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2008 DIGILAW 2619 (RAJ)

Bal Kishan v. Achaldas

2008-12-01

VINEET KOTHARI

body2008
JUDGMENT 1. - This second appeal has been filed by the plaintiff Balkishan and ors. aggrieved by the judgment of the first appellate court dated 18.07.1991 whereby the first appellate Court of learned Additional Dist. Judge No. 1, Jodhpur allowed the defendants' appeal against the judgment and decree of the learned trial Court dated 11.07.1980 by which the learned trial Court of Additional Civil Judge, Jodhpur decreed the suit No. 212/1975 (664/1974) Chhela Ram and Ors. v. Achal Das and Ors. 2. The plaintiffs claimed in the suit that the allotment of plot to the defendants by the Municipal Council, Jodhpur of a plot of land situated near Baiji Ka Talab, Jodhpur was illegal inter alia on the ground that the said plot was valued more than Rs. 500/- and, therefore, as per Section 80 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act), such allotment made on 24.07.1974 could not be made without obtaining prior sanction from the Collector. The plaintiffs also claimed in the suit that the said land being Nazul land belonged to the State Government and since it was placed for disposal with the Municipal Council, such sanction under Section 80 of the Act was necessary. The plaintiffs also claimed that on the plot situated adjacent to the said disputed plot, the plaintiffs had already constructed their residential house and had windows opening on the said plot and, therefore, their easementary rights would be adversely effected if the said allotment is made in favour of the defendants and they are allowed to raise construction over the said plot. 3. The learned trial Court decreed the said suit on 11.07.1980, but the first appeal of the defendants came to be allowed by the learned first appellate Court on 18.07.1991. Being aggrieved by the same plaintiffs preferred this second appeal before this Court under Section 100 C.P.C. in which following two substantial questions of law came to be framed by this Court while admitting this appeal : "(i) Whether the first appellate court was wrong in holding that the disputed land was a Government land which has been vested in the Municipality without any pleading or evidence? (ii) Whether the lower appellate Court was wrong in applying Section 33 of the Easement Act by holding that substantial injury will not be caused to the plaintiffs by the closure of the windows? 4. (ii) Whether the lower appellate Court was wrong in applying Section 33 of the Easement Act by holding that substantial injury will not be caused to the plaintiffs by the closure of the windows? 4. The learned counsel for the appellants Mr. Jitendra Chopra urged that in absence of sanction from the Collector, Jodhpur for allotment of said plot on 24.07.1964, the said allotment was void and could not be upheld. He further submitted that from the evidence, it was clear that the easementary rights of the plaintiffs were to be adversely affected if the allotment was upheld and they were allowed to raise construction over he said plot of land. He referred to provisions of Section 80 of the Act in this regard. He also relied upon the following submissions (sic.) in support of his submissions (i) Tara Chand and anr. v. Pallu Nath, 1996(3) CCC (Raj.) 244 . (ii) Abdul Samad Mukhadum Baksh Sheikh v. Smt. Sudha Anand Parakhe, AIR 1982 Bombay 585 . (iii) Ved Prakash v. Marudhar Services Limited, 2003(3) CCC 690 Delhi . (iv) LRs. of Meera Bux and Ismail and Ors. v. Ranchod Das and Legal Representatives of Alladeen, 1987(II) RLR 108 . 5. On the side opposite, Mr. Arvind Samdariya, learned counsel for the respondents submitted that firstly the plaintiffs failed to establish that the land in question was Nazul land and having been vested in the Municipal Council, required prior sanction of the Collector under Section 80 of the Act. Even assuming that such sanction was required, he urged that mere absence of such prior sanction would not invalidate allotment in favour of the allotment. He relied upon the decision of this Court in the case of Kalu Chand v. State of Rajasthan and Ors., reported in 1997(3) RLW 1567 . Para 45 of the said judgment is reproduced hereunder for ready reference : "45. I am of the view that argument raised on behalf of the petitioner has substance. He relied upon the decision of this Court in the case of Kalu Chand v. State of Rajasthan and Ors., reported in 1997(3) RLW 1567 . Para 45 of the said judgment is reproduced hereunder for ready reference : "45. I am of the view that argument raised on behalf of the petitioner has substance. Suffice it to say in this regard that under the provisions of Rule 30 of the Rules of 1974 in respect of prior approval of Director of Local Bodies, Rajasthan holding the present transfer of plot in question in favour of the petitioner to be null and void, acts done in negligence of the provisions of Rule 30 of Rules of 1974 by respondents No. 2 and 3 leading to serious injustice to the petitioner who has no control over the authorities will make compliance of the aforesaid rule only directory although the authorities who acted in violation of Rule 30.are liable to be punished. Acts and omissions of the official in not complying with Rule 30 of the Rules of 1974 will not affect the validity of the transfer made in favour of petitioner who has no control over them in making compliance of the said rule." He further submitted that the plaintiffs failed to establish their easementary rights over residential house constructed by them and there was no pleading to that effect and even assuming that the said cause was pleaded, it was premature on the part of the plaintiffs to prevent allotment of the plot in question in favour of the defendants and also permission to raise construction and, therefore, the learned first appellate Court was justified in reversing the findings of the trial Court and holding in favour of the defendants while allowing (sic.) the appeal of the plaintiffs that the plaintiffs could not challenge allotment and construction by the defendants on the said grounds. 6. I have heard the learned counsel at length and perused the judgments cited at the Bar and gone through the impugned judgment of the Courts below. 7. This Court is satisfied that the first appellate Court was justified in dismissing the suit of the plaintiffs on the grounds stated in the impugned judgment. 6. I have heard the learned counsel at length and perused the judgments cited at the Bar and gone through the impugned judgment of the Courts below. 7. This Court is satisfied that the first appellate Court was justified in dismissing the suit of the plaintiffs on the grounds stated in the impugned judgment. Firstly, there was no evidence led by the plaintiffs to the effect that the said land was vested by the State Government under section 92(2)(e) of the Act and, therefore, for disposal of the said land in question, prior sanction of the Collector, Jodhpur was mandatory. Secondly, as rightly urged by the learned counsel for the defendant that even if such sanction is required to be held necessary in view of valuation of the property being more than Rs. 500/-, the same was merely an irregularity and could not render the allotment of plot in question on 24.04.1974 in favour of the defendants as invalid. The burden was on the plaintiffs to establish that the allotment in favour of the defendants was contrary to law and was, therefore, void. In the absence of any evidence led by the plaintiffs, the first appellate Court cannot be said to have committed any error in holding that such a condition for obtaining of sanction from the Collector, Jodhpur was a condition precedent and allotment in absence of the same could not be rendered to be invalid. 8. As far as question of easementary right of the plaintiffs was concerned, the learned first appellate Court has held that the plaintiffs failed to establish before the learned trial Court that by allotment of said plot in question in favour of the defendants, the windows existing on their building are bound to be closed. No such evidence was led by the plaintiffs before the learned trial Court and, therefore, the first appellate Court rightly held that the said burden was not discharged by the plaintiff to establish that the allotment was invalid and it was rather premature for the plaintiffs to prevent such allotment in favour of the defendants. 9. In view of this, the present second appeal of the plaintiff is found to be devoid of merit and the substantial questions of law framed by this Court above deserve to be answered against the plaintiffs-appellants. Consequently, this second appeal is dismissed with no order as to costs.Second Appeal Dismissed. *******