Biharilal and Others vs Pankaj and Others

Dr. Vineet Kothari, J.—The appellants/plaintiffs, Biharilal S/o. Sh. Tarachand Choudhary and others, filed a suit in the representative capacity, for injunction with respect to Plot No. 74 near Govt. Girls Senior Secondary School, Badi Sadri. The appellants/plaintiffs having concurrently lost the legal battle before the two courts below has preferred this second appeal assailing the judgment and decree dated 09.10.2012 passed by learned Additional District Judge, Nimbahera, Camp- Badi Sadri, dismissing plaintiffs'' First Appeal No. 25/2008- Biharilal and Ors. v. Pankaj and Ors., and affirming the judgment and decree dated 19.08.2008 passed by learned Civil Judge (Sr. Division), Badi Sadri, whereby the suit filed by the appellants/plaintiffs (Civil Original Suit No. 55/2006- Biharilal and Ors. v. Pankaj and Ors.), against the defendants seeking injunction was dismissed.

According to the appellants/plaintiffs, the plot in question being Plot No. 74 could not have been allotted by the defendant No. 3, Municipal Council, Badi Sadri, as it was reserved or earmarked for school and the plot purchased by the defendants No. 1 and 2, namely, Pankaj S/o. Sh. Prem Singh Mehta, and Prem Singh S/o. Manmal Mehta, which was purchased by them through a registered sale-deed from one Shanker Dan, was actually Plot No. 73. Thus, the appellants/plaintiffs prayed for relief of permanent injunction against the defendants from taking possession of Plot No. 74.

The learned trial court after evaluating the evidence and material placed before rejected the suit filed by the appellants finding that actually the said suit Plot was Plot No. 73 as the Plot No. 74 was in the possession of the Govt. Girls school, which was adjacent to Plot No. 73, duly purchased by the defendants No. 1 and 2/respondents, which they purchased from its owner i.e. Sh. Shanker Dan under a registered sale-deed. The learned trial court also observed that suit was barred by the principles of res-judicata since the earlier also the owner of the plot, i.e. Sh. Shanker Dan, filed a Suit No. 208/80, and the said suit was decided by the learned trial court in favour of said Shanker Dan.

The relevant findings of the learned trial court from the order dated 18.08.2008 are quoted herein below for ready reference:--

The first appeal filed by the appellants/plaintiffs (Appeal No. 25/2008 was also dismissed by the learned first appellate court of Additional District Judge, Nimbahera, Camp Badi Sadari, vide judgment and decree dated 09.10.2012. The relevant findings of the learned first appellate court are quoted herein below for ready reference:--

Mr. K.C. Samdariya, learned counsel for the appellants/plaintiffs submitted that no evidence has been recorded by the learned trial court and on the basis of preliminary issue of res-judicata only the learned trial court erroneously found that the actual plot number was Plot No. 73 whereas the suit was filed with respect to Plot No. 74 and, therefore, the representative suit was very much maintainable, which has been wrongly dismissed by the courts below. Therefore, findings are, therefore, perverse and substantial a question of law arises in the present second appeal filed by the appellants/plaintiffs.

On the other hand, Mr. Shreyansh Mardiya appearing on behalf of Mr. Sandeep Shah, learned counsel for the respondents No. 1 and 2 (defendants) submitted that the findings of facts have been correctly arrived at by both the courts below and the present suit was filed by the plaintiffs on account of political vendetta against the defendants and the Plot No. 73 only was purchased by the defendants, whereas Plot No. 74 was in the possession of the Govt. Girls school and in the earlier suit by the Chairman of the Municipal Council, namely, Suit No. 208/80, in which the plaintiff had got decreed the suit, the same person could not maintain the present suit in the representative capacity, which has rightly held to be barred by the principles of res-judicata.

Having heard the learned counsel for the parties and having perused the judgments and decree of the courts below, this Court is satisfied that no substantial question of law arises for consideration by this Hon''ble Court in the present second appeal of the appellants/plaintiffs under Section 100 of CPC, 1908. Both the courts below have concurrently and rightly dismissed the suit filed by the appellants/plaintiffs for permanent injunction against the defendants No. 1 and 2 in respect of Plot No. 73 duly purchased by them by wrongly describing the same as Plot No. 74, which was found to be in possession of the Govt. Girls School.

Resultantly, the present second appeal of the appellants/plaintiffs deserves dismissal and the second appeal is, accordingly, dismissed. No costs. A copy of this order be sent to the concerned parties and the courts below forthwith.