Gumana Ram Vs. Natha Ram and ors. - Court Judgment

Gopal Krishan Vyas, J.

1. This revision petition has been filed by the petitioner challenging the judgment dt. 13.11.2002 passed by the Civil Judge (Junior Division), Dungargarh, whereby the suit filed by the petitioner under Section 6 of the Specific Relief Act was dismissed.

2. According to facts of the case, a suit for eviction and declaration, so also, for permanent injunction was filed by the petitioner before the trial Court. In the suit, it is stated by the petitioner that there is patta issued in his favour with regard to the plot in question by the Gram Panchayat, Sudsar. The said patta was issued upon the application filed by the petitioner on 11.02.1986, in which, it was prayed by the petitioner that he is in possession of the land for last 50 years. The application was accepted by the Gram Panchayat and, on the basis of old possession, patta No. 43 for land measuring 2486 Sq Yd land was issued on 28.10.1986 and, as per the petitioner, the said patta was challenged by way of filing appeal before the Panchayat Samiti by one Pokar Ram and the said appeal was allowed by the Panchayat Samiti, Dungargarh and patta issued in favour of the petitioner was set aside on 12.09.1991

3. Against aforesaid order of cancellation of patta passed by the Panchayat Samiti, Dungargarh in appeal, the petitioner preferred revision petition before the District Collector, Churu and the District Collector, Churu set aside the order dt. 12.09.1991; meaning thereby, as per the petitioner, the patta issued in favour of the petitioner became final and he was in possession of the plot in question for last 50 years.

4. In the plaint, it is further stated by the petitioner that he is resident of village Sudsar and, for the agriculture purpose, some times, he is going to village Likhmisar; but, in fact, he is residing in village Sudsar. On 16.02.1998, however, in his absence, the respondents took possession of the plot for which patta was issued in favour of the petitioner by the Gram Panchayat, Sudsar, therefore, as per the petitioner, he was illegally dispossessed and illegally was made over the plot by the respondents. Hence, it is prayed that decree may be issued in his favour and the respondents may be evicted from the plot in question and they may further be restrained from interfering in the peaceful possession of the petitioner.

5. After issuing notices in the suit to the defendants, reply was filed before the trial Court and it is specifically pleaded in the written-statement that patta in question is forged and it has been illegally issued in connivance with the officials and office bearers of the Gram Panchayat and, in fact, the plaintiff was not in possession of the said plot for last 50 years. More so, as per the non-petitioners, they are in possession over the plot in question for last more than 60 years, therefore, while filing the counterclaim, it was prayed that on the basis of adverse possession they may be declared owner of the said plot.

6. After filing of the written-statement, the trial Court framed the following issues:

(1) D;k okni= dh pj.k la[;k 1 esa of.kZr vkls ikls o {ks= dh Hkwfe dk ik xzke iapk;r us oknh dk 50 o'kZ iqjkuk dCtk ekurs gq, fnukad 28-10-1986 dks tkjh fd;k

------oknh

(2) D;k froknh la[;k 1 ls 6 us okni= ds pj.k la[;k 7 esa of.kZr oknh dh Hkwfe ij vfre.k dj uktk;t :i ls dCtk dj fy;k ------oknh

(3) D;k froknh la[;k 7 ls 12 us okni= ds pj.k la[;k 8 esa of.kZr Hkwfe ij vfre.k dj uktk;t dCtk dj fy;k ------oknh

(4) D;k oknh froknhx.k ls rkjh[k nk;jh nkok ls rk kfIr dCtk 100@& #i;s frekg dh nj ls vardkyhu ykHk dh jkfk kIr djus dk vfkdkjh gS ------oknh

(5) D;k oknh us xzke iapk;r] lwMlj ds vfkdkfj;ksa ls fefyHkxr djds QthZ ,oa voSkkfud ik tkjh djok;k gS] tks froknhx.k ij dksbZ ck;dkjh Hkko ugha j[krk gS -------froknhx.k

(6) D;k okn ij U;k; kqYd de vnk fd;k x;k gS -------froknhx.k

(7) D;k frnkok ds iSjk la[;k 1(d) esa of.kZr vklk iklk dh Hkwfe ij froknh la[;k 1 rk 6 o pj.k la[;k 1([k) esa of.kZr vklk iklk dh Hkwfe ij froknhx.k la[;k 7 ls 12 dk dCtk ihf<;ksa ls 60 o'kksaZ ls fujUrj [kqys&vke;] lhekc ,oa vuU; dkj ls gksus ls fookfnr Hkw[k.M ij froknhx.k dk frdwy dCtk ifjiDo gksus ls ekfydkuk gd kIr gks pqds gS -------froknhx.k

(8) D;k xzke iapk;r }kjk tkjh ik la[;k 43 fnukad 28-10-1986 frokni= esa vafdr vkkkjksa ij voSk ,oa kwU; gS -------froknhx.k

(9) D;k vfreh dks ,MolZ itsku gkfly ugha gksrk gS ------oknh

(10) D;k froknhx.k vfreh gS] blfy, frnkok [kkfjt fd, tkus ;ksX; gS------oknh

(11) D;k iw.kZ dksVZ Qhl ds vHkko esa frnkok [kkfjt fd, tkus ;ksX; gS ------oknh

(12) D;k is dks voSk ,oa kwU; ?kksf'kr djokus dk vuqrksk vanjfe;kn ugha gS------oknh

(12,) vk;k oknh dk ik jftLVMZ ugha gS o vk;k 100@& #i;s ls vfkd dk nLrkost dkuwuu jftLVMZ gksuk vko;d gS rFkk bldk nkos ds mij D;k Hkko gS (fnukad 06-02-2001 dks fojfpr)

(13) vuqrks'k

7. After framing the above issues, the trial Court granted opportunity to both the sides to lead their respective evidence. The plaintiff examined himself and produced witness Magha Ram, P.W.-2 and also exhibited 3 documents to prove the case viz., Ex.-1, Patta, Ex.-1A, copy of original patta, Ex.-2, site plan and Ex.-3, judgment of the District Collector passed in the revision petition. From the side of the defendants, statements of as many as six witnesses were recorded and 5 documents were also produced and exhibited. Thereafter, the learned trial Court proceeded to decide the matter issue-wise.

8. Issue No. 1 was decided against the plaintiff and issues No. 2, 3 and 4 were also decided against the plaintiff. Likewise, issues No. 5 and 8, for which, the burden lay upon the defendants were decided against the defendants. Issue No. 6 with regard to valuation of the suit was decided against the defendants. Likewise, issue No. 7 was decided against the defendants.

9. Learned Counsel for the petitioner vehemently argued that the learned trial Court has committed an error while dismissing the suit of the plaintiff while not accepting the patta in question which is issued by the Gram Panchayat, Sudsar which was finally declared legal by the order of the District Collector in revision, in which, the patta in question was challenged by respondent Pokar Ram; meaning thereby, if the petitioner is having valid patta issued by the competent authority, then, it cannot be said that he is not owner of the property in question, therefore, issue No. 1 was wrongly decided against the plaintiff.

10. Similarly, issues No. 5 and 8 are also decided against the respondents, in which, issue was that whether the patta in question was illegally issued with connivance with the officials and office bearers of the Gram Panchayat or whether the said patta is forged; meaning thereby, the trial Court has committed an error while deciding issue No. 1 against the plaintiff because the trial Court has decided issues No. 5 and 8, for which, burden of proof lay upon the shoulders of the non-petitioners and they were to prove whether the patta issued by the Gram Panchayat was forged or was issued with connivance with the officials and office bearers of the Gram Panchayat. In this view of the matter, issues No. 1, 5 and 8 have been decided contrary to each other. On the one hand, the trial Court has rejected the plea of the petitioner that he is having valid patta in his name issued by the competent authority, whereas, on the other hand, the allegation of respondents with regard to legality of the patta has been decided against the respondents; meaning thereby, the finding of the trial Court with regard to issues No. 1, 5 and 8 is contrary to each other. Learned Counsel for the petitioner vehemently argued that the main basis for arriving at the said finding is that the petitioner has not produced the documents issued by the Gram Panchayat, Sudsar; but, as per the petitioner, though he has produced and filed application for summoning the record of the Gram Panchayat to prove his case but vide order dt. 10.04.2000 rejected the application filed by the petitioner for summoning the documents; meaning thereby, if any allegation is made by the respondents with regard to validity of the patta and to prove the patta in question application is filed by the petitioner for summoning the documents from the Gram Panchayat, the learned trial Court ought to have summoned the proceedings of the Gram Panchayat relating to issuance of the patta in question.

11. In that view of the matter, on the one hand, the petitioner made all efforts to prove his case and, for that purpose, while inviting attention of the trial Court that his patta attained finality after the judgment passed by the District Collector in revision, then, at that juncture, to prove the issue with regard to validity of the patta, the petitioner moved application for summoning the record from the Gram Panchayat, then, obviously the trial Court ought to have summoned the record of the proceedings from the Gram Panchayat. In this view of the matter, the learned trial Court has committed error while rejecting the application filed by the petitioner for summoning the record to ascertain whether the patta was issued after following procedure of law. The petitioner was not required to prove the patta after final adjudication made by the District Collector which was not further challenged by the respondents. Therefore, on this ground alone it can be said that the trial Court has committed error while not accepting the application of the petitioner for summoning the record and further not accepting the contention of the petitioner that he is holding valid patta.

12. Learned Counsel for the petitioner further argued that the finding on issues No. 5 and 8 also loudly speaks that the trial Court has not accepted the plea of the respondents either that patta was illegally issued or was forged; meaning thereby, the trial Court has not accepted any version either of the plaintiff-petitioner or respondents with regard to patta in question, therefore, there is total perversity apparent on the face of record with regard to appreciation of evidence in the finding arrived at by the learned trial Court.

13. With regard to issue No. 7, whereby the learned trial Court has decided the counter-claim of the respondents, it is submitted that the said issue was with regard to declaring the non-petitioners as owner of the property on the basis of plea of adverse possession. It is very strange that the trial Court has not accepted the counter-claim of the respondents and decided issue No. 7 against the respondents and plea of the respondents with regard to possession upon the land for last 60 years is rejected. Learned Counsel for the petitioner vehemently argued that upon perusal of the judgment, it is revealed that the learned trial Court has not decided the matter because none of the points raised either by the petitioner or by the respondents has been adjudicated and contention of both the parties is rejected; meaning thereby, there is no adjudication by the trial Court in the suit. Therefore, the finding of the trial Court is totally perverse and, so also, the trial Court has committed material irregularity and illegality while not accepting the application of the petitioner for summoning record of the Gram Panchayat which issued the patta in favour of the petitioner which was finally declared legal by the District Collector in the revision filed by the petitioner.

14. Nobody has appeared on behalf of the respondents even after service of notice. Therefore, I have perused the entire pleadings and, so also, the judgment and evidence on record.

15. Admittedly, issue No. 1 has been decided against the plaintiff-petitioner whereby the plea of the petitioner that he is holding valid patta in his favour was rejected. Upon perusal of the adjudication made upon issue No. 1 and finding on issue No. 1, it is very strange that on the one hand the trial Court has accepted that the patta in question was finally held valid by the District Collector while allowing the revision filed by the petitioner against the order passed in appeal by the Panchayat Samiti, Sridungargarh; meaning thereby, if the patta was finally declared valid and, again, when issue was framed by the trial Court, then, application filed by the petitioner for summoning the record of the Gram Panchayat was necessary to ascertain the correctness of the patta because the respondents disputed the said patta by way of filing written-statement, in which, it is stated that no proceedings was undertaken by the Gram Panchayat for issuing the said patta. On the one hand, the trial Court accepted the plea of the petitioner for the validity of the patta which was finally decided by the District Collector and, on the other hand, the trial Court decided the issue against the plaintiff-petitioner. Both the versions are contrary to each other. Therefore, in my opinion, for final adjudication and to ascertain the correctness of the patta, it was the duty of the trial Court to summon the proceedings with regard to issuance of the patta in favour of the petitioner by the Gram Panchayat, Sudsar; more so, when the application was filed by the petitioner for summoning the said proceedings, then, it was the duty of the trial Court to summon the record because specific allegation was levelled that no proceedings was undertaken by the Gram Panchayat; meaning thereby, in a casual manner, the trial Court has decided issue No. 1 against the plaintiff and held that he has not proved the patta whereas the patta attained finality after the judgment passed by the District Collector in the revision filed by the petitioner against the order of the Panchayat Samiti passed in appeal filed by the respondent Pokar Ram. Therefore, if any confusion arose or anything was to be adjudicated with regard to legality of the patta in question, then, for the same, application filed by the petitioner for summoning the record was to be accepted and, for the final adjudication of the matter the trial Court ought to have summoned the record of the Gram Panchayat, Sudsar with regard to issuing patta in favour of the petitioner. In this view of the matter, the trial Court has committed error and illegality while rejecting the plea of the petitioner that he is having valid patta in his favour. The trial Court was under obligation to summon the record of the proceedings drawn by the Gram Panchayat, Sudsar while issuing the patta in question to ascertain whether the said patta was issued after following the procedure laid down under the rules.

16. In this view of the matter, I am of the opinion that for deciding issues No. 1, 5 and 8 the matter requires reconsideration because the adjudication made by the trial Court is not proper and, so also, for adjudicating the controversy the record of the Gram Panchayat, Sudsar was necessary in view of the fact that the District Collector allowed the revision filed by the petitioner against cancellation of the patta by the Panchayat Samiti, Sridungargarh.

17. Accordingly, this revision petition is partly allowed. The judgment under challenge dt. 13.11.2002 is set aside with the order that the application filed by the petitioner for summoning the record which was rejected vide order dt. 15.07.2000 is hereby allowed and the trial Court is directed to summon the proceedings of the Gram Panchayat, Sudsar with regard to issuing patta No. 43 dt. 28.10.1986 in favour of the petitioner and after summoning and considering the said record the matter may be decided afresh within a period of six months.