Second Appeal No. 10/2010
12. I have perused the substantial questions of law proposed in the memo of appeal. So far as the substantial questions of law proposed by the learned counsel for the appellant are concerned, the quest
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ion of old possession of suit property is purely a question of fact and the learned trial court and the first appellate court did not err in recording the finding against the appellant-plaintiff, therefore, no substantial question of law is involved in this appeal and the same deserves to be dismissed. 13. Resultantly, this second appeal is dismissed at the admission stage as no substantial question of law is involved in it within the meaning of Section 100 of the CPC. Since the appeal itself has been dismissed, the stay application also stands disposed of. Second appeal dismissed.