Judicature For Rajasthan High Court · 2012

Judgment

:

04.12.2012 S.B. Civil Second Appeal under Section 100 CPC against the judgment and decree dated 10.05.2011 passed by learned Addl. District Judge No.2 Jodhpur in Civil Appeal No.19/2010 whereby he affirmed the judgment and decree dated 14.05.2010 passed by the learned Additional Civil Judge (Jr. Div.) No.5 Jodhpur in Civil Original Suit No.75/2004 whereby she dismissed the suit HON'BLE MR. JUSTICE R.S. CHAUHAN Mr. Dilip Mulchandani for the appellant. The appellant, Musmat Saida, is aggrieved by the judgment and decree dated 14.05.2010 passed by the learned Additional Civil Magistrate No.5 Jodhpur whereby the learned Magistrate has dismissed the suit filed by her for possession. She is equally aggrieved by the judgment and decree dated

10.05.2011 passed by the learned Additional District Judge

No.2, Jodhpur, whereby the learned Judge has confirmed the judgment and decree dated 14.05.2010. Briefly the facts of the case are that the appellant- plaintiff filed a suit for possession against the Jodhpur Development Authority ('JDA', for short), inter alia, on the ground that by registered sale-deed dated 28.10.1972 she had 2 bought plot No.53 situated in Khasra No.799/2 from one Gangaram for a consideration of Rs.400/-. She further claimed that ever since then, she has been in possession of the said plot. However, subsequently Gangaram filed a suit for injunction against the JDA before the Assistant Collector, Jodhpur, where he had sought the relief that the JDA be prevented from acquiring his land. In the said suit, the JDA had taken the position that it had never acquiring the land and had no intention for acquiring the land of Gangaram. She further claimed that JDA subsequently allotted plot No.35 to one Harjeet Singh and another plot to Rafiq Dhobi. Due to these allotments, the size of her plot has been reduced to 7½' X 40' as both the plots of Harjeet Singh and plot of Rafiq have encroached upon her plot. The JDA, in turn, submitted its written statement. The JDA claimed that once the land was surrendered by Gangaram, the JDA was within its power to allot the said plot to Harjeet and to Rafiq Dhobi. It further contended that the civil suit was bared by limitation. On the basis of pleadings of the parties, the learned trial court framed six issues including the issue of relief. In order to prove its case, the appellant-plaintiff examined three witnesses and submitted four documents. Since sufficient time was given to the respondent-defendant to produce its evidence and since it failed to do so, the right to produce the evidence was closed by order dated 02.07.2007 and ex-parte 3 proceedings were conducted. After appreciating the evidence, by judgment and decree dated 14.05.2010, the learned trial court dismissed the suit. Since the appellant-plaintiff was aggrieved by the judgment and decree dated 14.05.2010, she filed an appeal before the First Appellate Court. However, by judgment and decree dated 10.05.2011, the learned Judge dismissed the appeal. Hence, the second appeal before this Court. Mr. Dilip Mulchandani, the learned counsel for the appellant, has vehemently raised the following contentions before this Court : firstly, the learned trial Court had erred in concluding that since the patta had certain over-writings, therefore, genuineness of the patta was suspect. This finding of the learned trial Court was rightly set aside by the learned Judge. However, the learned Judge has erred in concluding that the appellant-plaintiff had failed to establish her case with regard to the encroachment made on her plot by Harjeet Singh and by Rafiq Dhobi. According to the learned counsel, the question was not about the encroachment. In fact, it was about the power of the JDA, to allot the said plot to Harjeet and to Rafiq. Secondly, both the courts below have erred in concluding that the suit was hit by limitation. In their testimonies, both Saida (P.W.1) and Idu Khan (P.W.2) had clearly stated that ten years prior to the date of testimony, both Harjeet Singh and Rafiq Dhobi had encroached upon the plot. But both the courts below have interpreted their testimonies as meaning that both 4 Harjeet and Rafiq had encroached upon the plot ten years prior to the filing of the suit. Therefore, both the courts below have erred in concluding that the suit is hit by limitation. Heard the learned counsel and perused the impugned judgment and examined the record. It is, indeed, trite to state that the appellant- plaintiff is legally bound to establish her case by preponderance of evidence. However, according to learned Judge, she has failed to do so. The learned Judge was justified in concluding that the sale-deed dated 07.09.1992 was genuine one. However, according to the learned Judge, the appellant-plaintiff did not produce any evidence, oral or documentary, to establish the extent of encroachment made by Harjeet Singh and Rafiq Dhobi upon her plot. In fact, she failed to establish the fact that her plot is surrounded by the plots allotted to Harjeet Singh and to Rafiq Dhobi. For, the plot map submitted by her does not reveal that the adjacent plots belong to Harjeet Singh and to Rafiq Dhobi. Therefore, the learned Judge was certainly justified in concluding that the appellant-plaintiff has failed to establish her case with regard to the encroachment made by Harjeet and by Rafiq Dhobi. Since the plaintiff has failed to establish her case by cogent evidence, both the courts below were justified in dismissing her suit. The second contention raised by the learned counsel is highly misplaced. A bare perusal of the plaint clearly reveals that the appellant-plaintiff has not given any date with regard 5 to the alleged encroachment made by Harjeet Singh and Rafiq Dhobi. This is a fact which should have been mentioned specifically by her. In her cross-examination, Saida (P.W.1) admits the fact that Harjeet Singh had constructed his house ten years ago. Similarly, Mohd. Hussain (P.W.3) claims that Rafiq is living on the plot since 1980. The suit was filed in the year 1999. Thus, obviously it is barred by limitation. Therefore, the learned courts below have not committed any illegality in dismissing the suit on the point of limitation. A bare perusal of both the impugned judgments clearly reveal that the entire case is based on the facts established by the parties. No substantial question of law arises in the present appeal. According to the Hon'ble Supreme Court, after the amendment made in Section 100 C.P.C. the High Court would not be justified in interfering with concurrent finding of facts. In the case of Gurdev Kaur and Ors. V. Kaki and Ors. [(2007) 1 SCC 546], the Apex Court interpreted Section 100 CPC after it was amended in 1976. The Hon'ble Supreme Court held as under: “Now, after the 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those 6 questions of law. The language used in the amended section specifically incorporates the words “ substantial question of law” which is indicative of the legislative intention. The legislative intention is very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, is: The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii)The substantial question of law to precisely state such question; (iii)A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv)Another part of the section is that the appeal shall be heard only on that question. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 CPC”. This position has been followed constantly both by this Court and by the Apex Court. This second appeal is bereft of any substantial question of law. Therefore, it is not maintainable. Therefore, this second appeal is devoid of any merit; it is, hereby, dismissed. A.Asopa/- (R.S. CHAUHAN) J.