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2014 DIGILAW 569 (RAJ)

LRs of late Shri Om Shanker v. State of Rajasthan

2014-02-26

ARUN BHANSALI

body2014
JUDGMENT 1. - This second appeal is directed against judgment and decree dated 07.05.2012 passed by Additional District Judge No.1, Udaipur, whereby, the appeal filed by the appellants against judgment and decree dated 16.05.2002 passed by Additional Civil Judge (Senior Division) No.1, Udaipur was dismissed and the dismissal of the suit filed by the appellants was affirmed. 2. The facts in brief may be noticed thus : the appellants-plaintiffs' father Om Shanker filed a suit on 15.09.1992 against the respondent-State and local authorities for declaration and permanent injunction with the averments that plaintiffs' house was situated at Delhi Gate, Udaipur; the same was acquired by him by way of partition dated 21.07.1969 and in 1984 he applied for permission to raise construction with the Municipal Council, Udaipur along-with a map; when though permission was granted but qua a part of the map towards main road, permission was not granted; while construction was raised as per the permission granted, the portion, regarding which, the permission was not granted was let out; the tenant put up tin sheds therein, which were removed by the local authorities along-with District Administration treating the same as encroachment and on the said land, road along-with a drain was constructed and in fact the respondents have trespassed on the said land, which the plaintiff was entitled to be removed and seek back the possession. 3. Written statements were filed by the Municipal Council, Udaipur and Urban Improvement Trust, Udaipur; in written statement it was claimed that the land vests in the local authority and as encroachment was made on the said land, the same was rightly removed. 4. The trial court framed six issues and on behalf of the plaintiff two witnesses were examined and several documents were exhibited. No evidence was produced by the defendants and no documents were filed, where-after they were set ex parte. 5. After hearing the plaintiff, the trial court came to the conclusion that the plaintiff failed to prove that he had title on the disputed land, plaintiff was not entitled for declaration and possession of the said land. The issues, regarding which, burden was on the defendants were decided against them and it was held that the plaintiff has paid sufficient court fees. However, in view of the finding on issue Nos.1 and 2, the trial court dismissed the suit. 6. The issues, regarding which, burden was on the defendants were decided against them and it was held that the plaintiff has paid sufficient court fees. However, in view of the finding on issue Nos.1 and 2, the trial court dismissed the suit. 6. Feeling aggrieved, the appellants filed first appeal before Additional District Judge No.1, Udaipur, who after hearing the parties reiterated the findings recorded by the trial court regarding the title of the suit property and where after dismissed the appeal. 7. It was submitted by learned counsel for the appellants that after filing the written statement the defendants did not appear. No evidence was led by them and issue No.5 regarding the defendants' right to seek injunction against the plaintiffs not to trespass on the said land was decided against the defendants and, therefore, the trial court was bound to decree the suit filed by the plaintiffs. It was further submitted that the first appellate court gave undue importance to rejection of part of construction permission and has assumed that as the plaintiff had no title, the permission was refused, when in fact no such reason in the rejection was indicated, which clearly vitiates the finding of the first appellate court. 8. I have considered the submissions made by learned counsel for the appellants. 9. The entire case of the plaintiffs was that the suit property fell in their share by way of partition dated 21.07.1969 and in the map attached to the said partition deed, the land was shown as part of the house and, therefore, the plaintiff has right, title and interest in the said land. The plaintiffs failed to place on record any further document so as to indicate as to how the land in question was procured by the family before the same was partitioned. Mere indication of the boundaries and/or the dimensions in the map attached to a partition deed, by itself cannot confer a title on the plaintiffs, the said document being only self serving. 10. Things would have been different if there was a dispute between parties to the said partition deed, wherein, the appellants-plaintiffs could have relied on the said document, but qua a third party and that also State and local authority, the partition deed cannot confer title on the plaintiffs. 11. 10. Things would have been different if there was a dispute between parties to the said partition deed, wherein, the appellants-plaintiffs could have relied on the said document, but qua a third party and that also State and local authority, the partition deed cannot confer title on the plaintiffs. 11. Both the courts have found against the plaintiffs regarding title of the disputed land, nothing survives thereafter in the suit and the same was rightly rejected. The fact that the defendants did not appear after filing written statement and did not lead any evidence, by itself cannot lead to a finding/decree in favour of the plaintiffs as the plaintiffs were required to prove their own case, which they miserably failed. 12. Consequently, there is no substance in the appeal and the same is, therefore, dismissed.Appeal Dismissed. *******