Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 1101 (RAJ)

L. RS. of Teckchand v. U. I. T.

2000-09-01

V.G.PALSHIKAR

body2000
JUDGMENT 1. - This appeal under section 100 of the C.P.C. is filed by the unsuccessful plaintiff having failed in both the courts below. 2. Facts giving rise to the present second appeal stated briefly are that; the original civil suit No. 132/72 was filed in the Court of Civil Judge (J.D.), Udaipur by Tek Chand whose legal representatives are now the appellants before this Court. The suit as filed in the court of Munsif (the court of First Class and Civil Judge (Jr. D.) was then called) was for permanent injunction restraining the Urban Improvement Trust and Municipal Council, Udaipur from disturbing the age-old possession of the plaintiff over the land, described in para 1 of the plaint. It was claimed in the plaint that the entire property mentioned in para 1 of the plaint is in possession of the plaintiff and his predecessors for last more than 100 years and spirit of land ad measuring 29/27 ft. towards Southern-Western corner of this property is land which is also purchased by the petitioner's predecessors and in their possession since immemorial. It was then alleged that the respondents are seeking to disturb this possession of the plaintiffs claiming to be owners of the land in question. It was claimed by the respondent-defendants that the plaintiffs encroached the same land, they have no title to it and they have no right to injunction claim. The parties led evidence in support of their respective pleadings and the learned trial court dismissed the suit by its judgment and decree dated 19.8.1968 holding that the plaintiffs have failed to prove their title to the land in question. 3. This judgment and decree was therefore, challenged under section 96 of the C.R.C. in the Court of Civil Judge (Sr. Div.), Udaipur in appeal No. 43/80. In appeal, all the questions of fact were raised and it was contended that the plaintiffs have proved their title to be the land that the trial court has on flimsy ground rejected the evidence tendered by the plaintiffs to prove their ownership and consequently, the judgment and decree is liable to be set aside. The learned appellate Judge considered all the contentions raised before him and by his judgment dated 18.3.1981, dismissed the first appeal confirming the judgment and decree as passed by the learned trial Judge. 4. The learned appellate Judge considered all the contentions raised before him and by his judgment dated 18.3.1981, dismissed the first appeal confirming the judgment and decree as passed by the learned trial Judge. 4. It is this concurrent judgment and decree which are challenged in 25 this second appeal under section 100 of the C.P.C. by unsuccessful plaintiffs. The appeal was admitted on 1st May, 1981 and the following substantial questions of law were arisen in the appeal "(1) Whether on the facts and in the circumstances of the case, the learned Additional Civil Judge was not right in not passing the decree in respect of the property covered by sale-deed (Ex. 3)? (2) Whether on the facts and in the circumstances of the case, the learned Additional Civil Judge was not right in holding that the plaintiffs are not the owners of the property in dispute as they have not been successful in establishing 30 years' possession against the local authorities (U.I.T. Udaipur and the Municipal Council, Udaipur)? 5. The appeal was vehemently argued on behalf of the plaintiffs by Shri D.R. Bhandari who contended that the courts below have committed a error of law in dismissing the suit of the plaintiffs, the rejection of the evidence was unsustainable. He relied on several decisions of the various High Courts and the Supreme Court of India claiming that as the title on which reliance was placed by him was more than 100 years old, the provision of section 90 of the Indian Evidence Act should have been pressed into service and the title of the plaintiffs should have been held as established. The proposition as envisaged by section 90 of the Indian Evidence Act and as found to be existing by several High Courts will be seen from the judgments cited at the bar. Reproduction of which in the circumstances is not necessary. There can be no doubt in regard to this position of law, however, the plaintiff has been not suited because of his failure to prove the documents of title but because of his failure to prove by cogent sufficient evidence why this document of title on which reliance was placed by the plaintiff is connected to the plaintiffs. The missing link has not been proved. The plaintiff has failed to prove relationship between plaintiff and the persons mentioned in the documents that being the situation. The missing link has not been proved. The plaintiff has failed to prove relationship between plaintiff and the persons mentioned in the documents that being the situation. No error can be found with the judgment of the trial court. Answering the first question therefore, is that the learned Additional Civil Judge was right in not passing the decree irrespective of the property existing today. 6. The plaintiffs have also not proved by any evidence that the plaintiffs are in possession of the property for more than 30 years. In order to establish title or possession, such proof is necessary. In view of this factual position or evidence. I answer the second question from time to time holding that the learned Additional Civil Judge was right in holding that the plaintiffs are owners and successfully establishing 30 years possession against the U.I.T. and Municipal Council, Udaipur. In view of my findings against the plaintiffs-appellant in both the questions framed above, the appeal fails and is dismissed. There will be no order as to costs.Second Appeal dismissed. *******