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2011 DIGILAW 1604 (RAJ)

Ramavtar v. State of Rajasthan

2011-08-04

MAHESH BHAGWATI

body2011
Hon'ble BHAGWATI, J.—Challenge in this writ petition is to the order dt. 3.1.2011 rendered by Civil Judge (Jr. Division), Dausa, whereby he dismissed the application filed by the petitioner-plaintiff under Order 6 Rule 17 CPC to make amendment in the plaint. 2. Learned counsel for the petitioner canvassed that petitioner and respondent No. 4 were the co-owners of land bearing khasra No. 649/1525 admesuring 5 bigha 12 Biswa situated in front of Railway Gate No. 649/1525 admesuring 5 bigha 12 Biswa situated in front of Railway Gate No. 181, Dausa. Earlier the respondents No. 1 to 3 acquired the said land for the purpose of constructing Highway, but subsequently it was de-acquired. The revenue authoritis jointed the land of khasra numbers 578 to 590 and gave a new khasra No. 1458 of the whole land, showing the same to be agricultural land, but the land of the petitioner bearing khasra No. 649/1525 was not included in the changed khasra nos. The petitioner filed a suit for declaration and injunction in the year 1994, which was decreed in favour of the petitioner and respondent No. 4 and 31.5.1999 and the respondents were directed to declare the land as Abadi land and new khasra no. be given to the land of the petitioner and they were also restrained from demolishing the construction and taking possession of the said land. Learned counsel further canvassed that now the respondents have taken a decision to construct a new National Highway No. 11A from Dausa Railway Station over gate No. 181 and to link the same, the respondents are going to construct approach road, service road, railway over-bridge and drain. The respondents started construction in the land of the petitioner bearing khasra No. 649/1525 on 15.9.2009 and therefore, the petitioner filed a suit for injunction against the respondents and they were restrained from raising construction on the land of the petitioner. The petitioner filed an application seeking an amendment in the plaint and temporary injunction application with a view to unfold the complete details of previous changes made by the respondents and Revenue Department in khasra No., but the same has been dismissed arbitrarily by the learned Trial Court vide order dated 3.1.2011, hence the impugned order dated 3.1.2011 needs to be set aside and the writ petition filed by the petitioner deserves to be allowed. 3. 3. E contra, learned counsel appearing for the respondents defended the impugned order and stated the same to be just and apt. 4. Having considered the submissions made by the learned counsel for the parties, it is found that as per the report of Naib Tehsidar, Dausa dt. 8.12.2010, presently the land bearing khasra No. 649/1525 is not in existence. This is the old khasra no., which existed prior to settlement. Presently, the land in question, is related to khasra No. 1432, which belongs to Public Works Department and Irrigation Department. The land juxtaposed to land bearing khasra No. 1432 is the khasra No. 1458 and out of the entire land of this khasra No. 0.10 ha land belongs to Public Works Department and Irrigation Department. Rest of the land is entered in the name of Municipality, Dausa. The Dausa town is also situated on the land bearing khasra No. 1458, but so far as the land bearing khasra No. 649/1525 is concerned, this number does not exist at all the revenue record. Since the petitioner-plaintiff claims the land bearing khasra No. 649/1525 ad-measuring 5 bighas and 12 biswa to be his own and in the joint name of defendant Ram Chandra, he needs an amendment to be made in the plaint in the light of the report of Naib Tehsildar, but the learned Trial Court dismissed the application. 5. Learned counsel for the petitioner also took me through the entries of revenue record (Annexure-1), a copy of taking possession note issued by Land Acquisition Officer, PWD, building and Road, National Highway, Circle Jaipur (Annexure-2), letter addressed by the Executive Engineer, PWD, Division Dausa to Land Acquisition Officer, PWD Rural, Circule, Jaipur and the document issued by the Settlement Department and contended that the land bearing khasra No. 649/1525 ad-measuring 5 bigha 12 biswa was entered in the joint name of Ram Chandar and Ramavatar. Similarly, the X.En., PWD, Dausa wrote the letter to Land Acquisition Officer to acquire the land bearing khasra No. 649/1525 vide his letter dt. 8th March, 2010, which suggests that on 8th March, 2010 the land bearing khasra No. 649/1525 was existing and it was in the joint name of petitioner Ramavtar and respondent No. 4 Ram Chandar. 6. Similarly, the X.En., PWD, Dausa wrote the letter to Land Acquisition Officer to acquire the land bearing khasra No. 649/1525 vide his letter dt. 8th March, 2010, which suggests that on 8th March, 2010 the land bearing khasra No. 649/1525 was existing and it was in the joint name of petitioner Ramavtar and respondent No. 4 Ram Chandar. 6. The third argument advanced by the learned counsel for the petitioner is that the new number 1458 was made up of old numbers 578, 579, 580, 581, 582, 583, 58, 585, 586, 587, 588, 589 and 590, but this new number did not include khasra No. 649, whereas the new number was made up of said numbers including khasra No. 649. That stands proved by the entries in Jama Bandi of Samwat 2032-35, which tangibly reflects that the land of khasra No. 586 admeasuring 7 biswa and 649/1525 ad-measuring 5 bigha and 12 biswa was in the joint name of Ramchander and Ramavtar. 7. In view of above submissions of the learned counsel for the petitioner, the learned Trial Court is found not to have taken into consideration all these aspects and dismissed the application of the petitioners sans assigning any cogent and plausible reason. Learned counsel for the petitioner rightly submitted that the land bearing khasra No. 649/1525 existed and it was in the name of Ram Chandar and Ramavtar. This land existed till 8th March, 2010, which stands evinced from the letter (Annexure 3) of the Ex.En. PWD himself. Hence, the writ petition needs to be allowed and the impugned order deserves to be set aside. 8. for the reasons stated above, the writ petition succeeds and the impugned order dated 3.1.2011 stands set-aside. Learned Trial Court is directed to allow the petitioner-plaintiff seeking amendment in the plaint or to file the amended plaint, in accordance with the provisions of law. 9. Consequent upon the disposal of writ petition, the stay application, filed therewith,does not survive and that also stands disposed of.