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2005 DIGILAW 788 (RAJ)

Shanti v. State of Rajasthan

2005-03-14

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-The plaintiff , describing herself as Mst. Shanti wife of Hetram alias Ramlal Jat, resident of Hanumangarh has preferred this second appeal against the Judgment and decree dated 8.1984 passed by the Additional District Judge No. 1, Hanumangarh in Civil Appeal No. 26/1982 whereby the learned Judge reversed the decree passed by the Additional Civil Judge, Hanumangarh in Civil Original Suit No. 30/1978. The suit was filed by the plaintiff-appellant for perpetual injunction against threatened demolition of construction and dispossession from disputed plot No. 35. 2. Brief facts relevant for the present appeal are that the plaintiff-appellant filed the suit for perpetual injunction with the averments in the plaint that she was an old resident of Hanumangarh Town and was in possession of her old house at Dhakka Basti, Hanumangarh Town for about 15-20 years. The plaintiff alleged that the State of Rajasthan got several persons removed from their illegal possession in the planning area of Mandi and were allotted alternative land in Sector No. 2 of Hanumangarh. According to the plaintiff , in lieu of her old possession, she was allotted plot No. 35 in the said Sector No. 2 by the Mandi Secretary. She deposited the cost of land of plot No. 35 and after making payment, raised construction over the plot and was continuing in possession as owner of the said plot. She was served with a notice on 33.1975 for removing her possession at Dhakka Basti and in accordance with the terms of allotment she removed her old possession and vacated the land and constructed a residential house at plot No. 35 and was living with her family thereat. The plaintiff alleged that the Secretary, Mandi Vikas Samiti, Hanumangarh has passed an illegal and unauthorised order for demolition of the house constructed by her at plot No. 35. The plaintiff averred that she had served a notice under Section 80 CPC upon the State of Rajasthan and if the said house would be demolished, she would suffer irreparable injury and would be rendered homeless. The plaintiff claimed that she was entitled for an injunction against the defendant for not interfering with her possession and not demolishing the construction and prayed for this relief of injunction against the defendant State of Rajasthan. 3. The plaintiff claimed that she was entitled for an injunction against the defendant for not interfering with her possession and not demolishing the construction and prayed for this relief of injunction against the defendant State of Rajasthan. 3. The averments made by the defendant-respondent State of Rajasthan in the written statement are the bone of contention in the present appeal. The defendant denied the plaint averments and submitted that a survey was conducted of the persons in unauthorized possession in the mandi area and 428 such persons were allotted the plots at other places. The defendant averred that neither there was any possession in the name of the plaintiff nor any plot was allotted. Regarding plot No. 35, it was pointed out that according to the record of allotment, this plot has been allotted at Sl. No. 258 to Mst. Munni widow of Gokul Bhat. 4. The defendant averred that neither there was any possession in the name of the plaintiff nor any plot was allotted. Regarding plot No. 35, it was pointed out that according to the record of allotment, this plot has been allotted at Sl. No. 258 to Mst. Munni widow of Gokul Bhat. 4. The defendant specifically pleaded that the plaintiff was not the allottee but was seeking to take advantage of identity of the name with the averments which being relevant for the present purpose are reproduced hereunder:- Þ¼5½ ;g fd eqrkfcd fjdkMZ vykVesUV Øe la[;k 85 ij IykV ua-413 eq- kkafr tkstk jkeyky tkV ds uke nk gSaaaa A okfnuh dks dksbZ IykV vkcaVu ugha fd;k x;k FkkA okfnuh us /kks[kk nsls vykV kqdj IykV ua- 35 dh ok xksdqjde vius uke ls tek djokyhA tc ;g rF; dk IykV ua- 35 dh ewy vykVh eq- eqUuh csy HkkV dks pyk rks bl vkk; dh nj[okLr vfrfjDr ftyk/khk ,oa lfpo e.Mh fodkl lfefr ds ;gka isk dhA ftl ij lquokbZ ds ckn fjdkMZ ds vk/kkj ij fnukad 25-7-1975 dks fu.kZ; fn;k x;k ftlesa IykV ua- 35 eq- eqUuh csok xksdqy HkkV ds uke vykV gksuk ekuk x;k rFkk IykV ua-413 eq-kkafr&jkeyky ds uke vykV gksuk ekuk x;k gSfrfyfi layXu gSA fu.kZ; dh izA oLrqfLFkfr ;g gS fd IykV ua-413 eqrkfcr fjdkMZ eq-kkafr&jkeyky ds uke vykV kqnk gSA okfnuh us bl IykV dks gM+ius ds fy, ewy vykVh ds uke jkf k ¼geuke½ gksus ds dkj.k IykV dh dher vius uke ls Hkjoknh vkSj pkyku esa vius ifr dk uke gsrjke cryk;k x;k gSA rFkk eq- kkafr&jkeyky tkV ds uke tks IykV ua-413 gS mlds LFkku ij vius pkyku esa IykV ua-35 dh jde ;U= [ kqHkjokbZ gSA tc oknuh dks ;g irk pyk fd "kM+y x;k gS rks mlus ;g nkok isk dj fn;kA nkok esa okfnuh us vius ifr dk uke gsrjke mQZ jkeyky tkV ntZ fd;k gSA mQZ dk lgkjk dsoy ek= bl jkt dks fNikus ds fy, rFkk ewy vykVh eq- kkafr&jkeyky tkV ds LFkku ij lgh Lo#i crykus ds fy, fy;k gSAÞ 5. Various other objections regarding maintainability of the suit, non-joinder of necessary party Mst. Munni and validity of notice under Section 80 CPC were taken which shall not be relevant for consideration of the question involved in this case. 6. Various other objections regarding maintainability of the suit, non-joinder of necessary party Mst. Munni and validity of notice under Section 80 CPC were taken which shall not be relevant for consideration of the question involved in this case. 6. The learned trial Court framed necessary issues requisite for determination of the questions in controversy. Issue No. 1 was framed to the following effect : 1& vk;k okfnuh dks lfpo e.Mh fodkl lfefr us IykV uEcj 35 vkoafVr fd;k Fkk vkSj og bldh Lokfeuh gS ---------oknhÞ 7. In oral evidence plaintiff examined herself as PW. 1 and defendant examined S.D. Madan, the then Secretary, Mandi Vikas Samiti in the year 1975 as DW. 1, and Ram Chandra, Girdawar, who prepared the list of unauthorized possessions as DW2. In the documentary evidence, the plaintiff produced on record cash challan dated 112.1974 towards deposit of Rs. 199/-for plot No. 35 as Exhibit 1, cash challan dated 12.1975 towards further payment for the same plot No. 35 as Exhibit 2, and photostat copy of the survey list as Exhibit 3. Thedefendant produced a copy of the order dated 27.1975 as Exhibit A/1, site inspection and allotment order for allotment to Mst. Munni W/o Gokul Bhat as Exhibit A/2, a photostat copy of the allotment letter dated 17.1971 issued in the name of Mst.Munni widow of Gokul Bhat for plot No. 413 as Exhibit A/3, an illegible photostat copy of the allotment letter for the same Mst. Munni for plot No. 35 as Exhibit A/4, and photostat copies of the allotment list as Exhibits A/5 and A/6 respectively. 8. The learned trial Judge proceeded to decide the issue involved in the case by the Judgment dated 110.1982. Issue No. 3 relating to the objection of pecuniary jurisdiction, issue No. 4 relating to Mst. Munni being a necessary party, issue No. 5 relating to the validity of the notice under Section 80 CPC and issue No. 2 relating to the jurisdiction of the Court were all decided against the defendants. Thereafter, taking up the consideration of issue No. 1, the learned Judge referred to the statement of the plaintiff to the effect that the disputed plot was allotted to her in lieu of her house at Dhakka Basti and the amount was deposited by her by the Bank Challans Exhibits 1 and 2. Thereafter, taking up the consideration of issue No. 1, the learned Judge referred to the statement of the plaintiff to the effect that the disputed plot was allotted to her in lieu of her house at Dhakka Basti and the amount was deposited by her by the Bank Challans Exhibits 1 and 2. In her cross-examination, she has stated that mostly the name of her husband was used as Hetram but he was known as Ramalal also. She has denied the suggestion that the allottee Shanti widow of Ramlal was not found and she became that Shanti in her place. The learned trial Judge noticed that the plaintiff Shanti has stated that in the voter list, the name of her husband was mentioned as Ramlal and Hetram both and in the Ration Card his name was mentioned as Ramlal and she has not produced the voter list and ration card in the proof of these facts but thereaftere, the learned trial Judge referred to the fact that the defendant has not produced any proof , therefore, no reasonable basis appears to believe that this Shanti (plaintiff) was different then Shanti widow of Ramlal (allottee) and there was statement on oath by the plaintiff that her husband carried both the names Hetram and Ramlal. 9. The learned trial Judge thereafter referred to the undisputable fact that in the allotment list Exhibits A/5 and A/6 Plot No. 35 has been changed to plot No. 413 and similarly plot No. 413 has been changed to plot No. 35 but any involvement of the plaintiff in such obliterations and changes has not been shown in the evidence. The learned Judge referred to the fact that the defendants have failed to produce any evidence to establish as to when these interpolations were made. The learned Judge referred to the difference in plot numbers in the allotment letter Exhibits A/3 and A/4 issued to Munni and the fact that the plot number has been changed from 35 to 413 in Exhibit A/3 but no such change was made in Exhibit A/4. Under the relevant rules patta could be issued only on the deposit of the entire amount and it was not proved that if Munni had deposited the entire amount and the learned Judge questioned as to how Exhibits A/3 and A/4 were issued? Under the relevant rules patta could be issued only on the deposit of the entire amount and it was not proved that if Munni had deposited the entire amount and the learned Judge questioned as to how Exhibits A/3 and A/4 were issued? The learned Judge referred to the want of clarificatory evidence by the defendants on all these differences and discrepancies. The learned Judge observed that it was also beyond comprehension as to why the defendant Department permitted deposit of the amount by the plaintiff under the challans Exhibits 1 and 2? Thereafter, the learned Judge concluded with the words that whatever might it have been, on the basis of the record and evidence, plot No. 35 is held to have been allotted to the plaintiff and she was admittedly in possession of the same, of course, she could the owner thereof only after grant of patta. A decree for permanent injunction was, therefore, granted by the trial Court that the defendant would not forcibly remove the plaintiff from plot No. 35 nor forcibly demolish her construction. 10. The Judgment and decree dated 110.1982 were assailed in appeal by the defendant State of Rajasthan on various grounds. However, before the learned Appellate Judge, the Counsel for the defendant-appellant raised only one contention relating to the findings on merits on issue No. 1 and it was contended that the allotment order on the basis of which the plaintiff was claiming rights of plot No. 35 was not in the name of the plaintiff but had been issued in the name of one Shanti widow of Ramlal Jat. In that context, it was also contended that the husband of the plaintiff Hetram was alive and when she was not a widow, then the allotment order in the name of Shanti who was widow of Ramlal was not in the plaintiff s name. The allotment was made to other Mst. Shanti who was widow of Ramlal and the plaintiff wanted herself to be substituted in her place. If was contended on behalf of the defendant that on such averments in the written statements issue No. 1 was framed, burden whereof was upon the plaintiff and she failed to discharge the burden by relevant evidence and she has failed to establish that she was the actual allottee, therefore, the trial Court erred in deciding this issue in favour of plaintiff . It was also contended that the interpolations in the allotment list also show that the plaintiff was never allotted the disputed plot. 11. The aforesaid contentions on behalf of the defendant-appellant before the first Appellate Court were refuted on behalf of the plaintiff by her learned Counsel with the contention that issue No. 1 had rightly been decided by the trial Court in favour of the plaintiff . The plaintiff had deposited twice the amount in pursuance to the allotment through challan. By evidence she has establish that although her husbands name was Hetram but he was also known as Ramlal, therefore, the trial Court has rightly treated the plaintiff as wife of Ramlal whose name was available in the allotment letter and has rightly found her to be the allottee of plot No. 5.35. If there were any obliterations or alterations in the allotment order or allotment list, the defendant alone was responsible for the same as the plaintiff has received the allotment order after the necessary corrections and she was in possession on the same plot No. 35. 12. The learned Judge proceeded to deal with the rival contentions in detail in para 3 of the impugned Judgment . The findings and considerations by the learned Judge could be summarized as under :- .(a) The learned Judge observed that the point for consideration for decreeing or dismissing the suit was as to whether the plaintiff , who was wife of a living person Hetram Jat and was never widowed, alone was allotted plot No. 35 and because of this allotment she became the owner of the plot? The plaintiff would be entitled to a permanent prohibitory injunction against the defendants only on the basis that the plot was allotted by the Secretary, Mandi Samiti to her and this was undisputed position that if plot No. 35 be held to have not been allotted to her by the defendant, then the plaintiff would not be entitled for any injunction irrespective of the decision on other issues, therefore, the issue No. 1 was material issue in the case. .(b) After summing up the relevant points for consideration as above, the learned Judge found that the burden was heavy upon the plaintiff because the allotment letter relied upon by the plaintiff shows that the plot No. 35 was allotted to a lady calling to the description Smt. Shanti widow of Ramlal. .(b) After summing up the relevant points for consideration as above, the learned Judge found that the burden was heavy upon the plaintiff because the allotment letter relied upon by the plaintiff shows that the plot No. 35 was allotted to a lady calling to the description Smt. Shanti widow of Ramlal. This allotment letter was the basis of the claim of the plaintiff , whereas the plaintiff was admittedly not a widow, therefore, the letter on the face of it appears to be for a different person Mst. Shanti. In that situation, the burden was upon the plaintiff to show that the person described in the allotment letter Smt. Shanti was the plaintiff herself and nobody else. Any deficiency in the evidence of the defendant cannot absolve the plaintiff of the burden of proving this issue No. 1. .(c) After pin-pointing the real question in controversy and placing the burden upon the plaintiff to prove the essential fact, the learned Judge proceeded to consider and evaluate the case of the plaintiff thus: .(i) Thelearned Judge found that plaintiff has examined herself only and in her statement she has stated that the name of her husband was Hetram and mostly this name only was used. She has, of course, stated that he was known as Ramlal also but then has stated that the Ration Card was carrying her husbands name as Ramlal and voter list was carrying both the names Ramlal and Hetram. The learned Judge referred to the failure on the part of the plaintiff to produce these two .documents in her possession and observed that a certified copy of the voter list could have been obtained. Therefore, an adverse inference was drawn against the plaintiff and her statement of her husband Hetram being also known as Ramlal was found unreliable. .(ii) Apart from the aforesaid consideration of adverse inference, the learned Judge also observed that if she was allotted the land, then, as the allotment letter referred her as a widow despite her husband being alive, normal human conduct would have been to get the correction made in the description, but she never asked for correction, therefore, also it appears that she wanted to take advantage of the allotment letter issued in the name of some other persons Mst. Shanti. Shanti. .(iii) The learned Judge further observed that merely by depositing the amount in relation to the said plot, the plaintiff could not be deemed to have been substituted in place of Mst. Shanti widow of Ramlal. .(iv) Thelearned Judge further observed that for proving herself as allottee, it was necessary for the plaintiff to have produced the evidence that alias of Ramlal for her husband Hetram was ever used in any record. Although her husband was having a driving licence that too was not produced. .(v) Thelearned Judge, therefore, summed up the probabilities that a person named Mst. Shanti , who was widow of Ramlal, might have either gone away or expired and the plaintiff was intending to take advantage thereof . The learned Judge observed that whatever be the reason, the plaintiff has failed to prove herself as allottee and, therefore, it could not be expected from the defendant to show as to who the allottee Mst. Shanti widow of Ramlal was or as to how and when the obliterations and changes were made in the list and the allotment letters? .(d) Thelearned Judge dealt with the findings of the trial Court based only on the oral evidence of the plaintiff and found the same to be erroneous and found that the plaintiff was not entitled for any decree even if other issues were decided against the defendants. .(e) On the considerations aforesaid, the learned Appellate Court reversed the decree passed by the trial Court on 8.1984 and dismissed the suit. 13. The Judgment and decree passed by the Appellate Court dated 8.1984 have been assailed in the present appeal by the plaintiff Mst. Shanti. This Court while admitting the appeal on 19.1984, found and formulated the following substantial question of law to be involved in this appeal:- "Whether a Judgment passed on the point which was not specifically raised in written statement and no cross-examination was made on that point is sustainable?" 14. The aforesaid substantial question of law in abstract form has been formulated as suggested by the appellant in the memo of appeal in para 11 (b) and the ground urged in relation to this question to the effect that nowhere it was mentioned in the written statement that Mst. The aforesaid substantial question of law in abstract form has been formulated as suggested by the appellant in the memo of appeal in para 11 (b) and the ground urged in relation to this question to the effect that nowhere it was mentioned in the written statement that Mst. Shanti has been shown as widow of Ramlal and she was not that lady because she was not a widow and no cross-examination was made of the appellant on this question. 15. The learned Counsel for the appellant has submitted that the plea regarding the appellant being not a widow and, therefore, not answering the description of the allottee in the letter was never raised in the trial by the defendant and learned Appellate Judge has seriously erred in considering this difference in marital status to non-suit the plaintiff . She has not been cross-examined on this aspect at all and the learned Judge was, therefore, not right in relying upon this aspect for reversing the decree passed by the trial Court which has otherwise been passed after thorough consideration of the entire record. The learned Counsel has also submitted that the material on record shows it clearly that Ramlal was the alias of Hetram, the husband of the appellant and the defendants evidence was shaky and does not disprove the plaintiff s case of being the allottee of the plot in question. The learned Counsel has also submitted that the plaintiff was residing at the plot in question after having constructed a residential house since the year 1975 and would be rendered homeless if deprived of the same at this stage. The learned Counsel for the respondent State has supported the Judgment and decree passed by the Appellate Court. 16. The substantial question of law formulated by this Court requires consideration of the question as to whether the Judgment has been delivered by the Appellate Court on a point which was not specifically raised in the written statement nor put in cross-examination. The point to which the substantial question of law refers in the present case remains only the aforesaid point that the aspect of "the appellant was not a widow and, therefore, the allotment letter did not refer to her" was not specifically pleaded in the written statement. 17. The point to which the substantial question of law refers in the present case remains only the aforesaid point that the aspect of "the appellant was not a widow and, therefore, the allotment letter did not refer to her" was not specifically pleaded in the written statement. 17. Having carefully examined the entire record including the pleadings and the evidence of both parties, this Court is clearly of the opinion that the aforesaid substantial question of law does not even arise in this case for consideration. In any case, the formulated question specifically deserves to be answered against the appellant and the present appeal deserves to be dismissed. 18. The plea taken in the written statement has been reproduced hereinbefore which shows it clearly that the defendant State has set up the case specifically and in no uncertain terms that the allotment letter was in the name of one "Mst. Shanti-Ramlal" and that the plaintiff has attempted to take advantage of identity of her name with the name of the allottee. It has also been specifically raised that the alias used with the name of her husband Hetram as Ramlal was put forward only to conceal the facts and to claim the status of allotee in place of the real allottee. 19. None of the parties to the litigation, the plaintiff and the defendant, were at any doubt about the case set up by the other party and the case that they were required to meet. The plaintiff was claiming herself to be the allottee and the defendants were claiming that the allottee was somebody else. The defendants also claimed that the allottee Mst. Shanti was allotted plot No. 413 and the disputed plot No. 35 was allotted to Mst. Munni but with alterations in the records the plot numbers were inter-changed. 20. Therefore, there are two face of the dispute. One, about the identity of the allottee and secondly about the identification of the plot allotted. However, this second line of dispute of correct plot number becomes secondary for the reason that the plaintiff was claiming the rights over plot No. 35 only and not claiming any relief against Mst. Munni and moreover for the reason that the defendants have denied any allotment at all having been made to the plaintiff . Primarily, therefore, there remains once dispute for consideration in this case about the identity of the allottee. Munni and moreover for the reason that the defendants have denied any allotment at all having been made to the plaintiff . Primarily, therefore, there remains once dispute for consideration in this case about the identity of the allottee. 21. The allotment is definitely in the name of one Mst. Shanti and the plaintiff s name is also Mst. Shanti. The allotment letter refers to the husbands name of allottee to be Ramlal. Without entering into the controversy, whether it was referred to "widow of Ramlal" or "wife of Ramlal", firstly, it is apparent that the onus was heavy upon the plaintiff to establish that she was the same allottee because her husbands name was admittedly, Hetram. The plaintiff claimed that her husband Hetram was also known as (aka) "Ramlal". In view of the controversy involved in the case, this aspect that Hetram-was-also-known-as-Ramlal became the prime point of controversy and on this, the plaintiff has miserably failed as found by the Appellate Court after appreciation of evidence on record. 22. Nothing at all has been produced on record to show that "Ramlal" stood aka for "Hetram". Material direct evidence of Ration Card and Voter List as claimed to be containing such name "Ramlal" have not been produced. Hetram was alleged to be having a driving licence also but the same was not produced. The learned Appellate Judge has rightly drawn an adverse inference against the plaintiff for failing to produce the directly relevant material evidence in her power and possession. The consideration adopted by the learned Appellate Judge remain valid for a finding on the disputed question of fact as involved in the present case. 23. While recording the aforesaid finding against the appellant on the basis of the material on record, the learned Appellate Judge has also referred to the fact that it was against the normal human conduct for the plaintiff to have not sought correction of her description if she was the very person whom the allotment letter referred and where she was shown as a widow. The objection sought to be raised by the appellant that this point has been taken up without pleading and cross-examination is hollow and baseless. The objection sought to be raised by the appellant that this point has been taken up without pleading and cross-examination is hollow and baseless. This aspect of conduct was a relevant factor pointed out by the learned Appellate Judge while appreciating and considering the weight of evidence and it refers to a conduct which does not conform to normal human behaviour. A civil Court recording findings of fact, is required to proceed on the basis of material on record and to arrive at a conclusion after duly appreciating and weighing the evi