Jaipur v. Gopal S/o Chanda Lal Mali, Arjun Nagar, South Jaipur

Rampatap Choudhary S/o Shri Khemaram, 96, Arjun Nagar South Jaipur

7. Baluram Choudhary, 22, Arjun Nagar South Jaipur Lal Chand Sindhi S/o Hakumar Sindhi, 30, Arjun Nagar South Jaipur

8. Daulat Ram Sharma S/o Radha Kishan, 86, Arjun Nagar South Jaipur

9. Ummadi Lala Meena S/o Jasiram, 68, Arjun Nagar South Jaipur

10. Kalyan Sahay Meena S/o Suwalal, 20, Arjun Nagr South Jaipur ----Appellants Versus

5. Gopal S/o Chanda Lal Mali, Arjun Nagar, South Jaipur Ladduram S/o Chanda Lal Mali, Arjun Nagar, South Jaipur Narayan S/o Chanda Lal Mali, Arjun Nagar, South Jaipur Ramdev S/o Shri Ram Lal Mali, 126, Gopalpura, Jaipur Subhash Sindhi Cooperative Society Ltd. Through Its President, A-1, Jai Ambey Nagar, Tonk Road Jaipur ----Respondents For Appellant(s) : Mr. Ganesh Joshi, Adv. For Respondent(s) : None Present HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment Date of Judgment 26/05/2025 [2025:RJ-JP:21683] (2 of 6) [CSA-431/1998] This second appeal has been filed by the appellants- defendants (for short ‘the defendants’) under Section 100 CPC against the judgment and decree dated 01.06.1998 passed by Additional District and Sessions Judge No.5, Jaipur City, Jaipur (for short ‘the appellate court’) in civil regular appeal No.26/1997, whereby the appellate court allowed the appeal filed by the respondents-plaintiffs (for short ‘the plaintiffs) and set aside the judgment and decree dated 05.03.1997 passed by the Civil Judge and Judicial Magistrate, First Class, Jaipur City (West), Jaipur (for short ‘the trial court’) in civil suit No.874/1993, by which the trial court dismissed the plaintiffs’ suit. Brief facts of the case are that the respondent Nos.1 to 4- plaintiffs (for short ‘the plaintiffs’) filed a civil suit for recovery of compensation and possession of the property against the defendants, in which they stated that they were resident of Gopal Pura and they had sold some part of the property to respondent No.5-defendant-Subhash Sindhi Cooperative Society (for short ‘the Society’) as mentioned in Para-2 of the plaint through an agreement to sell, in which a condition was mentioned that well will not be included in the sold property and the plaintiffs would continue to supply water to the members of the Society and intern members of the Society will continue to pay the water charges. The respondent No.5-Defendant-Cooperative Society had developed the said land and gave the name of the said land as Arjun Nagar (South) and allotted the plots to their members, were defendant Nos.1 to 11. The water connection were not given to the members of the Society. The plaintiffs received Rs.20/- as water charges from each member on account of their membership [2025:RJ-JP:21683] (3 of 6) [CSA-431/1998] of the Society. The number of members were increased and became 47. So, plaintiffs received Rs.940/- out of which Rs.500/- was used for maintenance and Rs.440/- was the income of the plaintiffs from water supply. The defendants had encroached on the well and pumpset. So, income of the plaintiffs was affected. The plaintiffs had given notice under Section 143 of the State Cooperative Act of Assistant Registrar. So, suit filed by the plaintiffs be decreed. The respondents-defendants (for short ‘the defendants) filed the written statement and submitted that the well was situated in Plot No.107 and the said plot was allotted to Gangaram and plaintiffs had not to do anything with the same. So, suit filed by the plaintiffs be dismissed. On the basis of pleadings of parties, the trial Court framed the following issues:- 1- D;k fooknxzLr dqvka rFkk mlds vkl ikl dh Hkwfe oknh dh fefYd;r gS\ 2- D;k oknh izfroknhx.k rFkk vtqZu uxj lkmFk] ds vU; IyksV/kkfj;ksa dks fooknxzLr dq,a ls ikuh nsrk Fkk rFkk mldk :i;k olwy djrk Fkk\ 3- D;k oknh dh fooknxzLr laifRr ij izfroknhx.k us xSj&dkuwuh :i ls dCtk ugha fd;k laifRr xaxkjke iq= yNekjke dh Fkh\ 4- D;k oknh dks izfroknhx.k ls gjtkuk olwy djus dk vf/kdkj gS] vxj gS] rks fdl nj ls\ 5- vuqrks"k\ To prove his case, plaintiffs got examined as PW-1-Ramdev and as PW2-Ladduram. To prove their case, defendants got examined Lal Singh Yadav as DW-1, Daulatram Sharma as DW-2 and Gangaram as DW-3. [2025:RJ-JP:21683] (4 of 6) [CSA-431/1998] After hearing the parties, the trial Court vide judgment and decree dated 05.03.1997 dismissed the suit filed by the plaintiffs. The plaintiffs had preferred an appeal against the impugned judgment dated 05.03.1997 and appellate court vide judgment and decree dated 01.06.1998 allowed the appeal and set aside the judgment and decree dated 05.03.1997 passed by the trial court and directed the defendants to pay Rs.2200/- as compensation for using the well and also directed to pay Rs.440/- per month as mesne profit till receiving the possession of the well. The defendants filed the present second appeal and this Court vide its order dated 14.09.1998 admitted the present appeal on the following substantial questions of law: (1) Whether the appellate court could reverse the findings of the trial court on immovable property asking the defendants to pay damages to the plaintiffs when there is no specific averment in the plaint that the well in question belonged to the plaintiffs? (2) Whether the appellate court could impose damages for use of the well or immovable property on the defendants and in favour of the plaintiffs in a case where the plaintiffs could not claim or pray for possession of the well for immovable property in the plaint? (3) Whether an immovable property that is land or well situated therein could be taken back by a society from its member to whom the land was allotted without giving him an opportunity or being heard? (4) Whether a decree could be passed in favour of the plaintiffs in a case where the plaintiff failed to prove the issues burden of which was on them to prove? (5) Whether a plaintiff is entitled for damages in respect of a property for which he does not claim any [2025:RJ-JP:21683] (5 of 6) [CSA-431/1998] possession and the ownership of the plaintiffs is not proved? Learned counsel for the defendants also submits that appellate Court had committed error in allowing the appeal filed by the plaintiffs and decreeing the suit filed by the plaintiffs. Learned counsel for the defendants further submits that plaintiffs failed to prove that disputed well was not sold by them. The disputed well was situated in Plot No.107 which belongs to Gangaram, So, plaintiffs were having no right to charge money for using the water. Plaintiffs had not sought possession of the well, so they were not entitled to get any compensation but appellate court had committed an error in decreeing the suit and setting aside the judgment and decree passed by the trial court. Learned counsel for the defendants has placed reliance upon the following judgments:- (1) Jagdish Singh Vs. Natthu Singh reported in (1992) 1 SCC 647; & (2) Surain Singh(Dead) By LRs and Others Vs. Mehenga (Dead) by LRs reported in (1996) 2 SCC 624. Despite service of notice, none has appeared on behalf of the plaintiffs. I have considered the arguments advanced by learned counsel for the defendants and perused the impugned judgments. Trial court had dismissed the suit filed by the plaintiffs but appellate court had reversed the findings of the trial court and came to the conclusion that plot on which the well was situated was never sold to the defendants. Defendant-Gangaram in his evidence admitted the fact that at the time of purchasing the Plot No.107 the well was situated there. Motor and pipeline were also [2025:RJ-JP:21683] (6 of 6) [CSA-431/1998] established there and he had not restricted the plaintiffs for fetching the water. The appellate court also came to the conclusion that disputed land was not included in Plot No.107 of the defendants and the said land was not sold. The respondent No.5-Cooperative Society had given notice to the defendants (Exhibit-6) in which it was mentioned that only 150 square yards of land was allotted to Gangaram except the well. On account of mistake committed by Draftsman, site-plan of excess land was prepared and Cooperative Society also wrote a letter to Gangaram for returning the documents i.e. previous allotment letter and map, so that they could be created/amended but he had not returned the documents in the Cooperative Society and resultantly cancelled the allotment letter of Gangaram. So, in my considered opinion, appellate Court rightly came to the conclusion that disputed well was never included in the Plot of the defendant-Gangaram. It is an admitted position that water was supplied from the said well to the members of the Society, so plaintiffs are entitled to get money for using the water. So, order of the appellate court does not suffer from illegality and infirmity. No substantial questions of law has been proved by the defendants. So, the present appeal filed by the defendants being devoid of merit, is liable to be dismissed, which stands dismissed accordingly. Pending application(s), if any, stand(s) disposed of. AVINASH GULERIA /11 (NARENDRA SINGH DHADDHA),J