[2025:RJ-JP:41789] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 180/1999 1. Smt. Heera Devi W/o Shri Durga Lal (since deceased) 1/1. Shri Durga Lal S/o Late Shri Chandalal (Deleted), 1/2. Ram Singh S/o Shri Durga Lal, Aged About 75 Years 1/3. Ram Narain S/o Shri Durga Lal, Aged About 72 Years 1/4. Hemraj S/o Shri Durga Lal, Aged About 63 Years 1/5. Laxman Singh S/o Shri Durga Lal, Aged About 60 Years 1/6. Chetan Prakash S/o Shri Durga Lal, Aged About 56 Years All Resident Of Mandram Pura, Tehsil Sanganer, District Jaipur (Rajasthan). 1/7. Smt. Meera Devi D/o Shri Durga Lal, W/o Shri Ramswaroop, aged about 65 years, R/o Kumawat Colony, Jhotwara, Jaipur ---Appellants Versus 1. Gandilal S/o Shri Chandalal (since deceased) 1/1. Goverdhan Lal S/o Late Gendalal, aged about 67 years 1/2. Harinarayan S/o Late Gendalal, Aged About 64 Years, 1.3. Hari Shankar S/o Late Gendalal (Since Deceased), 1.3.1. Anita Devi W/o Late Hari Shankar, Aged About 58 Years, 1.3.2. Ashish Kumawat S/o Late Hari Shankar, Aged About 35 Years 1.3.3. Akhil Kumawat S/o Late Hari Shankar, Aged About 31 Years 1.4 Hariram S/o late Gendalal (since deceased) 1.4.1 1.4.2 Manju W/o Hariram Rohit Kumawat S/o Late Hariram, 1.4.3 1.4.4 1.5 1.6 1.7 Ravi Kumawat S/o Late Hariram Rohan Kumawat S/o Late Hariram, Om Prakash S/o Late Gendalal, Hansraj Kumawat S/o Late Gendalal Chandrashekhar S/o Late Gendalal All R/o 27, 28, 29 Satya Vihar Colony, Lal Kothi, Jaipur. [2025:RJ-JP:41789] (2 of 17) [CSA-180/1999] 1.8 Smt. Beena W/o Narendra Kumar, R/o 26A, Nanak Vihar, Sewage Farm, Sodala, Jaipur. ----Plaintiff/Respondents For Appellant(s) : Mr. Saket Pareek Mr. Aditya Pareek For Respondent(s) : Mr. Mohd. Adil Mr. Gaurav Kumawat HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 02/07/2025 1. Instant S.B. Civil Second Appeal is preferred by the appellant-defendant Heera Devi (since deceased) aggrieved from dismissal of Civil Regular Appeal No.384/1998 (4/1999) and allowing cross-objection in Appeal No.5/1999 on 04.03.1999 by learned Additional District Judge No.1, Jaipur City, Jaipur which were filed aggrieved from judgment and decree dated 26.08.1998 in Civil Suit No.9/1996 passed by learned Additional Civil Judge (SD) No.5, Jaipur City, Jaipur in a suit titled as Gandi Lal Vs. Sushma Goyal and another. 2. During pendency of this appeal appellant Heera Devi and respondent-plaintiff Gandi Lal have expired and their legal heirs were brought on record. Two more legal heirs of two deceased legal heirs of defendant Gandi Lal were also taken on record. 3. Appellant has filed an application Order 41 Rule 27 of CPC for taking on record additional documents and we are disposing the application, with present order. 4. The learned counsel for the appellants has submitted that the plaintiff Gandilal has filed a civil suit for permanent injunction with false averment that the plaintiff is doing business of cement [2025:RJ-JP:41789] (3 of 17) [CSA-180/1999] articles in the name of M/s. Dewatwal & Company on some part of joint agricultural land bearing Khasra No. 292 situated behind Lalkothi, Jaipur and said business is managed by him as sole proprietorship firm since 1965. He further submitted that as per details mentioned in Para No. 1 of plaint, the suit property is existing and is in clear possession of plaintiff. He also submitted that the plaintiff has also mentioned a fact that the land in question was acquired under the Land Acquisition Act by award of 1964 but the plaintiff and his brothers have neither obtained compensation nor dispossessed from the land. He also submitted that on the basis of apprehension from the defendant through her son about alleged threat of dispossession, a suit for simple injunction is filed. He further submitted that the defendant No. 2 has filed a written statement stating that the agricultural land in question was sold by agreement to sell dated 25-01-1981 by Khatedars and possession has been handed over to Jai Chamunda Grah Nirman Sahkari Samiti Ltd., Jaipur. He also referred the written statement and submitted that the defendant has clearly denied the title and possession of the plantiff. He further submitted that the Society has drawn a scheme and a plot No. 17, Satya Vihar Colony, Lal Kothi, Jaipur, was allocated to Sushma Goyal on 09-02-1981 and defendant (present appellant) has purchased the plot from Sushma Goyal on 24-04-1990 and after purchase constructed a boundary wall to fortify her possession. 5. Learned counsel for appellant further submitted that a serious cloud has been raised upon the title of the plaintiff, but despite this, the plaint has neither been amended nor a declaratory relief was sought about the ownership of the land. He [2025:RJ-JP:41789] (4 of 17) [CSA-180/1999] further referred the evidence on record and submitted that the trial Court has partially decreed the suit with protection to the plaintiff for not dispossessing except in accordance with law. He further submitted that the defendant-appellant has preferred an appeal before the First Appellate Court, which was transferred to learned Additional District Judge No. 1, Jaipur City, Jaipur, wherein a cross objection has been filed by the plaintiff, and both were decided together on 04-03-1999. He also submitted that the Appellate Court has dismissed the appeal preferred by the defendant-appellant but allowed the cross objection and amended the decree and issued absolute injunction on suit property 110x40 ft. 6. He submitted that without any relief of declaration, the Appellate Court has recorded finding upon the title of the plaintiff and decided title in favour of the plaintiff. He further submitted that additional documents were filed under Order 41 Rule 27 of CPC to bring correct fact on the record and these documents are relevant for just decision of the case. He also submitted that where a cloud is raised upon the title of any person, then except the suit of declaration, no other relief can be claimed. He further placed reliance upon judgment in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By LRs and Others : (2008) 4 SCC 594, Jharkhand State Housing Board Vs. Didar Singh and Another : (2019) 17 SCC 692, T.V. Ramakrishna Reddy Vs. M. Mallappa and Another : (2021) 13 SCC 135 and Prataprai N. Kothari Vs. John Braganza : (1999) 4 SCC 403 and submitted that the findings recorded by the First Appellate Court are not only contrary to record but also to settled legal [2025:RJ-JP:41789] (5 of 17) [CSA-180/1999] position. He also submitted that the Appellate Court has granted absolute injunction with finding on title and the same is contrary to settled proposition of law where the title of the plaintiff is in dispute. He also placed reliance upon written submission submitted by him and submitted that the documents submitted along with application under Order 41, Rule 27 of CPC requires consideration for just decision of the case. 7. Aforesaid contentions were opposed by learned counsel appearing on behalf of the respondent-plaintiff and he submitted that the only substantial question of law for determination before this Hon’ble Court is : Whether the title of a party can finally be decided by the trial Court while granting a decree of injunction? He submitted that certain facts are admitted and after admission of such facts, there is no need to prove said facts. He further submitted that as per admission of the appellant-defendant, plaintiff and his brothers were joint recorded tenants of land bearing Khasra No. 292, which is sufficient to show that title and possession over the land belongs to respondent-plaintiff. He further submitted that on date of filing of civil suit, the possession was with respondent-plaintiff and same is never questioned by any of the parties. He further submitted that plaintiff has filed a suit for injunction and same is maintainable without declaration as the declaratory title is not required in the instant case. He further referred Para No. 10 of the judgment of the trial Court and submitted that since 1965, there was a unit of cement articles and nothing has come on record to show that after taking over the land by Society, cement article unit was removed. He further submitted that the deliberation and discussion by trial Court is [2025:RJ-JP:41789] (6 of 17) [CSA-180/1999] sufficient to show that even the Society has not paid entire sale consideration as there is no evidence to this effect. 8. He further submitted that nothing has come on record to show that Sushma Goyal has taken over possession from the Society. He also submitted that the evidence on record clearly indicate that the Society has never taken possession of the disputed land and without possession, Society cannot hand over the possession to Sushma Goyal. He also submitted that if Sushma Goyal is not having possession, then she cannot hand over the possession to appellant-defendant. He also submitted that the judgment of Appellate Court is based on facts and it has not decided the issue of title. He further submitted that in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By LRs and Others (supra), Hon’ble Supreme Court has decided that if the pleadings and the facts clearly point out about the title, then the court may decide the title even in case of injunction. He further referred judgment in case of Chandrakant Babanrao Bidkar and Another Vs. Miss Kavita Omprakash Mundada and Others : 2017 SCC OnLine Bom 5443 and submitted that in a case simplicitor for injunction, the title of plaintiff cannot be said to be disputed when a cloud raised is based on unregistered agreement to sell. He further submitted that there is no need or necessity for plaintiff to file a suit for declaration as the title of present plaintiff is well clear. He also submitted that no counterclaim whatsoever is filed by the defendant and even no objection was raised about the court fee or jurisdiction. Therefore, the appellant-defendant has no right to raise any objection. [2025:RJ-JP:41789] (7 of 17) [CSA-180/1999] 9. Learned counsel for the respondent- plaintiff has further submitted that the defendant has placed on record certain documents in an application under Order 41, Rule 27 of CPC and same are neither necessary nor required for adjudication. He also submitted that the documents for additional evidence submitted by the appellant-defendant are not important documents for adjudication of current dispute. At last, he referred judgment in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others : (1999) 3 SCC 722 and Nazir Mohamed Vs. J. Kamala and others : (2020) 19 SCC 57 and submitted that this Hon’ble Court cannot interfere on factual aspects, which are required to be considered and decided by the trial Court and the First Appellate Court. 10. Heard learned counsel for the parties and perused the entire record, along with written submissions of both the parties and the judgments as referred during course of arguments and also mentioned in the written submissions. 11. For sake of brevity, we are not referring a specific judgment with specific ratio and also the paragraphs mentioned in written submissions, but we have gone through whatever has been placed on record and submitted by the counsels. 12. The brief facts of the case are that the plaintiff Gandilal filed a civil suit for permanent injunction against Sushma Goyal and Heera Devi. During pendency of the civil suit, name of Sushma Goyal as defendant was deleted on 06-05-1991. The plaintiff has claimed that suit property bearing part of Khatra No. 292 having possession since 1965, wherein he is doing business relating to cement articles. The plaintiff threatened by defendant Heera Devi [2025:RJ-JP:41789] (8 of 17) [CSA-180/1999] and her sons, so filed a civil suit on the ground that defendant Heera Devi has purchased a plot No. 17 area 365 square yard on 29.04.1990 from Sushma Goyal and Sushma Goyal was allotted a plot by a Society who allegedly purchased some land. The plaintiff has further mentioned that the land in question was acquired and in 1964, an award was passed but neither compensation was paid nor possession was taken. The plaintiff has sought permanent injunction for protection of his possession on basis of title of the plaintiff. 13. Defendant has filed a written statement denying the claim of plaintiff but admitted that the land in question is part of Khasra No. 292 and belongs to plaintiff and other relatives, which was sold on 25.01.1981 to Jai Chamunda Grah Nirman Sahkari Samiti Ltd., Jaipur and after preparing a scheme, a Plot No. 17, Satya Vihar Colony, was allotted to Sushma Goyal and she was handed over the possession by the Society. The defendant has purchased the property from Sushma Goyal and after purchase she has constructed boundary wall with barbed wires. The defendant has denied the possession of the plaintiff and rather claimed her possession over the property. 14. On the basis of the pleadings of the party, the trial Court has framed as many as 8 issues. The plaintiff has examined 6 witnesses and exhibited 27 documents, whereas defendant has examined 4 witnesses and exhibited 29 documents. The trial Court has decided issue No. 1 in favour of plaintiff whereas decided issue Nos. 4 and 5 partially in favour of the plaintiff and issue Nos. 6 and 7 in favour of the plaintiff. Issue no. 2 and 3 were deleted. Ultimately, the trial Court has partially decreed the suit in favour [2025:RJ-JP:41789] (9 of 17) [CSA-180/1999] of the plaintiff and restrained the defendant from dispossessing the plaintiff from the suit property without adopting the due process of law. 15. Aggrieved defendant has preferred an appeal under section 96 of CPC which has been transferred to learned Additional District Judge No. 1, Jaipur City, Jaipur. A cross objection is also filed by the plaintiff and both were decided on 04-03-1999. The appeal preferred by the defendant was dismissed but cross objections were allowed and the decree was amended and a full-fledged permanent injunction decree was passed in favour of plaintiff. 16. Aggrieved defendant has preferred the second appeal before this court. While admitting the second appeal on 05-12-2002, following substantial question of law was framed by this Court:- “As to whether the tittle of a party can finally be decided by the trial Court while granting a decree of injunction?” 17. Admittedly, the plaintiff has filed a simple suit for injunction claiming that the land in question (Khasra No. 292) was acquired, but neither compensation was paid nor possession was taken. The plaintiff, apprehensive of a patta of land measuring 365 sq. yards given to Sushma Goyal by any Society and sold to defendant, has filed a suit for injunction only on the basis of threat and apprehension from defendant who is also a close relative of plaintiff. Defendant Heera Devi has admitted Khatedari land of plaintiff and other family members. The defendant has also admitted acquisition of land but pleaded that the land is sold to a Society which framed a scheme and Plot No. 17 (disputed property) was allotted to Sushma Goyal who sold and handed over [2025:RJ-JP:41789] (10 of 17) [CSA-180/1999] the possession to the defendant and defendant is in the possession. 18. Aforesaid mentioned fact indicated that the defendant has not admitted possession of the plaintiff rather defendant has stated that the land Khasra No. 292 is sold to Jai Chamunda Grah Nirman Sahkari Samiti Ltd., Jaipur and possession has been handed over to the Society. 19. The trial Court has drawn a conclusion that the land in question was acquired but neither compensation has been granted nor possession has been taken. The trial Court has referred one agreement to sell Ex. A-16 and also judgment Ex.-21. The trial Court has also referred Ex.A-2 to Ex. A-5 to draw a conclusion that Satya Vihar Colony was developed and from Ex.A-16 drawn a conclusion that land of Khasra No. 292 is part of Satya Vihar Colony. The trial Court has also considered land allotted to Sushma Goyal and sold to Heera Devi. The trial Court has also drawn a conclusion on the basis of signature of plaintiff (Ex.A-16), about agreement to sell of disputed land when it was part of Khasra No. 292. The trial Court has drawn a conclusion that the land bearing Khasra No. 292 is already sold to Society for development of a colony but the trial Court has found that the plaintiff is in possession and his possession can only be disturbed after adopting due process. 20. When an appeal is preferred by the defendant, then the defendant has raised an issue about illegal encroachment by the plaintiff and also that the plaintiff who is not having a legal possession, is not entitled for injunction. The plaintiff has also filed objections as he is dissatisfied from the decree. The Appellate [2025:RJ-JP:41789] (11 of 17) [CSA-180/1999] Court in Para No.11 has drawn a conclusion on the basis of preponderance of probability that Jai Chamunda Grah Nirman Sahkari Samiti Ltd., Jaipur has developed Satya Vihar Colony on Khasra No.292 but in Para No.12 considered Ex. A-16 and observed that it is not established that the entire sale consideration is paid. The Appellate Court has further observed that the agreement to sell is not sufficient to draw a conclusion that the ownership has been transferred to Jai Chamunda Grah Nirman Sahkari Samiti Ltd., Jaipur. In Para No.13, the Appellate Court has observed that an agreement to sale is rightly exhibited as secondary evidence. In Paragraph Nos.14, 15, and 16, drawn a conclusion that the evidence of defendant is against the pleadings, so same cannot be read in favor of the defendant. Similarly, in Paragraph No.17, while referring Ex. A-5, a compromise, observed that the statement of defendant is not proved. 21. While observing about possession in second Para 17, at page No. 9 and 10 of the judgment, the appellate court has observed that the trial Court has committed error while drawing a conclusion that the property in question is transferred to defendant. The appellate court has further observed that the defendant has not able to establish transfer of land to Jai Chamunda Society, and still is in title and possession of plaintiff. The plaintiff cannot be treated as encroacher. 22. Here, in this case, the plaintiff has filed a plaint with the averment that the plaintiff is in possession on a part of the land of Khasra No. 292 since 1965, where he is running a business of cement articles. The plaintiff has also claimed that he has not sold the land to the Society and also not handed over the possession to [2025:RJ-JP:41789] (12 of 17) [CSA-180/1999] the Society. The defendant, who is also a close relative of plaintiff, has appeared in witness box and she has clearly stated that the land in question is sold to Jai Chamunda Housing Society. The trial Court has referred Agreement Ex. A16, wherein plaintiff has put in his signature. The case of the plaintiff indicate that the land is part of Khasra No. 292 and Damodar, Durga Lal, Gandi Lal and Devi Lal are recorded Khatedars of Khasra No. 292. PW1 Gandilal, DW1 Heera Devi wife of Durga Lal and PW4 Devi Lal were examined about the status of land and we have gone through the record of the case, in particular, evidence of these individuals. 23. In case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others (supra) and Nazir Mohamed Vs. J. Kamala and others (supra), Hon’ble Supreme Court, while considering the scope of second appeal, has laid down that the High Court should restrict itself to the substantial question of law and should refrain from the factual issue which has been dealt and decided by the trial Court and the First Appellate Court. We agree that except the substantial question of law, the Court should not interfere and open the factual issues. 24. The judgment of the Appellate Court clearly indicates that the Appellate Court has not only dealt Ex.A-16, which is the basis of development of the Satya Vihar Colony, but also observed and accepted that a Colony has been developed by Jai Chamunda Grah Nirman Sahkari Samiti Ltd., Jaipur and i.e. real status of land, accepted by the Appellate Court but it has drawn a conclusion about the title of Ex.A-16. The issue pertains to a simple injunction based on facts as mentioned by the plaintiff but the Appellate Court has not only made discussion about unnecessary [2025:RJ-JP:41789] (13 of 17) [CSA-180/1999] issues but also travelled to certain issues which were not part of the pleadings of the plaintiff. The plaintiff in his plaint has admitted certain facts upto the extent that a Society has developed a Satya Vihar Colony and issued a Patta in the name of Sushma Goyal, who allegedly sold the plot No. 17 to the defendant. Since the plaintiff has brought the suit, therefore, the burden is upon the plaintiff to bring clear facts but if the plaintiff has failed to bring clear facts, then the action of plaintiff must fail. When the plaintiff has filed a suit for injunction and an injunction is granted by the trial Court, then the Appellate Court is required to consider the objection up to the extent that whether the plaintiff was entitled for absolute injunction or only till dispossession by adopting due process. 25. Here, in this case, instead of deciding the objection in the right perspective, the appellate court has travelled beyond the scope and drawn a conclusion about the title of the entire land, which was not the subject matter. The Appellate Court has observed about the title of entire Khasra No. 292 which was passed on by Khatedars, by way of agreement to sell Ex.A-16. None of the parties have raised any objection about Ex.A-16 or non-payment of part sale consideration by the Society. But still, Appellate Court has drawn a conclusion which was neither relevant nor part of the pleading, and only on this basis, the Appellate Court has accepted cross-objection preferred by plaintiff. 26. Scope of Section 96 of CPC is well explained and it is necessary that the First Appellate Court should consider the fact and also the legal issues raised by the parties on the basis of pleading and the evidence, but not beyond that. [2025:RJ-JP:41789] (14 of 17) [CSA-180/1999] 27. The appellant-defendant has filed an application under Order 41, Rule 27 CPC for taking certain documentary evidence on record. The documents attached with the application are obtained from Jaipur Development Authority, Jaipur about Plot No. 17, Satya Vihar Colony, Lal Kothi, Jaipur. These documents were executed by Gandi Lal (original plaintiff). The documents indicate that Gandi Lal has filed an application for issuance of lease deed in respect of Plot No. 17 (area 488.88 sq. yards) in the scheme of Jai Chamunda Grah Nirman Sahkari Samiti Ltd., Jaipur, known as Satya Vihar scheme after regularization and allotment. The copy of receipt also indicate that ₹ 80170/- and ₹ 383042/- were deposited for regularization. 28. The appellant-defendant has mentioned that on 15.10.2007 they came to know about submission of some papers by Gandi Lal to the Jaipur Government Authority for issuance of Patta about suit property and same filed as annexures A-1 to A-5. The trial Court has decided civil suit on 26.08.1998 and the Appellant Court decided appeal on 04.03.1999 and present appeal was admitted on substantial question of law on 05.12.2002. The dispute pertains to plot no. 17, Satya Vihar Colony and these documents indicate that on 16.10.2007, Lakshman Singh son of Durga Lal, who is one of the appellants, has procured these documents from JDA, which were submitted to JDA in year 2005. These documents clearly indicate that plot No. 17, Satya Vihar is part of Jai Chamunda Grah Nirman Sahkari Samiti Ltd., Jaipur and Gandi Lal (plaintiff), as possession holder has sought lease deed of the land after regularization. [2025:RJ-JP:41789] (15 of 17) [CSA-180/1999] 29. Considering the judgment of Appellate Court which travelled beyond the scope of the appeal and decided unnecessary issues relating to title and transfer of the land to Jai Chamunda Grah Nirman Sahkari Samiti Ltd., Jaipur whereas plaintiff has filed suit on the basis of possession on his Khatedari land. Now the latest document reveals that the Plaintiff, claiming to be possession holder of plot No.17, Satya Vihar Colony, has sought lease deed from JDA. These documents supports the case of defendant so they are relevant documents. 30. Considering aforesaid and also the principle of law as laid down in the case as referred by the learned counsels for the parties, I am of consider to view that it is a fit case wherein the documents required to be taken on record, as these documents are necessary to show admission of plaintiff (since deceased) and may impact the strength and case of plaintiff. Therefore, without expressing any opinion on merits about these documents, I am of consider to view that the application under Order 41, Rule 27 CPC is liable to be allowed. Since the judgment of the First Appellate Court suffers from material contradictions and is beyond the scope the litigation, therefore, same may be set aside and matter may be remitted back for fresh consideration with certain directions. 31. It is apparent on record that unnecessary finding on title was given by the First Appellate Court, though, same is neither warranted nor required and also there are contradictory findings in the judgment by the Appellate Court. Moreover, by additional documents the plaintiff has admitted scheme developed by Jai Chamunda Grah Nirman Sahkari Samiti Ltd., Jaipur and claimed patta (lease deed) in the Scheme. Therefore, the substantial [2025:RJ-JP:41789] (16 of 17) [CSA-180/1999] question of law is answered partially in favour of the appellant- defendant. 31. As a result, the instant second appeal is allowed and the judgment dated 04-03-1999 in Regular Appeal No. 384/1998 (4/1999) and Cross Objection No. 5/1999 passed by the learned Additional District Judge No. 1, Jaipur City, Jaipur is hereby set aside and Application under Order 41 Rule 27 CPC is also allowed, the documents submitted by appellant-defendant are taken on record. The matter is remitted back to the First Appellate Court with following directions :- I. The First Appellate Court shall re-register Civil Regular Appeal No. 384/1998 (4/1999) and Cross Objection No. 5/1999 and proceed to decide in accordance with law after giving opportunity of hearing to both the parties. II. After taking on record the additional documents (filed under Order 41 Rule 27 CPC), the Appellate Court will record fresh evidence up to the extent of these documents, if the parties willing to submit on record, but if the defendant has filed the evidence, then proper chance of rebuttal be given to the plaintiff. III. After recording the evidence, the First Appellate Court shall decide the civil regular appeal and cross objection without being influenced from earlier judgment dated 04-03- 1999. IV. It is made clear that we have not made any observation on merits of the case but if any incidental observation is made, the same shall be ignored by the First Appellate Court. [2025:RJ-JP:41789] (17 of 17) [CSA-180/1999] 32. With the aforesaid the instant second appeal and the miscellaneous application, if any, stands disposed. (ASHOK KUMAR JAIN),J MR/86