1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Kheem Singh. vs. State of Rajasthan and others. S.B.CIVIL SECOND APPEAL NO.277/2007 UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 1.6.2007 PASSED BY SHRI MAHENDRA MAHESHWARI, DISTRICT JUDGE, PALI IN CIVIL APPEAL DECREE NO.77/2006. DATE OF JUDGMENT ::: 15.1.2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr.Sajjan Singh, for the appellant. Mr.Moti Singh, for the respondents. - - - - - BY THE COURT: Heard learned counsel for the parties. The appellant/plaintiff's suit was dismissed by the trial court vide judgment and decree dated 13.11.2006 and the appeal against said judgment and 2 decree was dismissed by the first appellate court vide judgment and decree dated 1.6.2007. Hence, this second appeal. The plaintiff filed mere suit for injunction on the basis of the allegation that he was in possession of the land in question since last 40-50 years. However, in the plaint itself, the plaintiff stated that the land in question has already been given to one Beej Bhandar and, therefore, the respondents – State Government and Tehsildar had no jurisdiction to evict the plaintiff from the land in question. Two courts below concurrently on the basis of evidence held that the plaintiff failed to prove his settled possession over the land in dispute in view of the evidence placed on record. Learned counsel for the plaintiff/appellant submitted that the land, since it was in possession of the appellant, therefore, it could not have been given to Beej Bhandar. Therefore, there was no necessity for seeking relief of declaration and mere relief of injunction was prayed. According to learned counsel for the appellant, the first appellate court committed serious error of law in observing that the plaintiff has not claimed relief of declaration and, therefore, 3 he is not entitled to relief of injunction. I considered the submissions of learned counsel for the appellant and perused the reasons given by the two courts below in the impugned judgments as well as the record particularly, the plaintiff's plaint and his statement. In the plaint, the plaintiff/appellant himself admitted that he is not owner of the property and he admitted that the land belongs to Beej Bhandar. The plaintiff has not challenged the title but rather has admitted it. The plaintiff has not challenged the order of allotment in favour of Beej Bhandar, yet the plaintiff submits that the land in question should have been regularised in his favour. Assuming for the sake of arguments that the plaintiff could have challenged the order of allotment made in favour of Beej Bhandar on the basis of his possession, then also, the plaintiff has not challenged said order on this ground also. Without there being any pleading and challenge to the order of allotment in favour of Beej Bhandar, the trial court could not have examined the validity and legality of allotment made in favour of Beej Bhandar which is admitted fact. So far as possession of the plaintiff is 4 concerned, the plaintiff in cross examination clearly stated that his possession is not recorded anywhere and learned counsel for the appellant very frankly admitted that there is no documentary proof of possession of the appellant/plaintiff. However, he relied upon the statements of the witnesses in this regard. Then it is a case of appreciation of evidence only and when the two courts below concurrently held that the plaintiff is not in possession of the land in question, then the scope of second appeal does not permit this Court to re-appreciate the evidence and that too oral evidence. In view of the above, I do not find any substantial question of law involved in this appeal. Consequently, this second appeal, having no merits, is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya