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2014 DIGILAW 233 (RAJ)

LRs of Abdul Majid v. Pukhraj

2014-01-20

ARUN BHANSALI

body2014
JUDGMENT 1. - This second appeal under Section 100 CPC is directed against judgment and decree dated 23.08.1995 passed by Civil Judge (Junior Division), Jodhpur City, Jodhpur ('the trial court') as upheld by the appellate decree dated 16.10.2008 passed by Additional District Judge (Fast Track) No.4, Jodhpur ('the appellate court'). 2. The facts in brief may be noticed thus: the suit was filed in the year 1974 by Shankar Lal, father the respondents-plaintiffs seeking permanent injunction against Abdul Majid, father of the appellants, inter alia, with the averments that the land in question was sold by the Urban Improvement Trust, Jodhpur to the plaitniff on 10.04.1972; the sale was got registered; contruction permission was granted on 27.04.1974 and map was passed by the concerned authority; they started raising construction at the site, the same was sought to be interfered with by the defendant, and therefore, by way of permanent injunction he be restrained from raising construction at the said site. 3. A written statement alongwith counter claim was filed by the appellant - defendant, inter alia submitting that Urban Improvement Trust had no right to sale the land in question on 10.04.1972 as the same did not vest in it. The land does not fall within the definition of strip of land and besides that by 'Patta' dated 01.06.1954 issued under the Marwar Patta Act, 1921, the land had already been sold to the defendant and therefore, the suit deserves to be dismissed and by way of counter claim claimed cancellation of sale dated 10.04.1972 and sought possession. 4. The trial court framed six issues and after evidence was led by the parties, came to the conclusion that the land in question was transferred by the Urban Improvement Trust to the plaintiffs by sale-deed dated 10.04.1972 and objection filed claiming the same to be part of road, was rejected by the Collector and the land in question was in possession of the plaintiffs. On the 'Patta' claimed in favour of the defendant, the trial court relying on the judgment of this Court in the case of Bhikam Chand v. State of Raj. On the 'Patta' claimed in favour of the defendant, the trial court relying on the judgment of this Court in the case of Bhikam Chand v. State of Raj. & Ors., AIR 1957 Raj 84 , came to the conclusion that as the provisions of Marwar Patta Act, 1921 have been held to be unconstitutional, the 'Patta' was void, and consequently based on its finding on the issues relating to the possession etc., the suit filed by the plaintiffs was decreed. 5. Feeling aggrieved, the appellant filed civil first appeal under Section 96 CPC, inter alia, questioning the judgment and decree passed by the trial court. 6. The first appellate court after thoroughly examining the issues raised by the appellant and based on the documents available on record upheld the decree passed by the trial court and did not find any substance in the appeal filed by the appellant and, consequently, dismissed the same. 7. It is submitted by learned counsel for the appellant that both the courts below fell in error in coming to the conclusion that the 'Patta' (Exhibit - A4) dated 01.06.1954 issued under the Marwar Patta Act, 1921 was void and in relying on judgment in the case of Bhikam Chand (supra), when in fact by the said judgment, only certain provisions of the Marwar Patta Act, 1921 were declared unconstitutional. It was further submitted that the plaint did not disclose any cause of action as the plaintiffs have failed to indicate even the boundaries of the land regarding which injunction was sought; the land in question cannot be said to be strip of land; the UIT had no jurisdiction to issue the 'Patta' for the said land. Ultimately, it was prayed that both the courts below have committed serious error of law in decreeing the suit filed by the plaintiffs. 8. Per contra, learned counsel appearing for the respondent - plaintiffs supported the impugned judgment and decree passed by both the courts below and submitted that the findings recorded by both the courts below are pure findings of fact; new issues are sought to be raised in this appeal, which cannot be permitted and, therefore, the second appeal deserves to be dismiseed. 9. I have considered the rival submissions. 10. 9. I have considered the rival submissions. 10. From a perusal of the judgments passed by both the courts below, it is apparent that both the courts have concurrently found that the transfer of the land in question in favour of the plaintiffs on 10.04.1972 by Exhibit - 1 was valid, the 'Patta' dated 01.06.1954 (Exhibit - A4) issued in favour of the defendant was void and it cannot be accepted that the land said to have been in possession is not available at the site and, consequently, decreed the suit and dismissed the appeal. 11. The issue raised by learned counsel for the appellant regarding validity of 'Patta' (Exhibit - A4) dated 01.06.1954 based on the provisions of Marwar Patta Act, 1921 is apparently baseless. Admittedly, the 'Patta' (Exhibit - A4) does not evidence payment of any stamp duty and the same has not been registered. The provisions of Transfer of Property Act, 1882 were made applicable to the State of Rajasthan by promulgation of the Rajasthan Adaptation of Central Laws Ordinance, 1950 ('the Ordinance of 1950'), which came into force on 24.01.1950; under the Schedule appended to the said Ordinance of 1950 at Serial No.26 & 43, the Transfer of Property Act, 1882 and the Indian Registration Act, 1908 have been indicated, besides the above, by the Rajasthan Stamp Law (Adaptation) Act, 1952 ('Adaption Act of 1952'), the Indian Stamp Act, 1899 also stood adapted. Further Section 10 of Ordinance of 1950 provided repeal of all laws covered by the Central Laws adapted by or under the Ordinance. 12. In view of the adaptation of the Central Laws by Ordinance of 1950 and Adaptation Act of 1952 the unstamped and unregistered 'Patta' (Exhibit - A4) claimed to have been issued on 01.06.1954 under the Marwar Patta Act, 1921 in favour of the appellant, which is neither registered nor the same bears Stamp duty, cannot be said to have any validity and in view of Section 54 of the Transfer of Property Act, in absence of registration, the same does not create any title in favour of the appellant. Admittedly, the sale-deed (Exhibit - 1) dated 10.04.1972 issued by UIT is duly registered and bear Stamp duty and, therefore, it cannot be said that either the land was not available for being sold and/or the appellant had any right, title or interest in the said land. Admittedly, the sale-deed (Exhibit - 1) dated 10.04.1972 issued by UIT is duly registered and bear Stamp duty and, therefore, it cannot be said that either the land was not available for being sold and/or the appellant had any right, title or interest in the said land. As such, the findings recorded by both the courts below appear to be just and proper in the facts and circumstances of the case. 13. From the material available on record, both the courts below have come to the conclusion that the land was 'Strip Land' and the Urban Improvement Trust had the power to deal with the property in question at the relevant time and the Municipal Board has granted permission for construction, in which the appellant was claiming title without any objection, and as such the same was validly transferred to the plaintiffs by UIT. 14. So far as the issue raised by the appellant regarding alleged absence of cause of action is concerned, after passage of 40 years from the date the suit was filed by the plaintiffs, the issue is sought to be raised for the first time, which does not even find mention in the memo of appeal and, therefore, the same cannot be permitted to be raised at the second appellate stage after passage of so much of time. 15. The appeal does not involve any substantial question of law and the findings recorded by both the courts below on the issues raised are pure findings of fact, which does not call for any interference in the second appeal. 16. Accordingly, there is no substance in the second appeal and the same is, therefore, dismissed. The stay application is also dismissed. 17. No costs.Appeal Dismissed. *******