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2006 DIGILAW 252 (MP)

MEERA JAMIL v. BHOPAL VIKAS PRADHIKARAN

2006-02-15

ABHAY M.NAIK

body2006
( 1 ) SHORT facts giving rise to the present appeal are that initially the plaintiff/appellant No. 1 instituted a suit for perpetual injunction with respect to the land comprised in Survey No. 244, in area 9. 70 decimal, situated at Village Shahpura, Tehsil Huzoor, District Bhopal. Subsequently, other plaintiffs/appellants joined in the suit. The land was stated to be owned by Prem Chand Saxena, on the strength of the registered sale deed dated 22-12-1957. After his death, the suit land devolved upon the present appellants being his legal heirs. Their names were duly mutated in the revenue records. The suit land was duly demarcated in the year 1988 by the Nazur Officer, Bhopal. The demarcation was again made by the Court of Tehsildar Huzoor on 5-6-1995 in presence of the Superintending Engineer and Executive Engineer of the Bhopal Development Authority. It has been further averred in the plaint that the Government of Madhya Pradesh allotted the land adjacent to the suit land for the purpose of rehabilitation of hutment dwellers of Ishwar Nagar. However, the Chief Executive Officer of Bhopal Development Authority started making encroachment on the suit land under the garb of aforesaid process of rehabilitation. He has illegally and unauthorisedly carved out plots in the suit land despite objections by the plaintiffs. The suit was initially filed in the month of June, 1995. Subsequently, by way of amendment it has been inserted that the defendant No. 1 Bhopal Development Authority has settled about 125 jhuggiwalas' on the suit land. It is further averred that the said authority has constructed roads and laid down pipe lines on the suit land for the supply of water to such 'jhuggiwalas'. This action is stated to have been taken by the employees of the Bhopal Development Authority after issuance of order of temporary injunction against it. The plaintiff initially prayed for issuance of permanent injunction from making any interference into her possession over the suit land. However, by way of amendment a decree for mandatory injunction has been sought against the defendants for removal of 'jhuggiwalas' and restoration of possession in favour of the original plaintiff as well as plaintiffs/appellants No. 2 to 5 who were impleaded subsequently in the suit as co-plaintiffs. ( 2 ) THE suit has been opposed by the defendants. However, by way of amendment a decree for mandatory injunction has been sought against the defendants for removal of 'jhuggiwalas' and restoration of possession in favour of the original plaintiff as well as plaintiffs/appellants No. 2 to 5 who were impleaded subsequently in the suit as co-plaintiffs. ( 2 ) THE suit has been opposed by the defendants. It has been specifically averred that no piece of land comprised in the suit land has been allotted by the defendants. It is specifically averred that the land comprised in Survey Nos. 34 and 234/1/1 has been allotted for the rehabilitation of 'jhuggiwalas'. The defendants denied that they have been made any encroachment or have made allotment of any of the part of the disputed land or have constructed roads on it or have laid down pipe lines. ( 3 ) THE suit was tried ex parte against the State of Madhya Pradesh since it was not represented by its lawyer. ( 4 ) LEARNED Trial Court after recording the evidence decreed the suit in favour of the plaintiffs. The plaintiffs are found to be entitled to seek restoration of possession of the suit land from the defendants. Learned Trial judge found that the plaintiffs established that the defendants have rehabilitated the Jhuggiwalas on the suit land. ( 5 ) THE defendants/respondents Nos. 1 to 3 preferred an appeal which has been allowed by the Court of Seventh Addl. District Judge, Bhopal. Learned Lower Appellate Court has held that the plaintiffs have failed to establish that the Bhopal Development Authority has caused rehabilitation of 'jhuggiwalas' on the suit land. Accordingly, it was held that the suit of the plaintiffs is bad in law for non-joinder of 'jhuggiwalas' who were stated to have occupied the suit land. Accordingly, the learned Lower Appellate Court dismissed the suit of the plaintiffs. ( 6 ) AGGRICVED by the aforesaid, this appeal has been preferred which has been heard on the following substantial questions of law:- (i) Whether in the facts and circumstances of the case, the finding of the learned First Appellate Court below that appellants are not owners of Khasra No. 244, area 9. 70 acres of land situate in Village Shahpura was perverse and arbitrary being based on assumption that Smt. Meera Jamil had lost her rights in such property by marrying a Muslim without any plea or evidence on that point? 70 acres of land situate in Village Shahpura was perverse and arbitrary being based on assumption that Smt. Meera Jamil had lost her rights in such property by marrying a Muslim without any plea or evidence on that point? (ii) Whether in the facts and circumstances of the case, the finding of the learned First Appellate Court below that suit was incompetent as the plaint was not presented in person by Smt. Meera Jamil and was not signed personally by appellants 2 to 5 who had been transposed as plaintiffs later on was perverse and arbitrary? (iii) Whether the First Appellate Court had acted on irrelevant considerations in upsetting the findings of the Trial Court that the Bhopal Vikas Pradhikaran and other respondents had allotted disputed part of suit land to the Jhuggiwalas? (iv) Had the learned First Appellate Court below erred in insisting the inpleadment of all 125 Jhuggiwalas in the suit for possession? ( 7 ) AS regards substantial questions of law No. 1, it may be seen that the title of the plaintiffs with respect to the suit land comprised in Survey No. 244 has not been disputed by the defendants. Moreover, after the death of father of the plaintiffs, the suit land did devolve upon the plaintiffs which has not been disputed at all by the defendants. Prem Chand Saxena, the father of the plaintiffs/appellants, is stated to have died in the year 1965. Obviously, the plaintiffs being legal heirs of the deceased inherited the suit property. ( 8 ) THUS, the learned Lower Appellate Judge is found to have exceeded his jurisdiction by holding that Smt. Meera Jamil had lost her right in the suit land by marrying a Muslim. This was not a case of either party. Moreover, legal heirs of Prem Chand Saxena who inherited the suit land after the death of the later, did not stand divested and Smt. Meena Jamil was also not divested on account of her marriage with a Muslim subsequent to the acquisition of title by way of inheritance. Accordingly, the substantial question of law No. 1 is decided in favour of the appellants. ( 9 ) AS regards substantial question of law No. 2, Shri Ajay Mishra, learned Senior Counsel, appearing for respondent Nos. 1 to 3 fairly expressed that he did not wish to press this substantial question of law. Accordingly, the substantial question of law No. 1 is decided in favour of the appellants. ( 9 ) AS regards substantial question of law No. 2, Shri Ajay Mishra, learned Senior Counsel, appearing for respondent Nos. 1 to 3 fairly expressed that he did not wish to press this substantial question of law. Accordingly, the same is answered in favour of the appellants and the suit is not found to be incompetent on the alleged ground. ( 10 ) AS regards substantial questions of law Nos. 3 and 4, Smt. Menon, learned Senior Counsel, vehemently argued that the respondent No. 1 is instrumental in rehabilitating the 'jhuggiwalas' on the suit land. She referred to the statement of Jahid Jamil (P. W. 2) who is stated to be special power of attorney of the plaintiffs. This witness in Paragraph 3 has stated that the respondent No. 1 has allotted the suit land to the 'jhuggiwalas'. He has further stated that Government land was allotted for the purpose of rehabilitation but the Bhopal Development Authority has rehabilitated 'jhuggiwalas' on the suit land. He has also stated that pillars were constructed for the purposes of rehabilitation, and demarcation for this purpose was made in the presence of Shri Saxena, Executive Engineer and Sub Engineer of Bhopal Development Authority. In Paragraph 5 of his statement, this witness has again stated that the rehabilitation of 'jhuggiwalas' on the disputed land was made by Shri Saxena and Agrawal, who happened to be Executive Engineer and Superintending Engineer of Bhopal Development Authority. In Paragraph 11 of his statement, a contrary suggestion was made to him which was denied by him. ( 11 ) AS regards the evidence in rebuttal, the respondent No. 1 examined R. M. Saxena, its engineer. He has categorically stated that the land comprised in Survey No. 243/2/1 and Survey No. 34 is Government land which has been given to 'jhuggiwalas' for their rehabilitation. Area of this land was stated to be 38. 68 acres. He has further stated that a map was prepared of the land and, accordingly, the plotting was made. ( 12 ) SIMILARLY, the Executive Engineer has also been examined by the respondent No. 1 who has stated in Paragraph 2 of his statement that 'jhuggiwalas' were rehabilitated on the land comprised in Survey No. 243/2/1 and Survey No. 34. He has further stated that a map was prepared of the land and, accordingly, the plotting was made. ( 12 ) SIMILARLY, the Executive Engineer has also been examined by the respondent No. 1 who has stated in Paragraph 2 of his statement that 'jhuggiwalas' were rehabilitated on the land comprised in Survey No. 243/2/1 and Survey No. 34. Thus, the witnesses of Bhopal Development Authorities have nowhere admitted that the suit land was allotted to 'jhuggiwalas' by the said authority. Moreover, the plaintiffs have failed to make suggestion in the cross-examination that the suit land or any portion thereof was allotted to 'jhuggiwalas' by the Bhopal Development Authority and that the 'jhuggiwalas' occupied the suit land or part thereof at the behest of the said authority. The High Court of Calcutta in the case reported as A. E. G. Carapiet v. A. Y. Derderian AIR 1961 Calcutta 359 held that wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross- examination, it must follow that he believed that the testimony given could not be disputed at all. This is not merely a technical rule of evidence. It is a rule of essential justice. ( 13 ) MOREOVER, the Executive Engineer in Paragraph 5 of his statement, has categorically stated that the location of plot was not identified on the spot by any of the employees of the authority. Thus, the occupation of the disputed land or part thereof by 'jhuggiwalas' can not be said to be at the instance of the Bhopal Development Authority. The plaintiffs have failed to summon any record of the authority to establish that the land comprised in Survey No. 244 or any part thereof has been allotted by the authority to any of 'jhuggiwalas'. In the absence of any such record, the learned Lower Appellate court is not found to have committed any mistake in holding that the occupation of the suit land or part thereof by Jhuggiwalas, is not proved to be at the instance of the Bhopal Development Authority. ( 14 ) THE plaintiffs vide Paragraph 12-a (i) of the plaint has prayed for restoration of possession after removal of 'jhuggiwalas'. It may be seen that the plaintiffs have admitted that the suit land has been occupied by certain 'jhuggiwalas'. ( 14 ) THE plaintiffs vide Paragraph 12-a (i) of the plaint has prayed for restoration of possession after removal of 'jhuggiwalas'. It may be seen that the plaintiffs have admitted that the suit land has been occupied by certain 'jhuggiwalas'. Thus, without impleading such occupants, the suit of the plaintiffs can not be held to be maintainable. The authorities are not found to be instrumental expressly or impleadly in the action of 'jhuggiwalas' in occupying the suit land. ( 15 ) THE defendant/respondent No. 1 has also submitted an application under Order 41 Rule 27 of the Code of Civil Procedure before this Court, accompanied by the allotment cards in favour of 'jhuggiwalas'. They all pertain to various plots comprised in Survey Nos. 34 and 243/2/1/1. It is true that these documents can not be taken into consideration without deciding the application under Order 41 Rule 27 of the Code of Civil Procedure, ( 16 ) HOWEVER, since it has already been found that the plaintiffs have failed to prove that Bhopal Development Authority rehabilitated the 'jhuggiwalas' on the disputed land or that the action of 'jhuggiwalas' in occupying the suit land is at the instance of the said authority, I find that even without taking into consideration the application under Order 41 Rule 27 of CPC, and the accompanying documents, the suit of the plaintiffs against the present defendants/respondents is highly misconceived for want of joining the real occupants of the suit land. Since the occupation of the suit land by such 'jhuggiwalas' is not found to be at the instance of Bhopal Development Authority or the State of Madhya Pradesh, a prayer for allowing the plaintiffs to joint 'jhuggiwalas' in the present suit is also equally misconcieved. Moreover, no such application has been submitted before this Court to implead the necessary parties. The action of 'jhuggiwalas' in occupying the suit land is not proved to be at the behest of the State of Madhya Pradesh or the Bhopal Development Authority, so, the plaintiffs are left to the remedy of filing a separate suit against the real occupants before the Court having competent jurisdiction. Thus, substantial questions of law Nos. 3 and 4 are decided against the appellants. In the result, the appeal is dismissed, however, without order as to costs. .