[2025:RJ-JP:19622] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 294/2012 Sedu Ram S/o Balu Ram, Ward No.6, Gopalji Ka Mohalla, Neem Ka Thana, Distt. Sikar ----Appellant Versus 1. Ramjilal S/o Patram (Deceased) (Suit Was Abated) 2. 2/1. 2/2. 2/3. 2/4. 2/5. 2/6. 2/7. 2/8. 2/9. 2/10. Tara Chand S/o Pat Ram (Deceased) Represented Through Following Legal Representatives:- Geeta Devi, W/o Tara Chand Shiv Kumar Bajranglal, Sons of Pat Ram Sushila Durga Devi Devi Santosh @ Guddi Sulochna Bansali Parwati All daughters of late Tara Chand 3. Hukam Chand S/o Pat Ram Ward No.6, Gopalji Ka Mohalla, Neem Ka Thana, Distt. Sikar ----Respondents For Appellant(s) : Mr. Tanmay Dhand, Adv. For Respondent(s) : Mr. Gaurav Gupta, Adv. HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Order 09/05/2025 This civil second appeal has been filed by the appellant- plaintiff (for short ‘the plaintiff’) against the judgment and decree dated 14.03.2012 passed by the Additional District Judge, Neem Ka Thana, District Sikar in Civil Appeal No.18/2006, whereby the appellate Court dismissed the appeal filed by the plaintiff and confirmed the judgment and decree dated 08.05.2006 passed by [2025:RJ-JP:19622] (2 of 4) [CSA-294/2012] the Civil Judge (Junior Division), Neem Ka Thana, District Sikar in Civil Suit No.4/97 whereby the trial Court dismissed the suit filed by the plaintiff. Brief facts of the case are that the appellant filed a suit for declaration, permanent injunction and demolishing the construction against the respondents-defendants (for short ‘the defendants’) in which it was stated that plaintiff was residing at Ward No.6, Neem Ka Thana, District Sikar. In the land of eastern side of the house, there was a 33 ft. wide common chowk and way, which was being used by plaintiff from the time of his forefathers. He further submitted that defendants wanted to encroach on the said land, they had raised construction of a room and chabutra on the said land, so suit filed by the plaintiff be decreed. The defendants filed a written statement and denied the averments of the plaint and submitted that the said land was not a public land and they had constructed a room in the year 1993. On the basis of pleadings of the parties, the trial Court framed the following issues:- 1- D;k oknh }kjk izfroknhx.k ds edkuksa ds e/; lnSo ls 33 QqV pkSM+k vke pkSd o jkLrs dh Hkwfe gS ftldk mi;ksx oknh dj jgk gS\ &&oknh 2- D;k izfroknh us fookfnr jkLrs ij vfrØe.k dj fuekZ.k dk;Z dj fy;k gS\ &&oknh 3- D;k izfroknhx.k dh cSBd] pcwrjk mudh iV~Vk’kqnk Hkwfe esa gh cus gq, gS dksbZ lkoZtfud pkSd o jkLrs dh Hkwfe esa ugha gS\ &&izfroknhx.k 4- vuqrks"k\ [2025:RJ-JP:19622] (3 of 4) [CSA-294/2012] To prove its case, plaintiff examined himself as PW1-Sedu Ram and PW2-Narendra Chaturvedi. To prove its case, defendant examined himself as DW1-Tara Chand. After hearing the parties the trial court vide its judgment dated 08.05.2006 dismissed the suit filed by the plaintiff. The plaintiff had preferred an appeal against the impugned judgment dated 08.05.2006 and appellate court vide judgment and decree dated 14.03.2012 dismissed the appeal filed by the plaintiff. Learned counsel for the plaintiff submits that trial court as well as appellate court had committed an error in dismissing the suit as well as appeal filed by the plaintiff. He further submits that plaintiff filed an application under Order 41 Rule 27 CPC on 28.02.2009. The appellate court while deciding the appeal had not decided the application under Order 41 Rule 27 CPC filed by him, so order of the appellate court is required to be set aside and matter be remanded to the appellate court to decide the appeal afresh along with the application under Order 41 Rule 27 CPC filed by the plaintiff. Learned counsel for the defendants has opposed the arguments advanced by learned counsel for the plaintiff and submitted that appellate court had not decided the application under Order 41 Rule 27 CPC filed by the plaintiff, so if appeal is remanded to the appellate court for deciding afresh, then direction be given to the trial court to decide the appeal within three months from the date of receipt of certified copy of the judgment. I have considered the arguments advanced by learned counsel for the plaintiff as well as counsel for the defendants. [2025:RJ-JP:19622] (4 of 4) [CSA-294/2012] It is an admitted position that plaintiff filed an application under Order 41 Rule 27 CPC before the appellate court on 28.02.2009. A perusal of the judgment dated 14.03.2012 passed by the appellate court reveals that appellate court had not decided the application under Order 41 Rule 27 CPC while deciding the appeal. So, in my considered opinion, judgment dated 14.03.2012 passed by the appellate court deserves to be set aside with a direction to the appellate court to decide the appeal afresh and simultaneously the application under Order 41 Rule 27 CPC filed by the plaintiff. So, the appeal filed by the plaintiff deserves to be allowed. Accordingly, the appeal filed by the plaintiff is allowed. The judgment dated 14.03.2012 passed by the appellate court is set aside. The appellate court is directed to decide the appeal afresh along with the application under Order 41 Rule 27 CPC filed by the plaintiff as early as possible and preferably within three months from the date of receipt of a certified copy of this order. Both the parties are directed to appear before the appellate court on 26.05.2025. Pending application(s), if any, stand, disposed of. (NARENDRA SINGH DHADDHA),J AVINASH GULERIA /47