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2011 DIGILAW 323 (RAJ)

Kirodi Lal v. Union of India

2011-02-11

NARENDRA KUMAR JAIN

body2011
JUDGMENT 1. - Heard learned counsel for the appellants. 2. Plaintiffs-appellants filed a suit for permanent injunction in respect of property in dispute in the trial court against the defendants, which has been dismissed by the trial court. Judgment and decree passed by the trial court has been affirmed by the first appellate court. Hence, this second appeal has been preferred on behalf of the plaintiffs-appellants. 3. Submission of learned counsel for the appellants is that land in dispute was lawfully allotted by Gram Panchayat to the plaintiffs and thereafter they raised construction of the shops. Since, the appellants were in possession of the property in dispute, therefore, suit for injunction ought to have been decreed by both the courts below and both the courts below have committed an illegality in rejecting plaintiffs' suit, therefore, this is a fit case for interference in the finding of both the courts below. 4. I have considered submissions of learned counsel for the appellants in the light of reasons assigned by both the courts below for rejecting the plaint of the appellants. 5. Trial court framed nine issues. Issue No. 2 was, "Whether the disputed property is separate from Railway Department and Railway Track?" Trial court after considering oral and documentary evidence decided this issued against the plaintiffs and finding of the trial court has been affirmed by the first appellate court. This issue and other issues, in the facts and circumstances of the present case, are relating to questions of facts and there is concurrent finding of fact by both the courts below which cannot be interferred with by this Court in second appeal under Section 100 C.P.C. 6. Apart from above, it is relevant to mention that as per Rule 269(2) of the Rajasthan Panchayat and Nyay Panchayat General Rules, 1961, the land in dispute could not have been allotted or sold by Gram Panchayat, as the property in dispute was falling within 100 feet of a railway line. Similar is the provision in Rule 161(2)(a) of the Rajasthan Panchayati Raj Rules, 1996, which reads as under: "161. Exclusion of certain categories of Abadi land from the power of sale:- (1)................... (2) The Panchayat shall neither sell any Abadi land nor allow Pakka structure within the following specified limits:- (a) One hundred feet of a railway line. (b)........... (c)........... (d)..........." 7. Exclusion of certain categories of Abadi land from the power of sale:- (1)................... (2) The Panchayat shall neither sell any Abadi land nor allow Pakka structure within the following specified limits:- (a) One hundred feet of a railway line. (b)........... (c)........... (d)..........." 7. Exhibit-1 is the map annexed with the plaint wherein plaintiffs have shown the disputed property within 100 feet from the railway line. In these circumstances, even if there was allotment in favour of the plaintiffs-appellants in respect of property in dispute, then the same was contrary to statutory rules. Learned trial court has also observed that P.W. 2 has admitted in his statement that when he took permission, his wife was Sarpanch at that time. Findings of both the courts below are based on proper appreciation of evidence. I do not find any illegality or perversity in the said findings of both the courts below. 8. No substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine.Appeal dismissed. *******