Deceased Through Lrs v. Municipal Council, Ajmer Through The Commissioner

Smt. Neelam Jain W/o Shri Prakash Chand Jain, Arya Samaj Road, Rampura, Kota

3. Smt. Roma Jain W/o Shri Sushil Kumar Jain, Infront Of Railway Phatak, Near Railway Station, Ajmer ----Proforma Respondents For Appellant(s) : Mr. M.M. Ranjan, Sr. Adv. with Mr. Rohan Agarwal For Respondent(s) : Mr. B. K. Sharma HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA 01/05/2025 Order This civil second appeal has been filed by the appellants- plaintiffs (for short ‘the plaintiffs’) against the judgment and decree dated 10.02.2012 passed by the Additional District and Sessions Judge (Fast Track) No.2, Ajmer in civil appeal No. 117/2011 whereby the appellate Court while dismissing the appeal filed by the plaintiffs, confirmed the judgment and decree dated

31.03.1997 passed by the Civil Judge (J.D.) and Judicial [2025:RJ-JP:18311] (2 of 5) [CSA-112/2012] Magistrate, West- Ajmer whereby the suit filed by the plaintiff has been rejected. Brief facts of the case that the original plaintiff filed a suit for permanent injunction against the respondent No.1-defendant (for short ‘the defendant’) mentioning therein that since 1979, the plaintiff is in possession of one cabin described in Para No.1 of the plaint. The said cabin was belonged to Shri Shyamlal S/o of Shri Ram Charan, who was the Proprietor of Kailash Photo Centre and the same was handed over by him to Shri Shyam Sunder S/o Banailal. The said cabin was purchased by the plaintiff from Shri Shyam Sunder vide agreement dated 13.11.79 and since then he was in possession and carrying on his business in the name of M/s Mahaveer Aabhaudshan Bhandar. It is further alleged that Shri Shyam Lal had constructed two cabins (one big and another small cabin). Big cabin was in the possession of Shyam Lal and small cabin was in the possession of the plaintiff. Shri Prakash S/o Shyam Lal sold both the cabins to other persons. On apprehension, the plaintiff wrote a letter to the defendant to transfer the small cabin in his name instead of transferring the same to other(s). The defendants replied on 25.08.1986 directing the plaintiff to remove unauthorized construction from the said small cabin. Hence, the plaintiff filed the said suit. The defendants filed the written statement and denied the aforesaid averments to the effect that the land over which the cabins were constructed never belonged to Shyam Lal. The cabin of Shyam Lal was behind the cabin of the plaintiff. It was further alleged that Shyam Lal never sold the property to Shyam Sunder [2025:RJ-JP:18311] (3 of 5) [CSA-112/2012] nor to the plaintiff. The plaintiff is only a trespasser. So, the defendant had right to remove his cabin. On the basis of pleadings of the parties, trial Court framed the following issues:- 1- 2- 3- 4- vk;k oknh us oknxzLr dsfcu tfj;s bdjkjukek ';kelqanj ls fn- 13-11-79 dks [kjhnh o rHkh ls ml ij dkfct gS\ vk;k oknh izfroknh dks oknxzLr dsfcu ls csn[ky djus ls LFkkbZ fu"ks/kkKk }kjk jksds tkus dk vf/kdkjh gS\ vk;k oknh us uxjifj"kn~ dh Hkwfe ij vfrØe.k fd;k gS ftls gVkus dk vf/kdkjh gS\ lgk;rkA To prove his case, plaintiff got himself examined as PW-1- Sameermal, PW-2 Mahaveerchand and got exhibited certain documents. To prove its case, defendant got examined DW-1- Radheshyam Gupta. After hearing the parties, trial Court vide judgment and decree dated 31.03.1997 dismissed the suit filed by the plaintiff. Aggrieved by the said judgment and decree dated

30.01.1997, the plaintiffs filed an appeal before the appellate court. The appellate court vide judgment and decree dated

10.02.2012 while affirming the judgment and decree dated

30.01.1997, dismissed the appeal filed by the plaintiffs. Learned senior counsel for the plaintiffs submits that the trial court as well as the appellate court committed an error in dismissing the suit as well as the appeal filed by the plaintiff. Learned senior counsel for the plaintiff further submits that from the evidence of PW-2 Mahaveerchand, it is clearly established that the plaintiff was having possession over the disputed property. The [2025:RJ-JP:18311] (4 of 5) [CSA-112/2012] said property was purchased by the plaintiff with a written agreement. So, it is a settled proposition of law that a person having possession can not be evicted without legal process of Law. So, the judgment and decree dated 10.02.2012 passed by the Appellate Court as well as the judgment and decree dated

31.03.1997 passed by the trial court are liable to be set-aside and the present second appeal deserves to be admitted on the substantial questions of law, as framed in the memo of appeal. Learned counsel for the defendants has opposed the arguments advanced by learned senior counsel for the plaintiff and submitted that the plaintiff had no right regarding the disputed property. He is only a trespasser and no protection was given to the trespasser. The defendants issued a letter on 25.08.1986 to the plaintiff directing him to remove unauthorized construction. So, the trial Court as well as the appellate court have not committed any error in dismissing the suit as well as appeal filed by the plaintiff and no substantial question of law is involved in this appeal. So, the appeal be dismissed. I have considered the arguments advanced by counsel for the parties and perused the impugned judgments. It is an admitted position that the plaintiff is neither a licensee nor a tenant of the disputed cabin. Shyam Lal had no right to sell the said cabin to the plaintiff and Shyam Sunder had also no right regarding the said cabin. So, in my considered opinion, the trial court as well as the appellate court had not committed any error in dismissing the suit and appeal filed by the plaintiff and no ground is made out to admit the appeal on the substantial questions of law, as framed in the memo of appeal. [2025:RJ-JP:18311] (5 of 5) [CSA-112/2012] Accordingly, second appeal filed by the plaintiffs is dismissed as no substantial question of law is made out in this appeal. Pending application(s), if any, stand(s) disposed of. Gourav/51 (NARENDRA SINGH DHADDHA),J