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2013 DIGILAW 459 (RAJ)

Nand Singh v. Mangal Singh

2013-02-22

PREM SHANKER ASOPA

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JUDGMENT : Prem Shanker Asopa, J. Heard learned counsel for the parties. 2. By this second appeal, the defendant-appellants have challenged the judgment and decree dated 16th December, 2011 passed by Additional District Judge (Fast Track) No. 1, Beawar, District Ajmer in Civil Regular Appeal No. 6/2009 (5/2001) dismissing the appeal of the defendant appellants and affirmed the judgment and decree dated 22nd May, 2001 passed by Civil Judge (JD) Ist Class, Beawar, District Ajmer in Civil Suit No. 38/82 whereby the suit of the plaintiff-respondents for permanent and mandatory injunction has been decreed. 3. Briefly, stated the facts of the case are that initially the plaintiff respondent No. 2 filed a civil suit for permanent injunction with the averments that on 24th February, 1982, residential plot situated in village Kushalpura, Gram Panchayat Bengaliawas ad measuring 60' x 80' was allotted by the Gram Panchayat to plaintiff respondent No. 1 vide proposal dated 18th September, 1981 and subsequent allotment dated 14th October, 1981, therefore, he became the sole owner of the plot and is i possession of the same. It was further stated that the defendant respondent Nos. 1 and 2 are trying to raise construction on the same and took possession of the same by force, therefore, she prayed for an injunction restraining the defendants from raising construction and her forceful dispossession of the said land. It is pertinent to mention here that although the civil suit was filed on behalf of plaintiff respondent No. 1 Mangal Singh also and subsequently by filing affidavit, vide order dated 4th September, 1990 he was allowed to participate in the proceedings. During the pendency of the civil suit when the defendant respondent made construction an application for amendment was filed for inserting paragraph No. 7A and mandatory injunction was also prayed for demolition of the construction before giving the possession and the same was allowed on 13.7.1994. 4. The defendant appellants filed their written statement and denied the contents of the plaint. It was specifically stated that they are in the peaceful possession on the land in dispute since last 30-35 years and that the plot in question is surrounded by barbed wire where they tied their animal and placed the fodder. The alleged allotment is illegal and is not binding upon them and that the land allotted to the plaintiff respondents has not properly been de-marked. 5. The alleged allotment is illegal and is not binding upon them and that the land allotted to the plaintiff respondents has not properly been de-marked. 5. On the basis of the pleadings of the parties, following six issues were framed:- 1- D;k xzke iapk;r csxfy;kokl us oknxzLr vkoklh; Hkw[k.M okfn;k uEcj 2 ds ifr Jh eaxyflag dks izLrko la[;k 19 fnukad 18-9-1981 vkoafVr fd;k ftldk fodz; foys[k fnukad 14-10-1981 dks fu"ikfnr fd;k\ 2- D;k oknxzLr IykaV dk iV~Vk tkjh djus ds ,d ekg ckn oknhx.k us 50&60 VªSDVj iRFkj Myok;s rFkk pkjksa rjQ iRFkj dh nhokj djhc 3 QqV maph cuok;h\ 3- D;k izfroknhx.k us fnukad 5-2-1982 dks ;k mlds vkl ikl IykaV ij cuh ckm.Mªh fnoky <+alk nh rFkk os oknxzLr IykaV ij tcju dCtk djus o edku cukus ds fy, vkeknk gS\ 4- D;k oknxzLr IykaV ij izfroknh uEcj 1 xr 30&34 o"kksZa ls dkfct pyk vk jgk gS rFkk mldh pkj nhokjh o iq[rk iV~Vk iks'k ,d dejk cuk gqvk gSa ftlds dkj.k Jh eaxyflag ds gd esa tkjh fd, x, iV~Vk voS/k gSa izfroknh uEcj 1 ikcan ugha gS\ 5- D;k iSjk 15 tokcnkok esa of.kZr dkj.kksa ls nkok pyus ;ksX; ugha gSa\ 6- vuqrks"k\ 6. Subsequently, on amendment of the plaint seeking restoration of the possession, the following three additional issues, 5A, 5B and 5C were framed:- 5,- vk;k fd izfroknhx.k us fnukad 26-2-1982 dks 'kke dks oknxzLr IykaV esa fuek.kZ gsrq iV~Vh ctjh pwuk vkfn Mkyk x;k\ 5ch- vk;k fd fnukad 5-3-1982 dks izfroknhx.k us oknxzLr tk;nkn esa HkwLFky esa ,d dejk iwjk cuk fy;k vkSj pkjksa rjQ ckm.M~h oky 3 fQV maph Hkh cuk yh\ 5lh- D;k ekStwnk okn fe;kn ckgj gksus ls pyus ;ksX; ugha gSa\ 7. In support of the averments of the plaint, the plaintiff respondents produced Mangal Singh PW.1 and Ratani PW.2 and in rebuttal evidence produced Ladu Singh and Chhoga. In documentary evidence Ex.1 to Ex.20 were exhibited. The defendant-appellants examined DW.1 Nand Singh, DW.2 Bhiyan and DW.3 Jethu in support of their case. 8. After considering the entire evidence available on record, the trial court decided issue Nos. In documentary evidence Ex.1 to Ex.20 were exhibited. The defendant-appellants examined DW.1 Nand Singh, DW.2 Bhiyan and DW.3 Jethu in support of their case. 8. After considering the entire evidence available on record, the trial court decided issue Nos. 1, 2, 3, 5A, 5B and 5C in favour of the plaintiff and against the defendants and vide judgment and decree dated 22nd May, 2001 decreed the civil suit for permanent and mandatory injunction by issuing direction that the defendants may hand over possession of the property within two months and further remove their debris. 9. Against the said judgment and decree the defendant appellants filed appeal before the first appellate court and the first appellant court after thoroughly considering the oral as well as documentary evidence recorded a specific finding that Ex.9 Patta issued by the Gram Panchayat to the plaintiff was in the category of Ex-Military Personnel under Rule 267 of the Rajasthan (General) Rules by negotiations and the same is not under Rule 266 and against the said Patta the defendant has filed appeal before the Panchayat Samiti which has been rejected and the same attained finality. Apart from above, the appellate court has recorded a categorical finding that the plaintiff respondent was in possession of the property prior to 5th arch, 1982 and subsequently, was forcefully dispossessed by the defendant appellants. The first appellate court after consideration of the oral and the documentary evidence affirmed the finding given by the trial court on all the issues. Thus, vide judgment and decree dated 16th December, 2011 the first appellate court has dismissed the appeal filed by the defendant appellants. 10. Submission of counsel for the defendant appellants is that in a civil suit for injunction, no decree for possession can be granted. His further submission is that the Patta issued by the Gram Panchayat does not confer any right on the plaintiff respondents as the same is not a registered document, therefore, is inadmissible in evidence. He also submits that the first appellate court has failed to consider the basic document of the defendant-appellants dated 22nd May, 1982 wherein the possession of the defendant appellants has been shown while rejecting the application filed under Order 41 Rule 27 CPC. 11. Counsel for the plaintiff respondents has supported the judgments of both the courts below. 12. He also submits that the first appellate court has failed to consider the basic document of the defendant-appellants dated 22nd May, 1982 wherein the possession of the defendant appellants has been shown while rejecting the application filed under Order 41 Rule 27 CPC. 11. Counsel for the plaintiff respondents has supported the judgments of both the courts below. 12. I have gone through the record of the second appeal and further considered the record called from the courts below. 13. On consideration of the same, this Court is of the view that the aforesaid issues have been decided in favour of the plaintiff respondents after detailed consideration of the material and evidence available on record and the findings recorded by the courts below are concurrent findings of facts. A regards the legal submission of the counsel for the appellants with regard to maintainability of a civil suit for grant of injunction and possession is concerned, from the record, more particularly, reports of the commissioner it is categorically reveal that the plaintiff respondent was dispossessed during pendency of the civil suit and an interim injunction was operating and further the plaintiff appellant amended the suit by inserting the averments and prayer with regard to mandatory injunction in respect of which issue Nos. 5A, 5B and 5C have been framed. Therefore, both the courts below have committed no illegality in granting the decree of possession in a civil suit filed for permanent injunction. As regards the Patta is concerned, the same was issued under the Rajasthan Panchayat Act and the Rules made thereunder which is a grant of an immovable property by a Government and no registration is required under Section 17(2)(vii) of the Registration Act, 1908 and is admissible in evidence. 14. No substantial question of law is involved in the appeal. The second appeal has no force and the same is, dismissed. 15. Office is directed to return the record immediately. Appeal dismissed.