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2005 DIGILAW 1907 (RAJ)

Abdul Munir Khan v. Gulzar Singh

2005-07-26

DALIP SINGH

body2005
Judgment Dalip Singh, J.- This is plaintiff s first appeal arising out of a suit preferred by the plaintiff-appellant against the defendant-respondents for possession before the trial Court in respect of possession of a piece of land described as plot No. 130 in Badodiya Basti, Jaipur 2. In nutshell the case of the plaintiff-appellant is that he was in possession of a piece of land in said basti and subsequently this land was acquired by the then Urban Improvement Trust. The survey was carried out of the persons who were residing in the said basti in development process by the Urban Improvement Trust and thereafter allotment letters were issued to the occupants of the said basti and the plaintiff-appellant was for the first instance allotted plot No. 128 in the said basti which allotment was subsequently altered by correcting the number of the plot as plot No. 130. It is this plot No. 130 for the possession of which, the suit from which the present appeal arises has been filed. 3. The case of the plaintiff-appellant further was that this plot has been occupied and taken possession of by the defendants and the defendants have no right, title or interest on the same as such they are trespassers and the plaintiff-appellant had prior to the filing of this suit when the Urban Improvement Trust wrongly canceled his allotment of plot No. 130 filed a suit against the UIT which was decree and the cancellation of the allotment of plot No. 130 was set aside. The UIT challenged the decree to the earlier suit but the same was maintained upto the High Court in second appeal and the cancellation of the allotment of plaintiff-appellant of plot No. 130 by the UIT was set aside. Thus, the plaintiff based his suit on title of plot No. 130. 4. In reply to the aforesaid, the defendant-respondents filed written statement therein that the plaintiff was never in possession of plot No. 130 and that the defendants had always been in possession of the said plot. The defendants denied the fact that the plot No. 130 had been allotted by the UIT to the plaintiff-appellant and further denied having any knowledge about the previous litigation or the decree having passed in favour of the plaintiff in the suit. The defendants denied the fact that the plot No. 130 had been allotted by the UIT to the plaintiff-appellant and further denied having any knowledge about the previous litigation or the decree having passed in favour of the plaintiff in the suit. It was further submitted that assuming that the said decree had been passed, the same is not binding upon the defendants. 5. Based upon the aforesaid pleading, learned trial Court framed as many as nine issues. Issue No. 1 was in respect of the fact as to whether plot No. 130 is owned by the plaintiff . The learned trial Court after having gone through the evidence came to the conclusion that plaintiff had failed to prove his title over the plot No. 130 and consequently, the learned trial Court decided issue No 1 against the plaintiff . 6. The learned trial Court also held that plaintiff had failed to prove that defendants had forcibly occupied and taken possession of plot in dispute on 112.1986. Based upon the findings of these two main issues, learned trial Court dismissed the suit filed by the plaintiff-appellant and it is on account of the aforesaid that the plaintiff has come up in appeal before this Court. 7. The submission of the learned Counsel for the appellant is that learned trial Court has committed a serious error in deciding issue No. 1 against the plaintiff . His submission is that on the record the plaintiff had produced the documents in the form of Exhibit-23, the allotment order dated 17.01.1977 by which plot No. 128 was allotted by the UIT to the plaintiff . He has then drawn the attention of the Court to the fact that in respect of the aforesaid allotment charges which were required to be deposited by the plaintiff were deposited vide Exhibit-24 receipt dated 19.01.1977. Subsequently, thereafter on 25.03.1977 the UIT vide Exhibit-25 letter informing the plaintiff that in place of plot No. 128, plot No. 130 has been allotted to him and consequently in the allotment letter dated 17.01.1977 Exhibit-23 in place of plot No. 128 “plot No. 130” may be read as having been allotted to the plaintiff . He, therefore, submits that in terms of the aforesaid allotment, the plaintiff had a rightful title over the said plot of land being plot No. 130 which is the subject matter of the suit. 8. He, therefore, submits that in terms of the aforesaid allotment, the plaintiff had a rightful title over the said plot of land being plot No. 130 which is the subject matter of the suit. 8. Learned Counsel for the plaintiff has further drawn the attention of the Court that after the said allotment was made in favour of the plaintiff-appellant, the UIT cancelled the said allotment on account of the plaintiff filed a suit against the UIT challenging the order of cancellation. The said suit was decreed by the trial Court vide Exhibit-36 Judgment dated 31.03.1980 wherein it was held that order of cancellation of the allotment was bad in the eye of law and it was ordered while passing the decree that defendant (UIT, Jaipur) were restrained from taking any action against the interest of the plaintiff and further to maintain status quo over the said plot and not to disturb the possession of the plaintiff . The UIT, Jaipur challenged the aforesaid Judgment and decree in appeal as well in second appeal. Vide Judgment dated 02.05.1985 Exhibit-40 the decree passed by the trial Court was upheld and the stand of the UIT that allotment was suffered from irregularity and illegality committed by the officials was not accepted by the Court and consequently, the second appeal was dismissed. Thus, the submission of the learned Counsel for the appellant that the order of allotment of plot No. 130 made in favour of the plaintiff-appellant vide Exhibit-25 correcting the entries in Exhibit-23 from plot Nos. 128 to 130 stands and, therefore, the learned trial Court committed a serious error while deciding the issue No. 1 that the plaintiff had failed to prove his title. A perusal of the Judgment of the trial Court goes to show that learned trial Court dealt only one question regarding actual location about plot No. 130 and has held that plaintiff was unable to prove that land in dispute was actually plot No. 130. 9. A perusal of the written statement and particularly Para 7 goes to show that defendants had submitted that plaintiff was never in possession of the plot No 130 and on the contrary the said plot No. 130 has always been in possession of the defendants. 9. A perusal of the written statement and particularly Para 7 goes to show that defendants had submitted that plaintiff was never in possession of the plot No 130 and on the contrary the said plot No. 130 has always been in possession of the defendants. It has also been stated in the preceding para that plot No. 129 was allotted to Lal Singh and that the defendants are son and wife respectively of the deceased Lal Singh. Thus, the parties went ot trial knowing fully well that dispute was actually in respect of plot No. 130 and the defendants were aware of the fact that plaintiff was seeking decree in respect of the plot No. 130 itself . The defendants were in possession of plot No. 129 which had been allotted to the father and/or husband of the defendants No. 1 and 2 and the suit had been filed for declaration and possession of the plot No. 130. Learned trial Court in my view, erred in finding that since originally plot No. 128 was allotted and the allotment was then changed to plot No. 130, this amounts to the fact that in fact the plaintiff was in possession of the plot No. 128 and not 130 cannot be sustained, as has been noticed above, the allotment of plot No. 128 made vide allotment order dated 17.01.1977 was altered vide Exhibit-25, allotment letter/corrigendum dated 25.03.1977. Furhter the plaintiff went to the Court challenging the cancellation of his allotment in previous suit against the UIT and the cancellation of his allotment in respect of plot No. 130 was set aside by the Court in the decree passed in the suit and it is in respect of plot No. 130 that the suit has been filed and this property in dispute has been mentioned in Para No. 3 of the plaint and it is in respect of the said property plot No. 130 that the relief in Para 15(1) has been sought by the plaintiff-appellant wherein it has been stated Þ;g fd fooknxz Lr IykV uEcj 130 ftldk foLr`r fooj.k okn Ik= ds iSjk uEcj 3 esa ntZ gS mlls izfroknhx.k dks csn[ky fd;k tkdj oknh dk dCtk djk;k tkosAß 10. In the instant case, therefore, Judgment of the learned trial Court on issue No. 1, requires to be set aside. In the instant case, therefore, Judgment of the learned trial Court on issue No. 1, requires to be set aside. Another aspect which requires to be considered here is that plaintiff-appellant based his suit on title and proved his title vide allotment letter issued by the UIT in which the land has vested consequent upon the acquisition of the land in accordance with the proceedings which were taken under the Land Acquisition Act. A perusal of the Exhibit-9, the award passed by the Land Acquisition Officer shows that name of Abdul Munir, plaintiff-appellant finds place at Serial No. 13 which has been marked as A to B. In the award it has been clearly mentioned that vide notification dated 02.03.1964 issued under Section 4 of the Land Acquisition Act, the land was acquired and subsequently the notification under Section 6 was issued on 13.01.1966 in the gazette. Consequent upon the acquisition of land, the land vested with the State and since the acquisition has been made for the purpose of UIT for resettlement of Kachchi Basti of Village Barodia. The residents of said Basti were resettled and the allotments were made to the said residents in pursuance of the letter dated 17.03.1976 of the Secretary, UIT. The said letter has been placed on record by the plaintiff as Exhibit-20. It is consequent of the aforesaid the allotment vide Exhibits 23 and 25 was made of plot No. 128 and for the first instant the plot No. 130 which is disputed plot subsequently in favour of the plaintiff-appellant. In that view of the matter, the title of the plaintiff was never in glove over the plot No. 130 and the findings of the learned trial Court on the aforesaid issue deserves to be set aside and it is held while deciding issue No. 1 that plaintiff has been able to prove his title over the plot No. 130, Barodia Basti, Jaipur which is the land in dispute. So far as the findings on issue No. 2 are concerned which relate to the possession over the plot of land are concerned, the plaintiff has led evidence in the form of Exhibit-28 which is the possession letter of plot No. 130 asking the plaintiff to take possession of plot No. 130 which is the plot in dispute. So far as the findings on issue No. 2 are concerned which relate to the possession over the plot of land are concerned, the plaintiff has led evidence in the form of Exhibit-28 which is the possession letter of plot No. 130 asking the plaintiff to take possession of plot No. 130 which is the plot in dispute. Thereafter, in Exhibit-36 which is Judgment dated 31.03.1980 in the suit filed by the plaintiff against the UIT challenging the cancellation of his allotment while deciding issue No. 1 it has come that possession of the plot was handed over to the plaintiff by the officials of the UIT. While deciding the said issue learned trial Court in that case relied upon the evidence of the defence witness DW. 1 Mohanlal who has stated that the possession of the land had been given to the plaintiff . The aforesaid evidence was reiterated by the plaintiff who appeared as PW. 1 in this case. So far as above statement is concerned the said finds corroboration PW. 1 Abdul Munir Khan has stated in his examination-in-chief ÞIykV ua- 130 tks eq>s vyksV gqvk Fkk mldk dCtk es jk lu~ 1932 ls pyk vk jgk gSAß So far as above statement is concerned the said finds corroboration in Exhibit-18 and Exhibit-20 which have been filed by the plaintiff . Exhibit-18 is a letter written by the Assistant Secretary to the Government on 03.01.1976 to the Secretary, Urban Improvement Trust, Jaipur wherein it has been recorded as under:- “It appears from the documentary evidence produced by Shri Munir Khan in the past copies of which are available in the file, that the applicant was residing in this basty prior to 21.08.1971. He may, therefore, be allotted a plot of the same size as have been allotted to the persons in the basty subject to his production of evidence to the effect that he has been continuously living in the basty ever after 21.08.1971.” 11. After the aforesaid letter Exhibit-18 dated 03.01.1976 was written, since the allotment was not made, it appears that the plaintiff-appellant made a grievance to Chief Minister and the said representation was sent to the Secretary of UIT. After the aforesaid letter Exhibit-18 dated 03.01.1976 was written, since the allotment was not made, it appears that the plaintiff-appellant made a grievance to Chief Minister and the said representation was sent to the Secretary of UIT. A reply to the said representation was sent by Exhibit-20 by the Secretary, UIT to the Director, Grievance Cell in the Chief Minister Secretariat in which the Secretary has clearly stated in response to the representation making a reference of letter of the Government dated 03.01.1976 as under:- Þtgk¡ rd Jh vCnqy equhj [kk¡ ds nkos dk lEcU/k gS og jkT; ljdkj ds Lrj ij vafre :Ik ls fuf .kZr gks pqdk gS vkSj vc mlesa dksbZ vU; tk¡p cdk;k ugha gSA ------- vki Hkh Ñi;k vius Lrj ls Jh vCnqy equhj [kk¡ dks ;g vkoklu ns ldrs gS fd mudk nkok Lohdkj fd;k tk pqdk gS ysfdu vU; O;fDr;ksa ds nkoksa dks lquokbZ ds ckn gks vkoUVu dk dk;Zfof/kor gks ldsxkAß 12. Thus, so far as the possession of appellant is concerned, the UIT having made full enquiry came to the conclusion that appellant was in possession of the land prior to the year 1971 and continued in possession of the same ever after the year 1971. Subsequently, after the letter of allotment was made the formal possession of plot of land was made to the plaintiff -appellant as has been recorded in Exhibit-28 dated 12.07.1977 also. Thus, so far as the decision on issue No. 2 is concerned, the same deserves to be reversed inasmuch as the learned trial Court has found contrary to the aforesaid evidence that plaintiff was not in possession of the plot in dispute. It has also come in the Judgment Exhibit-36 that plot No. 129 was allotted to Lal Singh and not plot No. 130 and Lal Singh was in possession of the said plot No. 129. In that view of the matter, the case of the plaintiff is that it was only on 112.1986 that the defendant-respondents made encroachment upon the land and took possession of the same. The finding of the learned trial Court while deciding issue No. 2 against the plaintiff with regard to the possession over the plot No. 130 is concerned is liable to be set aside. The finding of the learned trial Court while deciding issue No. 2 against the plaintiff with regard to the possession over the plot No. 130 is concerned is liable to be set aside. 13 From the aforesaid, it is conclusively proved that plaintiff -appellant has a valid title over the plot No. 130 and its identity is also not in dispute. On the contrary, the defendant-respondents have failed to prove any title over the said piece of land. Thus, the rightful owner, in my opinion, is entitled to a decree for possession over the plot of land over which he has title and since the defendants in this case have failed to prove their title over the land in dispute, plot No. 130, the suit of the plaintiff for possession deserves to be decreed. Consequently, this appeal deserves to be allowed and the Judgment and decree passed by the learned trial Court dated 23.08.1997 deserves to be set aside. 14. Having held so the learned Counsel for the appellant has submitted that appellant would be willing to forgo his claim for 10x 20 of land out of the plot of land towards the back of plot No. 130 adjacent to plot No. 127 on the condition that appellant submits an undertaking before the trial Court by 15.09.2005 to handover vacant and peaceful possession of the remaining area of the land out of plot No. 130 measuring 38.6"/38.3 x 20 by removing the constructions in the area of 38.6"/38.3 x 20 and since it is the rainy season, the appellant submits that for removal of the constructions and handing over the peaceful possession he would be willing to grant time upto 312.2005 to the defendant-respondents. He has also submitted that for approaching the said area of 10x20 the appellant would be willing to allow the right of passage only to the said area of 10x20 through setback area towards plot No. 131 as shown in Exhibit-33, approved site plan. He has also submitted that for approaching the said area of 10x20 the appellant would be willing to allow the right of passage only to the said area of 10x20 through setback area towards plot No. 131 as shown in Exhibit-33, approved site plan. In view of the aforesaid, while passing a decree in favour of the appellant for the possession of the plot No. 130, it is hereby ordered that in case the respondents submit the undertaking by 15.09.2005 to willingly handover the vacant and peaceful possession of the area 38.6"/38.3” x 20 out of the plot No. 130 and remove the constructions which exists on the said area on or before 312.2005, the decree in this suit for possession of the plot No. 130 would be limited to the area 38.6"/38.3 x 20 only. However, in case the respondents fail to submit the said undertaking by 15.09.2005 to handover the said area of 38.6"/38.3 x 20 of plot No. 130 on or before 312.2005 to the decree-holder appellant, the decree-holder appellant would be entitled to the possession of entire area of plot No. 130 measuring 48.6/48.3” x 20 alongwith mesne profits at the rate of Rs. 50/-per month from the date of filing of the suit. 15. Consequently, the appeal is allowed in the aforesaid terms. In view of the aforesaid, the stay application does not survive and the same is also disposed of .