Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1416 (RAJ)

Ambey Charan Sriwastava v. Municipal Corporation

2013-08-05

MOHAMMAD RAFIQ

body2013
JUDGMENT Hon'ble RAFIQ, J.—This is plaintiff's second appeal preferred against judgment and decree dated 04.11.2004 passed by learned Additional District Judge No.2, Jaipur City, Jaipur, whereby judgment and decree dated 07.10.1998 passed by learned Additional Civil Judge (Junior Division) No.5, Jaipur City, Jaipur, dismissing the plaintiff's suit for perpetual and mandatory injunction, has been affirmed. 2. Dispute pertains to a piece of land measuring 50.5' in east-west and 23.6' in north-south, (total area measuring 132.4 square yard), which the plaintiff-appellant claims to have purchased by registered sale-deed on 13.12.1989 from one Nathu Singh for consideration of Rs.75,000/-. The plaintiff-appellant claims that he was put in possession of this plot by said Nathu Singh at the time of execution of the sale-deed. At that time, defendant Municipal Corporation, without issuing any notice and providing opportunity of hearing, tried to dispossess him on 13.05.1996, and removed the tin-shed as well as stone slabs, with which the boundary was constructed. In those facts, the suit for perpetual and mandatory injunction was filed before the trial court. Both the trial court and the first appellate court held that the appellant has failed to prove his title over the disputed land and for that matter, title of Nathu Singh, from whom he claims to have purchased the disputed land and declined the prayer of injunction. 3. According to the plaintiff, Nathu Singh is the descendant of Thakur Ratan Singh, whose 'vanshawali' (pedigree) is given in Para 1 of the memo of appeal. The disputed property is situated in Chowkri Vishwashwarji, Rasta Patwari Mohalla, Telipara, Jaipur, which was originally owned by Thikana Bhojara. The said property has been entered in the city survey record of Samvat 1925 at Serial No.140 and was shown in exclusive possession and ownership of Thakur Ratan Singh. 4. Shri M.M. Ranjan, learned Senior Advocate appearing for the plaintiff-appellants, has argued that the courts below failed to appreciate the registered sale-deed as also the oral evidence of the plaintiff in true perspective. They erred in law in holding that even in a suit for injunction, title over the land in dispute was required to be proved. It is settled proposition of law that the plaintiff can seek injunction on the basis of his possession even if he does not have any title over the land in dispute or has a defective title. They erred in law in holding that even in a suit for injunction, title over the land in dispute was required to be proved. It is settled proposition of law that the plaintiff can seek injunction on the basis of his possession even if he does not have any title over the land in dispute or has a defective title. In fact, the plaintiff-appellant has proved his title by submitting the registered sale-deed (Exhibit-1 and Exhibit-2), which have remained un-rebutted, there being no denial by the defendants. In fact the Municipal Corporation did not even file the written statement nor did it produce any evidence contradicting assertion of the plaintiff. Learned courts below thus were wholly unjustified in not decreeing the suit in favour of the plaintiff. It is argued that learned courts below have failed to consider the case law cited before them by merely observing that they were not applicable to the facts of the present case. 5. Shri M.M. Ranjan, learned Senior Advocate, has argued that the learned courts below should have drawn an adverse inference against the Municipal Corporation for not producing the register of the entries maintained by it with regard to its properties in form no.23 under Rule 46(b) of the Rajasthan Municipal Accounts Rules, 1963. This land was neither vacant nor Nazul land in view of the entries of the properties maintained by the State Government, as is evident by the survey conducted by the State in Samvat 1925. It could not vest in the Municipal Corporation in the year 1959 when the Rajasthan Municipal Act came into force since at that time, the land was not a government land as defined under Section 80 of the Rajasthan Municipalities Act. The Municipal Council was bound to make entries in the register with regard to all immovable properties in its possession, or purchased or acquired by it, in the register maintained in form no.23 showing details. Non-production of proof thereabout should lead to the interference that this property was not entered therein. 6. Learned Senior Advocate argued that even otherwise the plaintiff and his predecessor-in-title, being in possession of the disputed land for last more than hundred years, acquired title by adverse possession. It is argued that the defendant-respondents have not produced any proof to show as to how and in what manner title of this land vested in the Municipal Corporation. 6. Learned Senior Advocate argued that even otherwise the plaintiff and his predecessor-in-title, being in possession of the disputed land for last more than hundred years, acquired title by adverse possession. It is argued that the defendant-respondents have not produced any proof to show as to how and in what manner title of this land vested in the Municipal Corporation. The plaintiff himself has been in peaceful possession over the disputed land for more than 15 years. 7. According to Shri M.M. Ranjan, learned Senior Advocate, this appeal raises substantial questions of law proposed in memo of appeal and the application filed subsequently. Therefore, the appeal be admitted and matter be decided afresh on merits. The impugned judgments passed by both the courts below be set-aside. 8. In support of his arguments, learned Senior Advocate has relied on judgments of the Supreme Court in Chief Conservator of Forests vs. Collector – AIR 2003 SC 1805 , Rajeevan vs. State of Kerala – AIR 2003 SC 1813 , Anathula Sudhakar vs. P. Buchi Reddy and Others – (2008) 4 SCC 594 , Subramanya Swamy Temple vs. V. Kanna Gounder – (2009) 3 SCC 306 and Rame Gowda vs. M. Varadappa Naidu – AIR 2004 SC 4609 . 9. Shri S.N. Kumawat, learned Additional Advocate General appearing for defendant-respondents, argued that although it may be true that the suit was proceeded ex-parte against the defendants. But even then, there was no obligation on the learned courts below to decree the suit just because the defendants failed to produce any evidence. It is settled law that the plaintiff has to prove his own case and cannot take the benefit of weakness of defendant. The plaintiff in the present case has failed to prove any title over the disputed land or for that matter, title of Nathu Singh, from whom he claims to have purchased the disputed land. The disputed land is in fact a government land and the plaintiff, in collusion with Nathu Singh, has tried to grab this land. The alleged sale-deed does not pass on any title to the plaintiff because Nathu Singh himself had no title. 10. It is argued that the disputed land is not covered by the alleged survey. No one has appeared to prove the survey report or the fact as to whether the land in dispute is covered by such survey report. The alleged sale-deed does not pass on any title to the plaintiff because Nathu Singh himself had no title. 10. It is argued that the disputed land is not covered by the alleged survey. No one has appeared to prove the survey report or the fact as to whether the land in dispute is covered by such survey report. Plaintiff has even failed to produce Nathu Singh, who sold this land to him, as a witness, in support of his case. 11. It is argued that Nathu Singh, the vendor of the disputed property, himself in the sale deed dated 13.12.1989 executed in favour of plaintiff-appellant, has made an endorsement to the effect that a title dispute between him and Municipal Corporation was pending in the court. That suit was dismissed in default and he took no steps to get the same restored. This appeal therefore deserves to be dismissed. 12. Learned Additional Advocate General has, in support of his argument, relied on the judgment of the Supreme Court in Nasib Kaur and others vs. Col. Surat Singh – (2013) 5 SCC 218 . 13. I have given my anxious consideration to rival submissions and perused the material on record. 14. No doubt, the suit in the present case was decided ex-parte, which is not uncommon with the Government or its agencies as litigants, but nevertheless the fact is that they were defendants before the trial court and the appellant was plaintiff. The plaintiff has to prove his case by his own evidence. His case cannot be taken as proved just because the defendants failed to produce any evidence. Although, if, in a given case, the plaintiff has, by producing evidence, discharged his burden of proving the case, onus will shift to defendants and in that event, it is for the defendants to prove their case by producing evidence in rebuttal. Sec.101 of the Evidence Act, 1872, provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Sec. 102 of the Act of 1872 provides that the burden of proof in a suit or proceeding lies on that person, who would fail if no evidence at all were given on either side. As per Section 103 of the Act of 1872, the burden of proof as to any particular fact lies on that person, who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 15. A cumulative reading of all the facts shows that it was the bounden duty of the plaintiff-appellant to prove his case rather than rely on the failure of the defendant to produce evidence in rebuttal. The survey report on which reliance is placed, does not conclusively prove the coverage of the disputed land inasmuch as no one has appeared to prove the facts that the land in dispute is covered by the alleged entry made in the said survey report. Moreover, the copy of report, which is produced, is not certified or attested copy. Said survey report was not even exhibited in evidence. Moreover, Nathu Singh in the sale-deed, which he executed in favour of the plaintiff on 13.12.1989, has made a categorical endorsement of the fact that a litigation was pending between him and the Municipal Corporation, Jaipur, regarding title of the disputed land. In fact, initially an injunction order was passed in favour of Nathu Singh on 31.08.1985 in the said Suit No.41/84 – titled Nathu Singh vs. Municipal Corporation. Subsequently, however, the suit was dismissed in default, a fact not disputed even by the learned Senior Advocate representing the plaintiff-appellant. 16. It is trite that no one can transfer better title then what he himself possesses. If the title of Nathu Singh was defective, the plaintiff-appellant would also not get the clear title. Contention therefore that in injunction suit, title is not required to be provided is liable to be rejected. The courts below have also concurrently held that the plaintiff-appellant could not even prove his title by evidence over the disputed land, in the light of the facts aforesaid. 17. Contention therefore that in injunction suit, title is not required to be provided is liable to be rejected. The courts below have also concurrently held that the plaintiff-appellant could not even prove his title by evidence over the disputed land, in the light of the facts aforesaid. 17. In that view of the matter, insistence of the plaintiff-appellant that an adverse inference be drawn against the Municipal Corporation for not producing its register of the properties maintained by it in form no.23 with reference to Rule 46(b) of the Rajasthan Municipal Accounts Rules, 1963. cannot be accepted. 18. The ratio of the judgments cited by the learned counsel for plaintiff-appellant, does not apply to the present case. In Chief Conservator of Forests, supra, the Supreme Court held that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party, who denies his ownership. But in this very judgment, it was held that the presumption, which is rebuttable, is attracted only when the possession is prima facie lawful and when the contesting party has no title. In that case the appellant State could not prove its title to the lands, but in the present case the plaintiff-appellant has failed to even prove his prima-facie title. 19. Having considered the submissions of the learned counsel for the plaintiff-appellant in the light of the findings of both the courts below, I find that the issues involved in the present case relate to questions of fact and there are concurrent findings of fact by both the courts below, which cannot be interfered with by this court in the scope of second appeal under Section 100 of the C.P.C. as they do not suffer from any infirmity or perversity. This appeal does not raise any question of law, muchless any substantial question of law, in the meaning of Section 100 of the CPC. The second appeal is accordingly dismissed in limine. 20. Consequent upon dismissal of appeal itself, the stay application, filed therewith, does not survive and the same same is also dismissed.