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1994 DIGILAW 34 (RAJ)

Ram Gopal v. Kalyan

1994-01-13

R.S.KEJRIWAL

body1994
JUDGMENT 1. - This Civil Second Appeal under Section 100 C.P.C. has been filed against the judgment and decree passed by learned Additional District Judge, Dausa (Camp at Jaipur), in Civil Regular Appeal No. 2/1985(16/1983), by which he confirmed the decree dated 15.3.1983, passed by the learned Civil Judge, Jaipur District, Jaipur, in Civil Suit No. 46/1979 (94/1980) by which, the suit of the respondents for permanent injunction was decreed. 2. Brief relevant facts of the case are that on 15.3.1979, the plaintiff respondents filed a suit for permanent injunction against the defendant-appellants with the allegations that the plaintiff-respondents had been in possession of the disputed 'Bara' since long and the defendant-appellants on 18.3.1979, made an attempt to dispossess the plaintiff-respondents. It was prayed that the defendant-appellants be restrained from interfering in the possession of the plaintiff-respondent's over the disputed 'Bara'. The appellants in their joint written statement took inconsistent pleas. At one place, they alleged that the disputed 'Bara' belonged to Temple Shri Ramdeo Ji and at another place they alleged that the disputed land was Government land. 3. The trial court after framing the necessary issues, decreed the suit of the plaintiff vide its judgment and decree dated 15.3.1983. Against the said decree, the appellants filed an appeal which was dismissed by the learned Additional District Judge, Dausa (Camp at Jaipur), vide his judgment and decree dated 8.10.1986. Being dis-satisfied with the judgment and decree dated 8.10.1986, the appellants filed this present appeal before this Court. 4. I have heard learned counsel for the parties and have gone through the record of the case. 5. Learned counsel for the appellants argued that both the courts below has erroneously held that the plaintiff-respondents were in possession of the disputed 'Bara'. This finding of the lower court is contrary to the record and as such, not binding in second appeal. In support of his argument, learned counsel for the appellants placed reliance on the decision of Hon. Supreme Court, Madan Lal v. Mst. Gopi and another, reported in AIR 1980 SC 1754 . In this case the Apex Court held that where both courts below ignored the weight of prepondering circumstances and allowed their judgments to be influenced by inconsequential matters, the High Court would be justified in re appreciating the evidence and in coming to its own independent conclusions. Gopi and another, reported in AIR 1980 SC 1754 . In this case the Apex Court held that where both courts below ignored the weight of prepondering circumstances and allowed their judgments to be influenced by inconsequential matters, the High Court would be justified in re appreciating the evidence and in coming to its own independent conclusions. But this judgment is not applicable to the facts of the present case. The finding recorded by the lower courts is based on the facts on record. From the document marked Ex.-A/8. produced by the defendants themselves, it is apparent that the plaintiffs were in possession of the disputed 'Bara'. From this document, which is report of the Tehsildar, it appears that he wall constructed by the building materials and other goods belonging to the plaintiffs were not removed. No witness has been produced by the defendants to prove that even the wall was demolished. There is no evidence on record from the side of the defendant-appellants that the building materials lying on disputed land were removed. Both the courts below concurrently found that the respondents were/are in possession of the disputed 'Bara' and as such, this finding of fact can not be disturbed in the Second Appeal. 6. Learned counsel for the appellants also argued that the trial court vide its order dated 21.11.1981, rejected the application for temporary injunction ,filed by the respondents and as such, courts below should not have decreed the suit of the plaintiffs for injunction. I do not, agree with the arguments advanced by the learned counsel for the appellants. The application for temporary injunction was rejected prior to the recording of the evidence of the parties. After recording the evidence, the trial court recorded the finding that the disputed bara was in possession of the plaintiff-respondents and under these circumstances, the trial court decreed the suit of the plaintiffs. The said decree was upheld by the first appellate Court. 7. Learned counsel for the appellants next argued that the appellants obtained a Patta of the disputed land from the Gram Panchayat on 5.10.1980, during pendency of the suit and as the appellants are owners of the disputed land and as such, no decree for injunction can be granted against them. 7. Learned counsel for the appellants next argued that the appellants obtained a Patta of the disputed land from the Gram Panchayat on 5.10.1980, during pendency of the suit and as the appellants are owners of the disputed land and as such, no decree for injunction can be granted against them. In this connection, it is submitted that this case was never put forward by the appellants in their written statement and no issue was joined by the defendants appellants. In the written statement, the appellants came with the case that the disputed land was a public land, belonging to the temple of Shri Ramdeoji. The defendants cannot be permitted to raise inconsistent plea. Further more, from the document Annexure A/7, produced by the defendant-appellant themselves, It appears that the Collector, Panchayat, Jaipur District Jaipur, vide his order dated 28.12.1978, restrained the Panchayat from selling the disputed land to any other person. In view of this, the Gram Panchayat, Futolav-gaon was not competent to grant patta of the disputed land to the defendant-appellants. Further more, rule 269 of the Rajasthan Panchayat (general Rules, 1961, provides that if the ownership of any abadi land is in dispute, such land shall not be sold by a Panchayat. In view of this, the Gram panchayat, Futolav-gaon was not competent to grant sale-deed of the disputed land in favour of the defendant-appellants. Learned counsel for the appellants cited the following decisions in support of his arguments. Binayak Swain v. Ramesh Chandra Panigrahi and another, AIR 1966 SC 948 ; Ram Ratan v. Mathura Prasad and others, AIR 1971 MP 69 and Dinendra Narayan Roy and others v. Ms. Bhura Brothers and another, reported in AIR 1978 NOC 15 (Gauhati) . 8. The aforesaid decisions are distinguishable and are not relevant to the facts of the present case. 9. Learned counsel for the appellants next argued that the plaintiffs are trespassers and as such they are not entitled to grant of discretionary relief of injunction. In support of this argument, learned counsel for the appellants placed reliance on Madamanchi Ramappa and another v. Muthaluru Bojjappa, reported in AIR 1963 SC 1633 , and JT 1993 (6) SC 331 (S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and Ors.) .These judgments are totally distinguishable and are. In support of this argument, learned counsel for the appellants placed reliance on Madamanchi Ramappa and another v. Muthaluru Bojjappa, reported in AIR 1963 SC 1633 , and JT 1993 (6) SC 331 (S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and Ors.) .These judgments are totally distinguishable and are. not applicable to the facts of the present case.Both the lower courts have found that the plaintiff-respondents are in possession of the disputed 'Bada'. Even for the sake of arguments, it is assumed that the plaintiffs are trespassers, still they can on the strength of their possession resist inference from the defendants, who have no better title than the plaintiff. My view is based on the decision of the Apex Court, reported in AIR 1972 SC 2299 (M. Kallappa Setty v. M.V. Lakshminarayana Rao) .Further more, this question was not raised before the courts below. 10. Considering all the facts and circumstances of the case, I am of the view/that no substantial question of law is involved in this appeal, so the same is dismissed without any order as to coast.Revision dismissed. *******