Jahid Ali Ors v. Smt. Sabra Ors., whereby the First Appellate Court while dismissing the appeal fi

Judgment

1. Smt. Sabara W/o Abdul Said Khan, Rasta Phuta Khurra, Chokri Ram Chandraji, Mohalla Chabuksawaran, Jaipur

2. Kulsum W/o Nanhe D/o Abdul Wahid, B/c Musalman, Moti Doongri Road, Jaipur

: Mr. C.L. Saini For Respondent(s) : None Present HON'BLE MR. JUSTICE GANESH RAM MEENA Judgment [2025:RJ-JP:30924] (2 of 13) [CSA-508/2002] Reserved on Pronounced on ::: ::: August 06, 2025 September 04, 2025

1. This civil second appeal has been filed by the appellants/defendants under section 100 CPC against the judgment and decree dated 26.8.2002 passed by the Court of learned Addl. District Judge No.2, Jaipur City, Jaipur (for short ‘the First Appellate Court’) in Civil Regular Appeal No.53/2001, Jahid Ali & Ors. v. Smt. Sabra & Ors., whereby the First Appellate Court while dismissing the appeal filed by the appellants confirmed the judgment and decree dated

09.10.2001 passed by the Court of learned Addl. Civil Judge (Jr. Division) & Judicial Magistrate-Ist Class, Jaipur City, Jaipur (for short ‘the trial court’) in Civil Suit No.57/1995, Smt. Sabira & Anr. v. Ikram Ali Khan & Ors.

2. The facts emerge from the pleadings are that the respondents/plaintiffs filed a Civil Suit before the trial court for possession and permanent injunction against the appellants / defendants mentioning therein that the house No. 2752 situated at Mohalla Chabuk Sawaran, Jaipur is their parental property and same is in illegal possession of the appellants/defendants. When the respondents/ plaintiffs came back from Sikar after attending a marriage of their relative on 17.10.1993 they found that the appellants /defendants have illegally occupied the room situated near W.C. in the Southern side of the house. [2025:RJ-JP:30924] (3 of 13) [CSA-508/2002] After issuing of the notices, appellants/defendants submitted their written statement before the learned Trial Court and denied about the allegations and mentioned that the land of the room bearing khasra no. 3023 (house no. 2753) is mentioned in the Survey Report in the name of Ikram Khan S/o Shri Ghasi Khan who is father of the is appellants/defendants. Therefore, the room in their legal possession due to title of their father.

3. The trial court allowed the civil suit filed by the respondents/ plaintiffs and passed the impugned judgment & decree dated 9.10.2001.

4. Against the impugned judgment and decree dated

09.10.2001 passed by the trial court, the appellants /defendants preferred regular appeal before the First Appellate Court. The First Appellate Court vide judgment dated 26.8.2002 dismissed the appeal filed by the appellants/ defendants and passed the decree.

5. The appellants/defendants aggrieved with the impugned judgments and decrees passed by both the courts below have preferred instant second appeal.

6. Mr. C.L. Saini, learned counsel appearing for the appellants /defendants argued that the impugned judgments & decrees passed by both the learned courts below are against the material available on record as well as provisions of law. He also submitted that First Appellate Court has erred [2025:RJ-JP:30924] (4 of 13) [CSA-508/2002] by not considering the evidence available on record and failed to consider the documents and material available on record and passed the judgment and decree dated 26.8.2002 and confirmed the judgment and decree dated 9.10.2001 passed by the learned Trial Court. The findings given by the learned First Appellate Court are contrary to the facts and material and documents available on record. Hence the same is bad in eye of law. Counsel further submitted that the First Appellate Court has failed to consider this important aspect of the case while deciding the appeal filed by the appellants/defendants vide judgment dated 26.8.2002 that the Exhibit-13 of the suit i.e. Site-Plan was also exhibited along-with the earlier suit filed by the appellants /defendants and the said site-plan was a part of the earlier suit which was filed to take possession of the disputed house. The learned court below failed to consider that the disputed room was not the subject matter of the earlier suit in which the respondents/ plaintiffs admitted this fact that the room is in possession of the appellants/defendants since 1993. Counsel submitted that the appellants/ defendants filed the earlier suit before the Court of Additional District Judge No. 6, Jaipur City, Jaipur i.e. Civil Suit bearing number 45/80 which was dismissed 21st December, 1981. Counsel also submitted that a map which is Exhibit-13 of this suit was filed by the on [2025:RJ-JP:30924] (5 of 13) [CSA-508/2002] appellants/defendants before the learned trial Court on the previous occasion and in the earlier suit the prayer was made by the appellants/defendants before the learned trial Court that the property shown in yellow colour in the map is belonging to the present appellants/defendants and prayer was made by the appellants/defendants that the possession may kindly be handed over to them of the part of the property which is shown in yellow colour. Counsel also submitted that the present disputed room was shown in the said sketch with red colour and the same was shown in the possession of the plaintiffs of the earlier suit i.e. present appellants/ defendants. A copy of the map was exhibited before the learned trial Court in the present suit and the certified copy of the same was produced before the learned trial Court and the same was marked as Exhibit-13. Counsel submitted that the same has not been produced in original colours and due to this reason the map is not containing the yellow and red colours. Counsel also submitted that the First Appellate Court wrongly considered that the disputed room is the part of the earlier suit and gave its findings which are perverse as well as against true facts as well as against the important document available on record i.e. Exhibit-13. Counsel also submitted that the coloured map i.e. site-plan which was filed along-with the earlier suit is being filed in its original colours. [2025:RJ-JP:30924] (6 of 13) [CSA-508/2002] Counsel further submitted that the learned courts below also wrongly appreciated the documents i.e. Exhibit 1/1 and 2/1 i.e. survey sheet wherein the name of Ikram Khan s/o Shri Ghasi Khan was mentioned after the detailed enquiry made by the competent person. The First Appellate Court failed to read the document properly and gave its finding that the respondents/ plaintiffs are the holder of the land and the title of the land is in their favour. Such findings given by the First Appellate Court are perverse and against the material available on record i.e. Exhibit 1/1 and 2/1. Counsel also submitted that the First Appellate Court while deciding the appeal filed by the appellants/ defendants came to the conclusion that since the year 1981 to 1993 the respondents/ plaintiffs remained in possession of the disputed land and in the year 1993 the appellants/ defendants took illegal possession of the disputed room. Such findings of the First Appellate Court are perverse and against the true facts. Counsel further submitted that the appellants/ defendants on previous occasion filed the suit wherein it was categorically mentioned that the land of khasra no. 3023 (house no. 2753) is in possession of the present appellants/ defednats but the First Appellate Court while deciding the appeal filed by the appellants/ defendants failed to appreciate the sketch site plan in right perspective manner and gave its findings that the appellants/defendants themselves have [2025:RJ-JP:30924] (7 of 13) [CSA-508/2002] admitted that the disputed room was in possession of the respondents/plaintiffs. Such findings given by First Sppellate Court are perverse and against the documents and material available the and on record and it appears that such findings have been given by the First Appellate Court due the certified copy of the site-plan which is not in its original colours. Counsel further submitted that the trial Court has failed to appreciate the evidence properly produced by the appellants/ defendants and declared that the title of the disputed room is in favour of respondents/plaintiffs and decreed the suit vide judgment and decree dated 9.10.2001. The First Appellate Court also failed to consider the error committed by the learned trial court and confirmed the judgment and decree dated 9.10.2001 of the learned Trial Counsel also submitted that both the courts below failed to consider this important aspect of the case that the correction was made in the Survey Report belonging to Khasra no. 3023 wherein the name of the respondents/ plaintiffs mentioned and after the correction made by the competent authority, the signatures of the person who made such corrections in the Survey Report are available but in the certified copy of the Survey report which is hand written, only Sd/ is mentioned. Counsel also submitted that only on account of Sd/- the learned courts came to the conclusion [2025:RJ-JP:30924] (8 of 13) [CSA-508/2002] that the correction made in the survey Report is not according to law and held that the respondents/ plaintiffs is in possession of the disputed room. Such findings given by the learned courts below are contrary to Exhibit 1/1 and 2/1 wherein it is categorically mentioned that in Khasra no. 3023, Ikram Khan is in possession who is father of the appellants/ defendants. On this count, the findings of the learned courts below are perverse and bad in eye of law.

7. Despite service of notice, for the last five previous dates i.e. 09.04.2025, 16.04.2025, 30.04.2025, 21.05.2025 and 02.07.2025, no-one has appeared on behalf of the respondents/ plaintiffs.

8. Heard counsel appearing for the appellants/ defendants and gone through the record of the case.

9. While admitting this second appeal vide order dated

06.07.2006, the Court framed following two substantial questions of law for consideration of the Court:- “1. Whether on the basis of site plan i.e. Exhibit 13 it was held that the plaintiffs are in possession, is justified or not whereas no documentary evidence is available on record showing possession and title of the plaintiffs?

2. Whether the correction made in the survey report i.e. Exhibit 1/1 is a sufficient evidence for proving title of the room whereas according to Exhibit 1/1 and 2/1 it is categorically established [2025:RJ-JP:30924] (9 of 13) [CSA-508/2002] that in Khasra no. 3023 the father of the appellants viz. Ikram Khan is in possession?”

10. During the pendency of the appeal, the appellants/ defendants have placed on record the copy of the plaint filed by them earlier which has been decided by the competent Court vide judgment dated 21.12.1981. In view of the submissions made by the counsel for the appellants/ defendants, the Court feels that the said plaint is a document which may be material for adjudication of the issue and therefore, the Court deems just and proper to take on record.

11. The Court of Addl. Civil Judge (Jr. Division) & Judicial Magistrate-Ist Class No.1, Jaipur City, Jaipur, while passing the judgment dated 09.10.2001 has observed that in an earlier suit filed by the plaintiff- Jahid Ali in regard to the present suit property was dismissed and observed that the defendants were not in possession of the suit property i.e. a room. It has also been observed in that suit that the defendant/ appellant marked the present suit property.

12. On perusal of the averments made in the plaint of the suit filed earlier by the appellant/ defendant- Jahid Ali (which has been taken on record), it is revealed that there was no reference in the plaint of the room in regard to which the present suit has been preferred by the respondents/ plaintiffs. The First Appellate Court has also held the possession of the plaintiff over the suit property in view of the [2025:RJ-JP:30924] (10 of 13) [CSA-508/2002] dismissal of a suit filed by the appellant/ defendant earlier. However, the averments made in the plaint earlier submitted by the appellant /defendant, there was no mention of the present suit property and there was no adjudication as regards the present suit property. There is no any other evidence available on record showing the possession of the plaintiff/ respondent over the suit premises. Merely because the earlier suit preferred by the defendant/ appellant was dismissed without there being mention of the present suit premises in that suit, the findings arrived at by the trial court as well as the First Appellate Court showing the possession of the plaintiff/ respondent without there being any documentary evidence in this regard seems to be perverse and unjustified. On scrutiny of the record, the Court finds that in Ex.A2/1 the title over the suit property is in the name of Abdul Karim Khan and Ikram Khan (father of the defendant/ appellant). The document Ex.A1/1 which is the Survey Report of the Nagar Parishad also shows the title of the father of the appellant/ defendant over the suit property. The Survey Report clearly speaks that the father of the appellant/ defendant was in possession over the suit premises.

13. DW4 Kamruddin, who was the employee of the Nagar Nigam, Jaipur, on the basis of the record of the Municipal Corporation, has stated that the Khasra No.3023 is in the name of Ikram Khan s/o Ghasi Khan (father of the [2025:RJ-JP:30924] (11 of 13) [CSA-508/2002] appellant/ defendant). The said witness has also stated on oath that no alteration or correction can be made by any person in the official record or in the register. The document Ex.A2/1 also speaks that the name of the father of the defendant/ appellant was shown as owner of the suit premises by an order of the Competent Authority. The amendment / alteration in the Survey Report has been made after due inquiry as is evident from the document Ex.A2/1. When from the averments made in the plaint of the suit earlier filed by the respondents/ plaintiffs clearly speaks that the present suit premises was not a part of that suit property then merely dismissal of that suit, cannot be made the basis for holding that the appellants/ defendants were not in possession of the suit premises but it was the respondents/ plaintiffs who were in possession. The finding of the court below as regards the possession merely on the basis of the decision of the earlier suit, though the suit premises was not subject matter of earlier suit, is perverse and deserves to be interfered with.

14. In view of the discussion made above, merely on the basis of the Site Plan i.e. Ex.13, the plaintiff cannot be said to be in possession of the suit premises as they are not having any evidence to show their possession or title over the suit premises because the findings of the courts below are based only on the fact that the earlier suit filed by the [2025:RJ-JP:30924] (12 of 13) [CSA-508/2002] plaintiff was dismissed, though on perusal of the plaint of the earlier suit, the Court finds that there was no mention of the present suit property as a part of the suit property in that case.

15. The suit filed by the respondents/ plaintiffs with the averments that they were in possession of the suit premises, however, when they were out for marriage ceremony, the appellants/ defendants have taken possession of the suit premises and therefore, the possession of the suit premises be restored in their favour. On the discussion made above, the Court has come to the conclusion that the respondents/ plaintiffs have not been able to prove their title or possession over the suit premises at any point of time and therefore, the suit for restoration of possession and injunction deserves to be dismissed.

16. The appellants/ defendants have been able to prove the substantial questions of law in their favour. So, the appeal filed by the appellants/ defendants deserves to be allowed.

17. Accordingly, the second appeal filed by the appellants/ defendants is allowed and judgment and decree dated 09.10.2001 passed by the Court of learned Addl. Civil Judge (Jr. Division) & Judicial Magistrate-Ist Class, Jaipur City, Jaipur in Civil Suit No.57/1995, Smt. Sabira & Anr. v. Ikram Ali Khan & Ors., which has been affirmed by the Court of [2025:RJ-JP:30924] (13 of 13) [CSA-508/2002] learned Addl. District Judge No.2, Jaipur City, Jaipur in Civil Regular Appeal No.53/2001, Jahid Ali & Ors. v. Smt. Sabra & Ors., vide judgment and decree dated 26.8.2002 are quashed and set aside and the suit filed by the respondents/ plaintiffs is dismissed.

19. The decree be prepared accordingly. In view of the judgment passed in the main appeal, the stay application and pending application/s, if any, also stand disposed of.

20. The Registry is directed to send back the record of the case to the concerned Court forthwith. (GANESH RAM MEENA),J Sharma NK/Dy. Registrar