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2012 DIGILAW 481 (RAJ)

Gaffar Khan v. Nagar Palika, Dausa

2012-02-21

PREM SHANKER ASOPA

body2012
JUDGMENT 1. - Heard learned counsel for the plaintiff appellants. 2. This second appeal under Section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 21st September, 2006 passed by Civil Judge (Jr.Div.) Dausa in Civil Suit No.81/1996, Gaffar Khan and Ors. v. Municipal Council, Dausa and Anr. dismissing the suit of the plaintiff-appellants filed for mandatory permanent injunction which remained upheld in Civil Regular First appeal No.22/2011 as the Addl. District Judge , Dausa vide his judgment and decree dated 7th September, 2011 has dismissed the appeal. 3. Briefly stated the facts of the case are that on 1st October, 1996 the plaintiff-appellants filed a civil suit for mandatory permanent injunction in the trial court with the averments that their fore-fathers were having possession over the premises in dispute situated at Barkat Statute since 80 years where the Flour Mill and Fodder Cutting Machine were established. Subsequently, they have taken electric connection 45 years back. The further case of the plaintiff-appellants was that in the Patta issued by the Municipal Council in the year 1965 in relation to the land measuring 44' x 18' there is mention of the fact of 'Fodder Cutting Machine'. Therefore, the plaintiffs are entitled to retain possession of the land and the Municipal Council, Dausa, by way of permanent injunction be restrained from evicting them from the land in dispute. 4. In the written statement, defendant respondents came with the averments that the land in dispute is in the ownership of the municipality and the plaintiffs have no legal right over the same and as such, they are not legally entitled to claim any relief. 5. On the basis of the pleadings of the parties, following issues were framed:- In support of the averments in the plaint, the plaintiffs examined PW. 1 Noor Mohammad, PW.2 Mannu Khan, PW.3 Wali Mohammad and PW. 4 Gordhan and further produced documentary evidence including Patta issued by the Municipal Council, Dausa. 6. In support of their case, the defendant-respondents examined DW.1 Laxmi Narayan. 7. The trial court after hearing both the parties and taking into consideration the evidence of the parties decided issue nos. 1,2,3 and 4 against the plaintiff appellants and issue no.5 against the defendant-respondents and thus, dismissed the suit of the plaintiff-appellants vide judgment and decree dated 21st September, 2006. 8. 7. The trial court after hearing both the parties and taking into consideration the evidence of the parties decided issue nos. 1,2,3 and 4 against the plaintiff appellants and issue no.5 against the defendant-respondents and thus, dismissed the suit of the plaintiff-appellants vide judgment and decree dated 21st September, 2006. 8. Feeling aggrieved of the judgment and decree of the trial court, the plaintiff-appellants filed civil regular first appeal before the first appellate court. The first appellate court after discussing the evidence in detail came to the conclusion that simply because a Fodder Cutting Machine has been shown in the map annexed with the Patta, out side the land measuring 44' x 18' showing the nearby place the same cannot confer any right to the appellants and thus, affirming the findings of the trial court has dismissed the first appeal vide judgment and decree dated 7th September, 2011. 9. Before proceeding further it would be relevant to reproduce the relevant paragraphs of the judgment of the first appellate court discussing the evidence of the parties as under:- 10. Submission of the counsel for the plaintiff appellants is that the fact regarding mentioning of the Fodder Cutting Machine in the map annexed to the Patta issued by the Municipality clearly proves the possession of the plaintiff appellants over the land in dispute and therefore, they are entitled for grant of injunction in their favour and both the courts below have committed error in not granting injunction. 11. I have gone through the record of the second appeal and further considered the aforesaid submission of the counsel for the plaintiff appellants along with the judgments of the courts below and on consideration of the same I am of the view that simply mentioning the fact of Fodder Cutting Machine in the map annexed to the Patta out side the land measuring 44' x 18' showing the nearby place neither proves possession of the plaintiff-appellants on the land in dispute nor the same will be lawful possession of the plaintiff appellants. Therefore, both the courts below have rightly dismissed the suit as well as the first appeal. 12. No substantial question of law is involved in this second appeal and the same deserves to be dismissed. 13. Consequently, the second appeal is, dismissed.Appeal dismissed. *******