[2025:RJ-JP:20429] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 305/2019 Rameshwar Prasad S/o Shri Sohan Lal, Aged About 60 Years, Resident Of Kayampura Bass, Tehsil Kotputli, District Jaipur (Rajasthan) ----Appellant Versus 1. Kailash S/o Baluram, Resident Of Kayampura Bass, Tehsil Kotputli, District Jaipur (Rajasthan) 2. Rajpal S/o Baluram, Resident Of Kayampura Bass, Tehsil Kotputli, District Jaipur (Rajasthan) ----Respondents For Appellant(s) : Mr. Dinesh Kumar Garg, Adv. For Respondent(s) : Mr. Ajay Gupta, Adv. HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment DATE OF JUDGMENT :: 15/05/2025 1. This civil second appeal has been filed by the appellant- plaintiff (for short ‘the plaintiff’) against the judgment and decree dated 26.04.2019 passed by the Additional District Judge No.3, Kotputli, District Jaipur (for short 'the first appellate Court') in civil regular appeal No. 06/2018 (52/2017) whereby the first appellate Court dismissed the appeal filed by the plaintiff and affirmed the judgment and decree dated 07.09.2017 passed by the Civil Judge, Kotputli (for short 'the trial Court') in civil suit No. 83/2012 whereby the trial Court dismissed the plaintiff's suit for mandatory injunction. 2. Brief facts of the case are that the plaintiff filed a suit for mandatory injunction against the respondents-defendants (for [2025:RJ-JP:20429] (2 of 4) [CSA-305/2019] short ‘the defendants’) mentioning therein that plaintiff's house is situated at Kayampura Bas, Tehsil-Kotputli of which patta was issued in the name of the plaintiff's father. After the death of plaintiff's father, plaintiff became the owner of the said plot. There is a 5 ft. common way in the southern side of the plot which was demarcated with red colour in the map. Defendants had closed the said way. Therefore, plaintiff had no way for access. Defendants constructed a kitchen there. So, construction raised by the defendants be removed and injunction be issued that the defendant should not be encroach upon the way. 3. Defendants filed their written statement and denied the averments made in the plaint and stated that disputed land is not a common way. Defendants had raised construction on their own land. Present suit was filed by the plaintiff with malafide intention. So, suit filed by the plaintiff be dismissed. 4. Trial Court had not framed any issue at the time of arguments. Trial Court framed following point for determination. vk;k izdj.k ds rF;ksa ds vk/kkj ij oknh izfroknh ds fo#) fookfnr jkLrs ckcr LFkkbZ fu"ks/kkKk o vkns’kkRed fu"ks/kkKk okni= ds ftEeu ua- 10 ds vuqlkj izkIr djus ds vf/kdkjh gSA 5. To prove his case, plaintiff got himself examined as PW-1 and exhibited certain documents. The defendants also got examined DW-1-Kailash, DW-2-Rajpal and DW-3-Vijay Kumar and exhibited certain documents. 6. After hearing the parties, the trial Court vide judgment and decree dated 07.09.2017, dismissed the suit filed by the plaintiff. [2025:RJ-JP:20429] (3 of 4) [CSA-305/2019] 7. Plaintiff challenged the said judgment and decree dated 07.09.2017 passed by the trial Court by way of an appeal and the first appellate Court vide judgment and decree dated 26.04.2019 dismissed the appeal filed by the plaintiff. 8. Learned counsel for the plaintiff submits that the trial Court as well as the first appellate Court had committed an error in dismissing the suit and the appeal filed by the plaintiff. Both the courts had not appreciated the evidence led by the parties in the right perspective. He also submits that the trial Court had to frame issues but the trial Court had not framed issues and only framed the point for determination. 9. Learned counsel for the plaintiff also submits that trial Court as well as first appellate Court wrongly came to the conclusion that plaintiff's evidence could not be read because he was not present for cross-examination. So, the judgment and decree dated 26.04.2019 passed by the first appellate Court as well as judgment and decree dated 07.09.2017 passed by the trial Court be set aside and the appeal be admitted on the substantial questions of law as mentioned in the memo of appeal. 10. Learned counsel for the defendants has opposed the arguments advanced by counsel for the plaintiff and submitted that ex-parte proceedings initiated against the plaintiff were set aside by the trial Court. After that, trial Court gave ample opportunity for cross-examination of the plaintiff as well as other witnesses but plaintiff failed to present himself as well as other witnesses before the trial Court. Therefore, the trial Court rightly closed the evidence of the plaintiff and rightly came to the conclusion that his evidence could not be read. So, the trial Court [2025:RJ-JP:20429] (4 of 4) [CSA-305/2019] as well as the first appellate Court had not committed any error in dismissing the suit and the appeal filed by the plaintiff. So, the present appeal filed by the plaintiff is devoid of merit. No substantial question of law is made out. So, the appeal be dismissed. 11. I have considered the arguments advanced by counsel for the parties and perused the impugned judgments. 12. It is an admitted position that after setting aside the ex- parte proceedings, trial Court gave numerous opportunity to the plaintiff to led evidence but the plaintiff failed to appear himself before the trial Court. Therefore, the trial Court rightly closed plaintiff's evidence and rightly came to conclusion that his evidence could not be read. Although, issues were not framed but on the basis of pleadings of the parties, the trial Court rightly framed point for determination. So, in my considered opinion, that the point for determination was framed, there was no illegality in not framing the issues. So, the trial Court as well as the first appellate Court had not committed any error in dismissing the suit and the appeal filed by the plaintiff. Therefore, no substantial question of law is made out for admitting the present appeal. So, the present appeal filed by the plaintiff being bereft of merit, is liable to be dismissed, which stands dismissed accordingly. 13. Pending application(s), if any, stand(s) disposed of. (NARENDRA SINGH DHADDHA),J Tahir/75