Rambharos vs Amichand and Another

Hon''ble Ms. Justice Bela M. Trivedi

The present appeal has been filed u/s 100 of CPC by the appellant-plaintiff challenging the judgment and decree dated 12.7.2007 passed by the Addl. District Judge, Neem Ka Thana, Sikar (hereinafter referred to as the "appellate court") in Civil Appeal No. 43 of 1997, whereby the appellate court has confirmed the judgment and decree dated 18.9.1997 passed by the Civil Judge (JD) and Judl. Magistrate, Neem Ka Thana, Sikar (hereinafter to be referred as the "trial court") in Civil Suit No. 71 of 1991. The short facts giving rise to the present appeal are that the appellant-plaintiff had filed the suit against respondent-defendants before the trial court seeking the permanent injunction for directing the respondents-defendants to they remove the construction over the plot belonging to the appellant-plaintiff. It was alleged in the suit interalia that a patta admeasuring about 120 square yards was allotted by the Collector, Sikar to the appellant-plaintiff on 23.3.1983 and the possession of same was also handed over to the appellant-plaintiff, however, the respondent-defendants had made encroachment over the part of the said land by putting up illegal construction thereon. The said suit was resisted by the respondent-defendants by filing the written statement denying the allegations and contending interalia that the appellant-plaintiff was never in possession of the disputed premises. The trial court after appreciating the evidence on record dismissed the suit of the appellant-plaintiff, against which the appeal was preferred before the appellate court, which has also been dismissed by the appellate court.

It has been sought to be submitted by Learned Counsel Mr. Yogesh Pujari for the appellant that both the courts below have failed to appreciate the evidence adduced by the appellant-plaintiff and wrongly dismissed the suit of the plaintiff. He also submitted that when the trial court had believed that the patta was issued to the plaintiff, the trial court and the appellate court had committed an error in not holding that the respondents had made encroachment over the disputed land and had made illegal construction thereon.

At the outset, it is required to be noted that though the impugned order passed by the appellate court is dated 12.7.2007 and though the present second appeal was filed as back as in October, 2007, the same remained pending for about five years at the admission stage without any substantive progress. It is also pertinent to note that the present appeal has been filed against the concurrent findings of facts recorded by the two courts below, and the Learned Counsel for the appellant has failed to point out any substantial question of law involved in the case. It is needless to say that the second appeal u/s 100 of CPC cannot be entertained unless there are substantial question of law involved in the case. There being no illegality or perversity pointed out by the Learned Counsel for the appellant in the impugned orders of the courts below, the present appeal deserves to be dismissed. The appeal being devoid of merits is hereby dismissed.