1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL SECOND APPEAL NO.881/2011 Chairman, Municipal Board, Jetaran & Anr.
versus Takhatraj & ORS.Date of Judgment :: 28.10.2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.D.S.Rajvi, for the appellants.
Mr.Arvind Samdariya, for the respondents.
---- BY THE COURT: This second appeal under Section 100 CPC is directed against the judgment and decree dated 01.09.2011 passed by Additional District Judge (Fast Track) No.1, Pali, Headquarter- Jetaran, whereby, the judgment and decree dated 04.12.2006 passed by Civil Judge (Senior Division).Jetaran, has been confirmed.
The facts in brief may be noticed thus:- the plaintiffs- respondents filed a suit for permanent injunction on 24.07.1985, inter alia, with the averments that a Upasara belonging to the Tapegach Jain Samaj is situated at Jetaran, wherein, Sampat Raj Mathur was in possession of a Bagechi of said Upasara; the suit was being filed in representative capacity; the Patta of Samvat Year 1918 was given by the then Maharaja of Jodhpur Takhat Singh; whereafter, in Samvat Year 1938 Patta of another land nearby was issued by the then Maharaja Jaswant Singh of 2 Jodhpur; the area of land was 2 bigha and was in possession of the Samaj for over 100 yeaRs.the disputed Bagechi was let out by Chiefs of the Samaj Anraj and Girdharilal in Samvat Year 1998 to Jugraj Khariwal and Nathmal for yearly rent of Rs.15/-; whereafter, in Samvat Year 2008, the Bagechi was let out to Ganeshmal and Sohanlal and new rent-note was executed in Samvat Year 2030, after death of Ganeshmal; Sampatraj executed a fresh rent-note on 15.01.1983 and was operating a Petrol Pump; Tehsildar, Jetaran instituted proceedings under Section 91 of the Land Revenue Act again the plaintiff’s tenant Ganeshmal in 1955-56, which was rejected by Tehsildar, Jetaran on 09.04.1957; the disputed land was recorded in the Revenue Records as KhaSr.No.291 to 294; Tehsildar, Jetaran again registered Case under Section 91 of the Land Revenue Act on 15.05.1985, which was dismissed on 19.06.1985; Assistant Director, Land & Building Tax Department, Pali by his order dated 20.09.1979 decided that the disputed property was not liable to payment of Land And Building Tax; the defendants were attempting to dispossess the plaintiffs by claiming the land as Government Land and were attempting to trespass over the same for the purpose of auction and allotment, it was prayed that permanent injunction be issued against the defendants from auctioning or allotting the suit property to anyone and not to interfere in the physical possession of the plaintiffs.
A written statement was filed by the defendants, the existence of Bagechi was denied; the right of plaintiffs to file the suit was questioned.
It was claimed that plaintiffs have not 3 complied with provisions of Order I, Rule 8 CPC; it was claimed that the Bagechi was public and was property of the Municipal Board; the Patta does not pertain to the said land and the boundaries of the Patta does not match with the suit land; the Petrol Pump of Sampatraj was outside the Bagechi, which was divided by a wall; the land of KhaSr.No.293 and 292 has been transferred to the Municipal Board, proceedings under Section 91 of the Land Revenue Act was initiated against Sampatraj and vide Mutation No.928/1985, the land has been recorded in the name of the Municipal Board, Jetaran; the Municipal Board has removed the possession of Sampatraj on 25.06.1985 and has taken possession of land in question; whereafter, on 03.03.1986, Sampatraj sought permission for utilizing the land in KhaSr.No.291 and 294, which was granted and the keys were handed over on 20.03.1986, therefore, there is no question of dispossessing the plaintiffs; plaintiffs were not in possession; additional pleas were raised that the land belonged to the State Government and same has been transferred to the defendants and the State Government was a necessary party; the plaintiffs were neither having title nor possession and, therefore, the suit for permanent injunction was not maintainable without seeking possession.
The trial court framed as many as ten issues.
On behalf of the plaintiffs, three witnesses were examined eight documents were exhibited.
On behalf of the defendants, two witnesses were examined and three documents were exhibited.
After hearing the parties, the trial court came to the 4 conclusion that the disputed Bagechi was Patta Sud and of the ownership of the plaintiffs and defendants were neither in possession nor control of the same; provisions of Order I, Rule 8 CPC had been properly complied with; it was held in S.B.Civil Revision Petition No.333/1988 filed by the Municipal Board by the High Court that disputed land was suited in Aabadi of the Town of Jetaran and the suit was maintainable in civil court; the State Government was not a necessary party; it was not necessary for the plaintiffs to seek declaration as they were in possession of the suit property and based on its findings on various issues passed decree restraining the defendants from dispossessing the plaintiffs and not to interfere in their possession.
Feeling aggrieved, the appellants filed fiRs.appeal under 96 CPC.
The fiRs.appellate court after hearing the parties, confirmed the findings recorded by the trial court on all the issues and dismissed the appeal.
It is submitted by learned counsel for the appellants that provisions under Order I, Rule 8 CPC were not complied with by the plaintiffs; the suit land being agricultural, the civil court had no jurisdiction to entertain the suit; State Government was a necessary party; mere suit for injunction was not maintainable and in absence of relief for declaration and possession, the suit was liable to be dismissed; the plaintiffs filed to prove their title and possession of the suit property and, therefore, also the suit was liable to be dismissed.
It was further contended that it was 5 not proved that the Patta in question relate to the suit land and that the plaintiffs were in possession and, therefore, the above aspects give rise to substantial questions of law.
Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the appellants.
It was submitted that provisions of Order I, Rule 8 CPC were meticulously complied with; the defendants had filed application under Order VII, Rule 11 CPC challenging the jurisdiction of the civil court, which application was rejected by the trial court, S.B.Civil Revision Petition No.333/1988 was filed by the defendants, wherein by judgment dated 09.03.1989 while dismissing the revision petition, the order passed by the trial court was upheld and, therefore, now it is not open for the appellants to reagitate the said issue.
Both the courts have concurrently found in favour of the plaintiffs regarding the title and possession of the suit property and no substantial question of law arise for consideration in this appeal and the appeal deserves to be dismissed.
I have considered the rival submissions made by learned counsel for the parties and have perused the record of both the courts below.
A perusal of the record reveals that an application under Order I, Rule 8 CPC was filed alongwith the plaint and the trial court by its order dated 26.08.1985 directed issuance of notice under Order I, Rule 8 CPC and noted its compliance on 30.03.1989.
As such the plea regarding non-compliance of provisions of Order I, Rule 8 CPC has apparently no foundation.
6 The plea raised regarding the jurisdiction of the civil court being barred cannot be agitated all over again after the dismissal of revision petition filed by the appellants wherein this Court vide its judgment dated 09.03.1989 categorically came to the conclusion that the disputed lands were situated in the Aabadi of the Town of Jetaran and Aabadi land is excluded from the definition of land under Section 5(24) of the Rajasthan Tenancy Act, 1955.
Both the courts below after thoroughly and critically examining the factual, documentary and legal position, came to the conclusion that while on the one hand title of the plaintiffs was proved by way of Patta issued by the then Jodhpur State, the possession was proved by various rent-notes (Ex.– 3 to
6) and proceedings initiated by the Tehsildar under Section 91 of the Land Revenue Act, which proceedings were subsequently dropped; the documents produced by the defendants did not bear the signatures of the Executive Officer or Tehsildar, Jetaran by which it was claimed that the possession was handed over by the State Government.
The document (Ex.–D-2) merely indicated a note by the Chairman, Municipal Board indicating that they have removed the trespassers and have taken possession of the suit land, which was self serving.
There is no document on record either allotting the land in question by the State Government and/or handing over possession of the same to the Municipal Board.
Mere mutation, that also of the land, which is situated in the Aabadi area, which is merely a fiscal entry cannot confer title.
The plaintiffs had produced documents pertaining to 7 the title standing in the name of Samaj and letting out of the suit land to persons way back in the Samvat Year 1998 and 2008.
In view of the overwhelming documentary and oral evidence on behalf of the plaintiffs available on record and failure of the respondents to produce any cogent evidence displacing the claim made by the plaintiffs, it cannot be said that the findings of fact regarding title and possession recorded by both the courts below were perveRs.so as to give rise to any substantial question of law in this appeal.
The courts below after critically analyzing the oral and documentary evidence available on record have arrived at concurrent findings regarding the title and possession, which does not require any interference by this Court.
Consequently, there is no substance in the second appeal and the same is, therefore, dismissed.
(ARUN BHANSALI).J.
PKS