Full Judgment
1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL SECOND APPEAL NO.153/2013 Ratan Singh versus Manohar Singh Date of Judgment :: 05.03.2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.H.S.Balot, for the appellant.
---- BY THE COURT: This second appeal under Section 100 CPC is directed against the judgment and decree dated 21.05.2013 passed by the Additional District Judge, Sumerpur, District - Pali, whereby, the appeal filed by the appellant against the judgment and decree dated 10.01.2012 passed by the Civil Judge (Junior Division).Sumerpur, District - Pali has been rejected.
The facts in brief may be noticed thus: the appellant filed a suit for mandatory and permanent injunction against the sole respondent with the averments that a plot admeasureing 4800 square feet was situated at Village - Khangdi, Tehsil - Sumerpur, which was joint with his brother Dilip Singh and the same has been orally partitioned; it was claimed that on the eastern side of the said plot, there was a road, on which the defendant has raised illegal construction and for the purpose of ingress and egress from the said plot, the public road was being 2 used by the plaintiff and his neighbours for many yeaRs.which has now been closed on account of illegal construction and, therefore, the construction be removed by way of mandatory injunction and the defendant be directed by way of permanent injunction not to raise any construction in future.
A written statement was filed and the site map was disputed; it was claimed that there was no road/way on the eastern side of plaintiff's plot and the defendant has demolished his old construction and has raised new house; he has not encroached on any public way; the door of the plaintiff's property was on western side.
The trial court framed four issues.
On behalf of the plaintiff's three witnesses were examined and two documents were exhibited.
On behalf of the defendant no evidence was produced.
Ultimately, the matter proceeded ex parte against the defendant.
After hearing the parties, the trial court came to the conclusion that the so called Patta produced by the plaintiff was inadmissible in evidence, as the same was insufficiently stamped.
On consideration of the oral evidence, the trial court came to the conclusion that from the admissions of the plaintiff, it is apparent that he had made incomplete averments in the plaint and on eastern side of his house, there was defendant's house, whose gate was on the northern side and at the said place there was defendant's old construction, and ultimately, it came to the conclusion that there was no way/road available/existing as 3 claimed by the plaintiff and consequently, dismissed the suit seeking mandatory and permanent injunction.
Feeling aggrieved, the appellant filed fiRs.appeal before the Additional District Judge, Sumerpur, who vide impugned judgment came to the conclusion that the judgment and decree passed by the trial court did not call for any interference.
It was submitted by learned counsel for the appellant that the trial court fell in error in not framing issue regarding permanent injunction and in framing wrong issue regarding the Patta issued by Gram Panchayat.
It was further submitted that specific issue about admissibility of the Patta should have been framed, which also has not been framed, and therefore, the judgments of both the courts below stands vitiated.
I have considered the submissions made by learned counsel for the appellant.
It is well settled that framing of issues and burden thereof loose significance once, the parties are aware of each other's case and evidence is led by the parties.
Admittedly, when both the courts below have came to the conclusion that no way/road exists as claimed by the plaintiff then whether the issue regarding grant of permanent injunction, which plea also is based fundamentally on the plea of existence of way, is wholly meaningless.
So far as the admissibility of Patta is concerned, during the couRs.of plaintiff's evidence, the same was allowed to be marked as exhibit subject to decision on the issue at the time of final hearing.
4 During the couRs.of final hearing, the Court has come to a conclusion that the Patta was inadmissible, as the same was insufficiently stamped.
The finding recorded by both the courts below regarding existence of the so called way/road claimed by the plaintiff having been found as a fact against the plaintiff, no case for interference in the second appeal is made out.
Consequently, the present second appeal is dismissed.
(ARUN BHANSALI).J.
PKS-65