Present Mehandipur Balaji, Tehsil Todabheem, District Karauli Raj v. Badari S/o Geelya, R/o Sankarwada, Todabheem, District Karauli Since Deceased Thr

: Mr. Prem Kumar Sharma For Respondent(s) : Mr. Rajesh Kumar Mr. Yogesh Kumar Meena for Mr. Kapil Bardhar HON'BLE MR. JUSTICE MANEESH SHARMA Order 19/05/2025 MANEESH SHARMA, J (ORAL):

1. The present second appeal has been filed on behalf of the plaintiff/appellants under section 100 of the Code of Civil [2025:RJ-JP:21103] (2 of 10) [CSA-806/2017] Procedure, 1908 against the judgment and decree dated

10.10.2017 passed by learned Additional District Judge No.2, Hindauncity, District Karauli in regular civil appeal No.34/2012 (29/2008), whereby the learned Appellate Court has dismissed the appeal preferred by the plaintiff/appellants against the judgment and decree dated 20.08.2008 passed by the learned Civil Judge (Junior Division) Todabheem in civil suit No.22/2002 titled as "Jagdish & Ors. vs. Badari & Ors.", whereby the learned Trial Court has dismissed the suit filed by the plaintiff/appellants.

2. Brief facts giving rise to the second appeal are that on

10.06.2002, the plaintiff/appellants filed a civil suit for permanent injunction in respect of property situated at Gram Mahendipur Balaji, Tehsil Todabheem District Karauli. It was stated by the plaintiff/appellants that they are in possession of the land situated at Gram Mahendipur Balaji, Tehsil Todabheem, District Karauli, having a width of East-West 32 feet and North-South 150 feet. They further submit that the plaintiff/appellants have been in possession of the property from the time of their forefathers and that they had been using the said property without any interference. It is the case of the plaintiff/appellants that they have held long possession over the said property and the defendant/respondents want to dispossess them, whereas the defendant/respondents have no right, title or interest with regard to the said property and, therefore, the defendant/respondents may be restrained from creating any hindrance in the peaceful use and occupation of the suit property by the plaintiff/appellants and further not to dispossess the plaintiff/appellants from the property [2025:RJ-JP:21103] (3 of 10) [CSA-806/2017] in dispute and accordingly, prayed for decree of permanent injunction.

3. That on 29.07.2002, the defendant/respondents had filed a joint written statement wherein they had denied the averments made in the plaint and they have further submitted that the plaintiff/appellants are not in possession of the land in question. Further the plaintiff/appellants have no right, title or interest in the suit property. They further stated that the suit property is in possession of the defendant/respondents and that the suit property was allotted to defendant/respondent No.1 Badari S/o Geelya by the Gram Panchayat, Sankarwada vide Patta No.2 dated

06.10.1981. They further stated that on the said piece of land, they had constructed shops, and they have further stated that with regard to the land of Khasra No.156/186 (Abadi land) measuring 3 bigah 12 biswa, the same is also in possession of the defendant/respondents. They further stated that the plaintiff/appellants are out of possession and want to forcefully take possession of the suit property, whereas the plaintiff/appellants have no right, title or interest in respect of the suit property. Therefore, the plaintiff-appellants are not entitled to seek any injunction. Thus, the suit filed by the plaintiff/appellants may kindly be dismissed with cost.

4. That on 24.08.2006, on the basis of pleadings of the parties learned trial Court framed following issues:- ^^1- D;k okni= ds iSjk ua- 3 o 4 esa of.kZr vkoklh; Hkw[kaM ij oknh dk LokfeRo o iq'rSuh gS] ftl ij firk ds thoudky ls gh dCtk gS \ [2025:RJ-JP:21103] (4 of 10) [CSA-806/2017] 2- D;k izfroknh la[;k 5 u rks oknhx.k o izfroknhx.k ds ifjokj dk gS fQj Hkh izfroknh la[;k 1 rk 4 ls fookfnr Hkw[kaM esa ls vk/ks fgLlk feyus ds ykyp esa izfroknh ls feydj oknhx.k dks fookfnr Hkw[kaM ls csn[ky djuk pkgrk gS] tcfd oknhx.k izfroknhx.k dks bl d`R; ls jksdus dk vf/kdkj j[krk gS \ 3- D;k fookfnr lEifRr izfroknhx.k dh LovftZr gS] tks [kljk uacj 1057@1086 xSj eqefdu vkcknh gS] ftldk iV~Vk izfroknh ds uke gS] ftlesa 22 o"kZ ls edkukr o nqdkusa cuh gS \ 4- D;k dfe'uj fjiksVZ xyr gS \ 5- vk;k fookfnr fo"k; ij iwoZ esa ,d nkok yfEcr gS] vr% nkok /kkjk 10 lhihlh esa LFkfxr fd;k tkos \ 6- D;k /kkjk 80 lhihlh dk uksfVl ugha nsus ls nkok pyus ;ksX; ugha gS \ 7- vuqrks"k \**

5. That plaintiff/appellants in order to substantiate the averments made in the plaint examined PW-1 Kailaram, PW-2 Banwari Lal and produced documents Ex.1 receipt of contractor dated 08.01.2002 issued by Tehsildar, Ex.2 receipt of Electricity Department, Ex.3 Electricity Bill, Ex.4 Patta dated 10.10.1978 issued by Gram Panchayat Sankarwada in favour of Sh. Ganga Sahai Meena and Ex.5 copy of the judgment passed by learned Civil Judge (Jr. Division) and Judicial Magistrate in criminal case No.37/2002 dated 20.01.2006.

6. That in response to the said oral and documentary evidence, the defendants/respondents have examined DW-1 Badari S/o Geelya, DW-2 Amar Singh, DW-3 Ramji Lal and also produced documents Ex. A-1 notice of Tehsildar dated 29.03.1986, Ex. A-2 another notice issued by the Tehsildar dated 15.06.1993, Ex. A-3 [2025:RJ-JP:21103] (5 of 10) [CSA-806/2017] Charge-sheet dated 21.09.2001 against Jagdish, Kailaram and Mahesh Chand, Ex. A-4 site plan, Ex. A-5 injury report dated

28.08.2001, Ex. A-6 Patta No.2 dated 06.10.1981 issued in favour of Badari S/o Geelya by Gram Panchayat Sankarwada Samiti, Todabheem (Sawaimadhopur) and Ex. A-7 letter of Gram Panchayat Sankarwada and Ex. A-8 map of the disputed property.

7. That after hearing arguments of the learned counsel for the parties, the learned Trial Court has dismissed the suit filed by the plaintiff/appellants vide its order dated 20.08.2008 while observing that the plaintiff/appellants have failed to prove any title over the suit property and on the contrary from the evidence available on record, it is duly established that the land in dispute was allotted to the defendant/respondent No.1 Badari S/o Geelya vide Ex. A-6, therefore, the said piece of land is owned by Badari S/o Geelya.

8. The learned Trial Court further observed that the remaining land of Khasra No.156/186 is also in possession of the defendant/respondents, therefore, plaintiff/appellants are not entitled to seek injunction against the owner. Consequently, dismissed the suit vide impugned order dated 20.08.2008.

9. Being aggrieved of which, the plaintiff/appellants had preferred first appeal under Section 96 of the Code of Civil Procedure, 1908 and the learned Appellate Court after hearing learned counsel for the respective parties dismissed the appeal filed by the plaintiff/appellants and confirmed the judgment and decree dated 20.08.2008 passed by learned Civil Judge (Junior Division) Todabheem vide its order dated 10.10.2017. [2025:RJ-JP:21103] (6 of 10) [CSA-806/2017]

10. Feeling aggrieved of which, the plaintiff/appellants have preferred the second appeal.

11. Learned counsel for the plaintiff/appellants submits that both the learned Courts below seriously erred in dismissing the suit filed by the plaintiff/appellants and also erred in not considering Patta No.2 dated 10.10.1978 issued by Gram Panchayat in favour of Sh. Gangasahai (father of the plaintiff/appellants). He further submits that both the learned Courts below have also erred in law while dismissing the suit despite having sufficient evidence on record to establish the case of the plaintiff/appellants. He submits that with regard to submissions so made hereinabove, the impugned judgment and decree passed by both the learned Courts below are liable to be set aside and suit filed by the plaintiff/appellants may be decreed in terms of relief claim therein.

12. Per contra, learned counsel for the defendant/respondents opposes the prayer and submits that both the learned Courts below after careful examination of the facts and evidence on record have arrived at a conclusion that the plaintiff/appellants do not have any right, title or interest with regard to the suit property, therefore, the plaintiff/appellants cannot seek injunction against a true owner and rightly so, dismissed the suit filed by the plaintiff/appellants. Therefore, suit of the plaintiff/appellants has rightly been dismissed.

13. Heard and considered the submissions made at the bar and perused the material available on record.

14. From the record of the case, it is revealed that the plaintiff/appellants have set up a case that they are in possession of the disputed land from time of their forefathers on the basis of [2025:RJ-JP:21103] (7 of 10) [CSA-806/2017] Patta dated 10.10.1978 issued by Gram Panchayat in favour of Sh. Gangasahai Meena, therefore, the defendant/respondents have no right to dispossess them from suit property but a bare perusal to the entire plaint, it is evident that the plaintiff/appellants have not pleaded a word about the said Patta dated 10.10.1978 issued in favour of Sh. Gangasahai Meena. In the entire plaint and in view of the letter Ex. A-7 issued by Gram Panchayat, Sankarwada dated

20.06.2002 the Gram Panchayat certified that no such Patta was issued in favour of Sh. Gangasahai Meena and Gram Panchayat also certified the fact that the land in question belongs to respondent No.1 Badari S/o Geelya in whose favour Gram Panchayat, Sankarwada issued Patta No.2 dated 06.10.1981.

15. From the record of the case, it is also proved that the plaintiff/appellants have failed to prove their right, title or interest the suit property. On the contrary, defendant/respondents have proved their ownership right and possession over the suit property.

16. That from examination of the impugned order, it is established that learned trial Court after careful examination of the pleadings of the parties and evidence available on record held that the plaintiff/appellants miserably failed to prove the averments made in the plaint and also failed to prove document of ownership with regard to the suit property. On the contrary the learned Trial Court has recorded that the defendant/respondents have proved their ownership over the suit property by producing Ex. A-6 Patta No.2 dated 06.10.1981 issued by Gram Panchayat, therefore, in the absence of any title, the plaintiff/appellants are [2025:RJ-JP:21103] (8 of 10) [CSA-806/2017] not entitled to seek injunction against a true owner and therefore, the learned Trial Court rightly dismissed the said suit.

17. The said finding of the learned Trial Court have been heard by the learned Appellate Court in detail and the learned Appellate Court after re-examination of the entire matter has reiterated the findings recorded by the learned Trial Court and observed that the plaintiff/appellants have failed to prove the title over the suit property and also observed that the plaintiff/appellants have not challenged the Patta No.2 dated 06.10.1981 issued by Gram Panchayat despite having full knowledge, therefore, learned Appellate Court dismissed the appeal while holding that there is no illegality in the impugned order of the learned trial Court and accordingly, dismissed the appeal vide its order dated 20.08.2008.

18. That all the arguments so raised by learned counsel for the plaintiff/appellants are related to questions of fact and nowhere relates to substantial questions of law. It is a trite law that this Court while hearing second appeal under Section 100 of the Code of Civil Procedure, 1908 should not entertain the questions of fact and this Court should hear only the substantial questions of law and confine the course of hearing only to the substantial questions of law.

19. A bare perusal of the findings recorded by the learned trial Court as well as of the learned First Appellate Court reveals that both the courts below have considered the pleadings of the parties and evidence on record at length and from the bare perusal of the impugned orders, it is evident that there is no illegality or perversity in the impugned orders. [2025:RJ-JP:21103] (9 of 10) [CSA-806/2017]

20. Further, the question of law proposed in the second appeal falls within the realms of questions of fact and does not fall within the purview of the substantial questions of law.

21. That in the decision reported as AIR 2020 SC ( 4321 ) , Nazir Mohamed vs J.Kamala And Ors., the Hon'ble Apex Court held that the condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujjar reported in ( 199 9) (3) SCC 722 , the Hon'ble Apex Court held that after the amendment, a second appeal can be filed only if a substantial question of law is involved in the case and it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. As such, second appeal cannot be decided on equitable grounds rather conditions mentioned in section 100 of Code of Civil Procedure, 1908 must be complied with to admit and maintain a second appeal. In Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166, it was held that the High Court should not re-appreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the first appellate court.

22. In view of the discussions made herein above, no question of law much less any substantial question of law is involved in the second appeal requiring interference by this court in exercise of its jurisdiction under section 100 of Code of Civil Procedure.

23. In view of the aforesaid facts and circumstances, this court is of the considered opinion that the findings of the learned trial [2025:RJ-JP:21103] (10 of 10) [CSA-806/2017] court as well as appellate court are based on proper appreciation of oral and documentary evidence. Hence, concurrent findings of the learned trial court as well as the appellate court are found immaculate and infallible in the eye of law. Accordingly, no substantial question of law is made out, the impugned judgment and decree passed by learned courts below are hereby affirmed and in result thereof, the second appeal being devoid of merits, is hereby dismissed.

24. The present second appeal is dismissed. All the pending application(s), if any, also stands disposed of. (MANEESH SHARMA),J DEEPA RANI -68 Whether Reportable : Yes/No