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2007 DIGILAW 2926 (ALL)

BRAHMA NAND SATI v. STATE OF UTTARAKHAND

2007-12-05

RAJESH TANDON

body2007
RAJESH TANDON, J. Heard Sri Dinesh Gahtori, Counsel for the appellant. 2. By the present Second Appeal filed under section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and order dated 15. 3. 2007 passed by the District Judge, Rudraprayag in Civil Appeal No. 3 of 2006 State of Wtaranchal v. Brahma Nand Sati and others arising out of Civil Suit No. 11 of 2000 Sri Bramha Nand Sati and others v. State of Uttarakhand and others. 3. Briefly stated, a suit was filed by the plaintiffs/appellants being Civil Suit No. 11 of 2000 Sri Bramha Nand Sati and others v. State of Uttarakhand and others praying for the following reliefs: @hindi = 4. According to the plaintiff/appellants, they are permanent resident of Village Jhalimath (Sari), Patwari Circle Sari, Tehsil and District - Rudra-prayag. Village Jhalimath is a revenue village and it comes under the Non Zamin-dari Abolition Khasra No. 151 (Settlement No. 239 ). Earlier it was in the name of State of Uttar Pradesh. Khasra No. 151 consists the area of 6 Nali and 13 Mutthi land and adjoining land is of the plaintiff and other villagers. On the said land, there is Gaushala and houses of the plaintiff for a long time. Along with the plaint, the plaintiff has annexed a map, where Khasra No. 151 has been shown by letters A, B, C and D and in this area, there is Well, which gets filled up in the rainy season and water becomes available to the cattle of the villagers. Apart from that well, the villagers have no other source of water. Further, it has been stated that the villagers kept their cattle on that Khasra from a long time. Plaintiff has submitted that in the month of October, 2000, officials of the State had come to inspect the land of Khasra No. 151 for construction of the Patwari Chauki, and as soon as the plaintiffs got this information, they filed an application in the office of Sub District Magistrate, Rudraprayag on 23. 10. 2000, where the prayer has been made not to construct any Patwari Chauki on the said land and to construct the Chauki, where the earlier Chauki was situated. When the plaintiffs sought the copy of the Khatauni, they refused their request to give the same. 10. 2000, where the prayer has been made not to construct any Patwari Chauki on the said land and to construct the Chauki, where the earlier Chauki was situated. When the plaintiffs sought the copy of the Khatauni, they refused their request to give the same. In the month of November, 2000, defendant No. 2, who is a contractor by profession came and started leveling the land for construction of the Patwari Chauki and collected the material for building the same. Plaintiffs again moved an application on 6. 11. 2000 before the District Magistrate, Rudraprayag and District Magistrate directed the Sub District Magistrate, Rudraprayag to verify the said matter and directed to stay the construction of the Patwari Chauki at Sari until and unless the site inspection is done. Despite the said order, defendant No. 2 did not stop the construction and he laid the foundation for the Patwari Chauki on 9. 11. 2000. Plaintiffs and other villagers instructed the Contractor not to construct the Chauki as there is stay order of the District Magistrate, but he started threatening the plaintiff and did not stop the construction. Plaintiffs have stated that the construction work is still going on, thus, the plaintiffs have filed the suit along with Application under Order XXXIX Rules land2ofthecp. c 5. Defendant No. 1 has contested the suit by filing a written statement Paper No. 30 Ka denying all the averments contained in the plaint. In the additional pleas, the plaintiffs have stated that Khasra No. 151 Non Z. A. (Present Khasra No. 239) is State land, where neither any Gaushala nor the same is in possession of the plaintiffs, nor there is any well. Further, it has been stated that as there is a public Gauchar, Panghat, this vests in the State, which can be used by the State at any moment and if any Patwari Chauki is constructed over there, it will not effect the easementry rights of the plaintiffs. It has further been stated that the Chauki is being constructed on the proposal of the Gram Sabha and there is no land in the Centre for Patwari Chauki. It has further been stated that incorrect application had been given to the District Magistrate just to confuse him and no stay order had been granted by the District Magistrate for stopping the construction. It has further been stated that incorrect application had been given to the District Magistrate just to confuse him and no stay order had been granted by the District Magistrate for stopping the construction. It has further been stated that on the said place, the Patwari Chauki is ready and therefore, the suit of the plaintiff is liable to be rejected. 6. On behalf of the plaintiffs, per list 10 Ga Paper No. 1 to 10 i. e. Application dated 6. 11. 2000 to the District Magistrate, Rudraprayag, 10 Ga/4 Copy of the order dated 4. 3. 1980 Assistant Commissioner Chamoli, Paper No. 10 Ga/s S. D. O. Chamoli dated 3. 6. 1953, Paper No. 10ga/6 certified copy of the Bhu Rajaswa Kshetra, 10ga/7 copy of the order dated 7. 5. 1951 Assistant Collector Chamoli, 10ga/8 certified copy of the Bhu Rajaswa Kshetra, 10 Ga/9 to 10 Ga/12 Report of the Kanoongo along with map of Bhu Rajaswa Kshetra and order passed on that, 10 Ga/13 application dated 23. 10. 2000 moved, towards Sub District Magistrate, Rudraprayag. 7. Defendant No. 2 has filed Paper No. 16 GA/6 copy of Khasra and Paper No. 16ga/5 Bhurajasva Kshetra issued by Patwari. Defendant No. 1 has filed per List 28 Ga Paper No. 28 Ga/2 copy of the Khatauni and copy of the Bhu Rajaswa Kshetra. 8. On the pleadings of the parties, the Trial Court has framed following issues: @hindi = 9. While deciding the issues No. 1, 2 and 3, the Trial Court has placed reliance on the order dated 25. 5. 1991 passed in Suit No. 29 of 1951, order passed in Suit No. 25 of 1951 and the order passed on -3. 6. 1953 in Suit No. 276 of 1952, which have been refused. Further the Trial Court has recorded the finding to the following effect : @hindi = 10. As will appear from the aforesaid, in absence of any documentary evidence produced by the defendants showing that the easementry rights of the plaintiffs will not be affected, the Trial Court has recorded a finding that if the permission has been given for construction of the Patwari Chauki, definitely the rights of the plaintiffs will get affected. The issues have been decided in favour of the plaintiffs and against the defendants. 11. The issues have been decided in favour of the plaintiffs and against the defendants. 11. While deciding the Issue No. 4 as to whether plaintiffs have right to file the suit, Trial Court has recorded a finding that the plaintiffs have right to file the suit as no rules or case laws have been produced by the defendants so that it can be said that the plaintiffs have no right to file the suit, thus, the Trial Court has found no force in the contention of the defendants. This issue has been decided in negative on behalf of the defendants. 12. While deciding the issue No. 5 as to whether the suit is bad due to non-service of notice under section 80 of the C. P. C. , trial Court has placed reliance on the application Paper No. GA 11 filed under section 80 (2) of the C. P. C. , which was disposed of on 15. 11. 2000 holding that after following the prescribed procedure, permission to file the suit shall be granted. It shows that the plaintiffs have been given permission to file the suit under section 80 (2) of the C. P. C. Against the said order, neither any revision has been filed by the defendants, nor any case law has been adduced before the Court so that it can be established that the plaintiffs cannot be exempted from the order passed under section 80 (2) of the C. P. C. Thus, the Trial Court found no force in the contention of the defendants and has decided this issue against the defendants. 13. While deciding the Issue No. 6 as to whether the plaintiffs are entitled to get any relief, the Trial Court has recorded a finding to the following effect: @hindi = 14. As will appear from the aforesaid, the Trial Court has recorded a finding that the plaintiffs are entitled to get the relief. 15. After recording the said findings, the Trial Court has decreed the suit of the plaintiff on 18. 5. 2006 and has directed the defendants not to raise any construction over the Khasra No. Non Z. A. 151 (Present Khasra No. 239), situate at Village Jhali-math (Sari), Patwari Circle Sari, Tehsil and District Rudraprayag. 16. Against the aforesaid order, an appeal was preferred by the defendants being Civil Appeal No. 3 of 2006 State of Uttaranchal v. Brahmanand Sati and others. 16. Against the aforesaid order, an appeal was preferred by the defendants being Civil Appeal No. 3 of 2006 State of Uttaranchal v. Brahmanand Sati and others. The appeal was partly allowed observing that in Khasra No. 151 (new Khasra No. 239) whatever construction has been made shall not be demolished and construction will remain there and the rest of the land shall be utilized by the plaintiffs for eas-mentry rights. 17. As will appear from the aforesaid, since the Courts below have done justice with both the parties, therefore, no question of law arises so as to interfere in the Second Appeal and the appeal deserves to be dismissed under Order XLI Rule 11 of the Code of Civil Procedure. 18. Consequently, Second Appeal is dismissed. No order as to costs. Appeal Dismissed. .