M/s Shyam Stone Crusher vs State Of Rajasthan And Ors

The instant appeal is filed by appellant to challenge judgment dated 17.07.2009, passed by Additional District Judge (Fast Track), Parbatsar (for short,

‘learned lower appellate Court’), whereby learned lower appellate Court has affirmed judgment and decree dated 27.01.2009, passed by Civil

Judge (Junior Division) Kuchaman City (for short, ‘learned trial Court’).

Learned trial Court, at the threshold, after considering evidence and other materials available on record, dismissed the suit of appellant for perpetual

and mandatory injunction. Being aggrieved by same, appellant approached learned lower appellate Court and before the learned lower appellate Court

an endeavour was also made by appellant for producing additional evidence. Learned lower appellate Court considered the prayer for taking additional

evidence on record as well as merits of the case, and after determining necessity and relevance of additional evidence sought to be tendered by

appellant, declined its prayer. Switching on to merits of the case, learned lower appellate Court fully concurred with the findings and conclusions of the

learned trial Court. The concurrence of the learned lower appellate Court with the findings and conclusions of learned trial Court entailed rejection of

first appeal.

The instant second appeal is pending since 2009 and at the threshold relying on the statement of learned counsel for the appellant that there is

plantation on the land in question and further erection of water-hut for employees, Court vide order dated 12.01.2015 directed the learned counsel to

produce photographs to substantiate his plea. This direction was given by the Court after considering the argument of Government Counsel that

neither there is plantation nor there is erection of water-hut on the land in question. Learned Government Counsel also submitted that appellant cannot

be permitted to encroach on public land for utilizing the same for mining purposes.

Yet again on 28.03.2017 the Court granted last opportunity by passing following order:-

“Last opportunity is granted to learned counsel for the appellant to file the photographs in view of the order dated 12th January, 2015.

More than two years have already been passed and the compliance has not yet been made.

In any case, this will be the last opportunity; failing which, learned counsel for the appellant is directed to proceed with the matter on merits.

List this matter after four weeks.â€​

Since order dated 28.03.2017 also, more than two years have elapsed but no endeavour is made by appellant to produce requisite photographs. I am

aghast that despite direction of the Court dated 12.01.2015 till date requisite photographs have not been produced by learned counsel for the appellant.

Although, learned counsel for the appellant has made a request for deferring the matter but the request is declined.

I have heard learned counsel for the appellant and perused both the impugned judgments.

Learned Court below by the concurring judgment has found that appellant has miserably failed to prove his right, title or interest over the land in

question and it has further noted that it is a clear case of encroachment and an incumbent, who was encroached on public land, cannot be permitted to

carry out mining activities.

Law is trite that normally in second appeal concurrent finding of fact is not to be disturbed unless some substantial question of law is emerging for

determination. Existence of substantial question of law is sine-qua-non for maintainability of second appeal.

In totality, after perusing impugned judgments, in my view, both the Courts below have recorded a concurrent finding of fact on sound appreciation of

evidence. Moreover, there is absolutely no reason to say that the Courts below have misconstrued requisite evidence or eschewed the material

evidence while arriving at its conclusion.

In view thereof, sans any substantial question of law, no interference with the impugned judgments is warranted. Consequently, the appeal fails and

same is hereby rejected.

Stay petition is also dismissed.