Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 347 (RAJ)

Chairman, Municipal Board, Sojat v. Bhanwar Lal

2014-02-03

ARUN BHANSALI

body2014
JUDGMENT 1. - Heard learned counsel for the appellants. 2. The appellants are aggrieved against judgment and decree dated 09.11.2004 passed by Civil Judge (Senior Division), Sojat, District, Pali as upheld by Additional District Judge, Sojat, District, Pali by appellate judgment dated 04.07.2008, whereby, while the suit filed by the respondents qua injunction has been decreed, the appeal filed by the appellants has been rejected, respectively. 3. The respondents-plaintiffs filed a suit seeking permanent injunction against the appellants from interfering in use and occupation of the plaintiffs' house, boundaries whereof were indicated in the plaint along-with further injunction not to restrain them for raising construction on the said piece of land. 4. The suit was resisted by the appellant Municipal Board and it was claimed that the notice was issued by the Municipal Board as the construction was sought to be raised on public way. 5. On the pleadings of the parties, the trial court framed several issues, the material being as to whether the disputed land was owned by the plaintiffs and was in their possession. On behalf of the plaintiffs, six witnesses were examined and several documents were exhibited including the sale-deed executed by Municipal Board in favour of Himmata Ram, their predecessor-in-interest dated 09.02.1970, the construction permission issued by the Municipal Board and the notice issued by the Municipal Board seeking to restrain the respondents from raising construction. 6. On behalf of the appellant-defendants, no oral or documentary evidence was produced in support of its contentions raised in the written statement. 7. The trial court after hearing the parties and analysing the oral and documentary evidence, came to the conclusion that the disputed land was owned by the plaintiffs and the defendants had failed to prove that the land was part of the public way as claimed by them, and ultimately issued the injunction as sought by the plaintiffs. 8. The first appellate court after hearing the parties and after re-appreciating the evidence available on record and considering the pleas raised by the appellants came to the conclusion that the finding recorded by the trial court did not require any interference as the same was in accordance with law & dismissed the appeal. 9. 8. The first appellate court after hearing the parties and after re-appreciating the evidence available on record and considering the pleas raised by the appellants came to the conclusion that the finding recorded by the trial court did not require any interference as the same was in accordance with law & dismissed the appeal. 9. It is submitted by learned counsel for the appellants that both the courts below were not justified in holding in favour of the plaintiffs as the land in question formed part of public way and no right accrues in a land, which is part of the public way. 10. Reliance was placed on judgments of this Court in Takhat Singh @ Norat Mal v. The Municipal Council, Ajmer: 2006 (7) RDD 2013 (Raj.) and Mohd. Sharif v. Nagar Palika Ringus through Executive Officer and Anr.: 2013(3) WLN 197 (Raj.). 11. Having gone through both the judgments passed by the courts below and the record of the trial court and having heard learned counsel for the appellants, it is apparent that the land in question was owned by the plaintiffs based on sale-deed, which was issued by the Municipal Board way back in the year 1970 and based on the said deed, construction permission was also issued by the Municipal Board, on which, the construction was being raised, however, the Municipal Board, thereafter having no apparent reason, issued notice seeking to inject the respondents from raising construction. The finding of both the courts below regarding the ownership of the land in question is based on material available on record and no perversity has been shown and the findings being findings of fact do not call for any interference. 12. So far as the plea raised by the Municipal Board about existence of public way is concerned, despite the fact that the Municipal Board raised the said plea, no oral or documentary evidence was led in support of the said contention and both the courts below have held that the appellants have failed to prove the contention. In absence of evidence in this regard, both the courts below were justified in coming to the conclusion that no public way exists. 13. So far as the judgments in the case of Takhat Sing @ Norat Mal (supra) and Mohd. In absence of evidence in this regard, both the courts below were justified in coming to the conclusion that no public way exists. 13. So far as the judgments in the case of Takhat Sing @ Norat Mal (supra) and Mohd. Sharif (supra) are concerned, the same necessarily deals with public way but for that, existence of pubic way has to be proved as a fact. In absence of any existence of public way, the said judgments are of no assistance to the appellants. 14. Consequently, there is no substance in the appeal and the same is, therefore, dismissed.Appeal Dismissed. *******