Parivahan Nagar, Khatipura Road, Jaipur v. Laxmi Narayan S/o

Judgment

2. Goverdhan Singh S/o Beri Sal Singh C-27, Chomu House, Jaipur At Present Residing At Parvahan Nagar, Khatipura Road, Jaipur

M.p. Srivastava S/o Shri H.k. Srivastava, Plot No.45, Parivahan Nagar, Khatipura Road, Jaipur ----Appellants Versus Laxmi Narayan S/o Shri Moji Ram Plot No.-2, Ganesh Colony, Khatipura, Jaipur Rupendra Choudhary S/o Laxmi Narayan Plot No.117, Gangasagar Colony, Panchawala, Near 200 Feet Bypass, Jaipur

3. Sukhram @ Ramu Chaudhary S/o Laxmi Narayan Plot No.117, Gangasagar Colony, Panchawala, Near 200 Feet Bypass, Jaipur

5. Jaipur Development Authority, Jawahar Lal Nehru Marg, Jaipur Krishna Cooperative Society, C/O Pratap Punia, A-5, Hari Nagar, Near Amanishah Dargah, Shastri Nagar, Daipur ----Defendant-Respondents

6. Fatesh Singh (Since Deceased). 6/1 Smt. Supayar Kanwar W/o Late Fateh Singh, aged about 75 years, resident of Plot No.47, Parvahan Nagar, Khatipura, Jaipur 6/2 Shri Bhawani Singh S/o Late Fateh Singh, aged about 75 years, resident of Plot No.47, Parvahan Nagar, Khatipura, Jaipur 6/3 Shri Rajendra Singh S/o Late Fateh Singh, aged about 75 years, resident of Plot No.47, Parvahan Nagar, Khatipura, Jaipur

7. Smt. Rukmani Devi Wife of Mohan Lal, Resident of Plot No.48, Praivahan Nagar, Khatipura Road, Jaipur ----Proforma-Respondents [2025:RJ-JP:4058] (2 of 5) [CSA-205/1999] For Appellant(s) : Mr. Sandeep Saxena with Ms. Neha Swami For Respondent(s) : Ms. Anubha Singh through VC HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 22/01/2025 Order

1. Instant second appeal is preferred by plaintiff aggrieved from judgment dated 26.02.1999 in civil regular appeal No.72/1995 passed by learned Additional District Judge No.2, Jaipur City, Jaipur whereby on an appeal preferred by defendant No.2, judgment and decree dated 14.09.1995 in civil suit No.1038/1990 passed by learned Additional Civil Judge (Junior Division) No.3, Jaipur City was set aside and suit of present appellants-plaintiffs, was dismissed.

2. The facts giving rise to instant appeal are that the appellants and respondent Nos.6 and 7 have filed a suit for permanent injunction against respondent Nos. 1 to 5 stating that on east side of the plot No.45, 46, 47 and 48 there was a road having width of 160 feet which was a public street but defendant Nos. 1 to 3 have encroached upon public street and started digging for purpose of filing the foundation for construction and encroachment. Defendant Nos. 1 to 3 remained ex-parte despite service upon them before the trial court but defendant Nos. 4 JDA has contested suit and filed a written statement. Three witnesses PW- 1, PW-2 and PW-3 were examined by the plaintiffs and documents Ex.1 to Ex.7 were exhibited by the plaintiffs in their evidence. On the basis of both oral and documentary evidence, a suit of [2025:RJ-JP:4058] (3 of 5) [CSA-205/1999] plaintiffs was decreed on 14.09.1995 and the trial court has restrained respondent nos. 1 to 3 from making any encroachment over the road of 160 feet situated in east side of plot Nos. 45, 46 and 48.

3. Defendant No.2 has filed an appeal and without serving notice to the appellants plaintiffs the appellate court has decided the appeal ex-parte against the plaintiffs (present appellants) and set aside the judgment and decree dated 14.09.1995 passed by the trial court. Aggrieved from aforesaid setting aside of the judgment and decree by the appellate court, instant second appeal is preferred by some of the plaintiffs (present appellants), wherein following substantial question of law was framed at the time of admission:- "Whether the appellate court was justified in reversing the judgment of the trial court even though no evidence whatsoever either documentary or oral was submitted by the defendant respondent.”

4. After completion of service when this matter was taken up then an application has been filed for taking on record patta of plot No.45 allotted by JDA. The counsel appearing for JDA has no objection in allowing the application therefore this application is allowed and document is taken on record though this has no bearing on the case for now.

5. During course of argument, learned counsel for JDA has filed an approved map of Parivahan Nagar and with consent of learned counsel for appellant, same is taken on record.

6. Learned counsel for JDA appearing through VC has submitted that as per approved plan, 160 feet road, as claimed by the [2025:RJ-JP:4058] (4 of 5) [CSA-205/1999] plaintiffs-appellants, exists in plan and accordingly present appeal be allowed. Learned counsel for appellants submitted that the judgment of first appellate court is contrary to settled proposition of law and the appellate court without considering the evidence and material on record and even without notice to appellants, set aside the well reasoned judgment passed by the trial court. He further submitted that there was no evidence on record filed by defendant Nos. 1 to 3.

7. Having considered the submissions of learned counsel for appellant and also counsel for JDA, it is evident on record that after filing of suit by the plaintiff, the defendant Nos. 1 to 3 remained absent before the trial court and even they have not filed any written statement before the trial court. A perusal of record indicated that an ex parte proceeding was ordered against defendant Nos. 1 to 3 and ultimately on the basis of evidence of plaintiffs the suit was decreed in favour of plaintiffs. Learned appellate court has allowed the appeal in absence of present appellants. As per ordersheet dated 06.12.1996 plaintiffs who were respondents before the first appellate court have refused to accept notice and as a result the service was found sufficient. A perusal of record indicated that service through ordinary process was not effected and only on refusal, service was found sufficient against the plaintiffs. Herein learned appellate court has observed that there is no evidence on record to show that the road in question was 160 feet. The appellate court has discussed the evidence of plaintiffs that there is no evidence contrary evidence of PW-1, PW-2 and PW-3. The defendant Nos. 1 to 3 have not submitted any evidence before the trial court. [2025:RJ-JP:4058] (5 of 5) [CSA-205/1999]

8. Now the JDA has supported the case of plaintiffs and according to them the proved map is placed on record. As per Rajasthan Land Revenue Act and also the provision under the JDA Act the final plan has been approved by JDA, wherein 160 feet wide road was shown as part of plan. If anyone is aggrieved then he can challenge the same but herein looking to approved plan and also admission by the counsel for JDA, judgment passed by the appellate court is contrary to the material placed on record, therefore, the appeal is liable to be allowed and judgment of first appellate court is liable to be set aside and of trial court is required to be restored.

9. In view of aforesaid, substantial question of law is answered in affirmation and accordingly civil second appeal is liable to be allowed.

10. In view of aforesaid, instant appeal is hereby allowed and judgment dated 26.02.1999 in civil regular appeal No.72/1995 passed by learned Additional District Judge No.2, Jaipur City is hereby set aside and judgment and decree dated 14.09.1995 in civil suit No.1308/1990 passed by learned Additional District Judge (Junior Division) No.3 is hereby restored.

11. No order as to cost.

12. Decree be prepared accordingly.

13. Misc. application, if any, stands disposed of. PREETI VALECHA /198 (ASHOK KUMAR JAIN),J