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2014 DIGILAW 804 (RAJ)

LR’s of Vijay Singh v. Gopal Singh

2014-03-28

ARUN BHANSALI

body2014
JUDGMENT 1. - This second appeal under Section 100 CPC is directed against the judgment and decree dated 18.2.2014 passed by the Additional District Judge No.5, Udaipur, whereby the appeal filed by the appellants against the judgment and decree dated 15.10.2013 passed by the Civil Judge (Sr.Div.), Vallabhnagar, District Udaipur has been dismissed. 2. The facts in brief may be noticed thus : the plaintiffs respondents residents of village Chauhanon Ka Guda filed a suit for permanent and mandatory injunction against the appellants with the averments that a chowk and land of the way was situated in Araji No.36/5 in which doors of their house open; the land is recorded as abadi and belonging to Gram Panchayat Gupdi and ad measures 8 Bigha 11 Biswa. On the Northern side of said Araji, a well is situated in Araji No.40; in the centre of a public chowk, a banyan tree is standing; the defendants have no right on the said public chowk and public way; the shade of the banyan tree is used by the villagers and animals for relaxing and the chowk is being used at the time of marriages and/or deaths etc; the defendants were bent upon trespassing on the said public chowk and had collected 13-14 tractors of stone and have constructed a temporary boundary wall 3-4 fts. height and have also cut down the big branches of banyan tree. It was prayed that by mandatory injunction, the stones etc. be got removed from the public chowk and the defendants be restrained from trespassing and/or obstructing the house/movement of the plaintiffs. 3. A written statement was filed by the defendants appellants, it was claimed that way to plaintiffs No.7 to 17's house was not from disputed land; the land is owned by the defendants No.1 to 3 and Araji No.40 is of their co-khatedari; Araji No.36/5 is not a public chowk, but the same is owned by the defendants and Shambhoo Singh etc; Araji No.40-36/5 has not been used by the plaintiffs; other villagers Jawan Singh, Shambhoo Singh, Kanku Kuwar are necessary parties. 4. The trial court framed seven issues. On behalf of the plaintiffs 06 witnesses were examined and 10 documents were exhibited. On behalf of the defendants 03 witnesses were examined and 05 documents were exhibited. 5. 4. The trial court framed seven issues. On behalf of the plaintiffs 06 witnesses were examined and 10 documents were exhibited. On behalf of the defendants 03 witnesses were examined and 05 documents were exhibited. 5. After hearing the parties, the trial court came to the conclusion that the land in dispute was recorded in the name of Gram Panchayat, Gupdi as abadi. Though the land cannot be called as a public chowk merely on account of presence of a banyan tree, water hut and handpump, it was proved that the defendants were seeking to trespass on the open land of Gram Panchayat; the defendants were bent upon trespassing on the Government land and to obstruct the way, regarding which they have no right; the defendants failed to prove that they have title of the suit land; the suit was not bad for non-joinder of parties; the suit was filed by the plaintiffs in their personal capacity and therefore, the rest of the villagers were not necessary parties and ultimately decreed the suit filed by the plaintiffs granting mandatory and permanent injunction. 6. Feeling aggrieved, the appellants filed an appeal. The appellate court after hearing the parties and examining the record of the trial court reiterated the findings recorded by the trial court and found no reason to interfere with the same. 7. It is submitted by learned counsel for the appellants that both the courts below fell in error in decreeing the suit filed by the plaintiffs though coming to the conclusion that the land in question was not a public chowk. It was submitted that the appellants were merely constructing a wall around the well for protecting the same and the plaintiffs had no right to maintain the suit. It was further submitted that the land in question were owned by the appellants, however, the courts below have not considered the sale deeds produced by them which has resulted in grave injustice. 8. I have considered the submissions made by learned counsel for the appellants and have perused the judgments of both the courts below. 9. Both the courts below concurrently found that the land in dispute was recorded in the name of Gram Panchayat, Gupdi and was abadi land. The said finding was based on the revenue record produced by the plaintiffs. I have considered the submissions made by learned counsel for the appellants and have perused the judgments of both the courts below. 9. Both the courts below concurrently found that the land in dispute was recorded in the name of Gram Panchayat, Gupdi and was abadi land. The said finding was based on the revenue record produced by the plaintiffs. On the other hand though the defendants claimed their title over the said land and claims to have produced certain sale deeds, but the pattas, which are the basis of the said document were neither exhibited nor the same were registered/stamped and therefore, the courts below were justified in not taking the said documents in consideration. The fact that both the courts below did not find the suit land as public chowk does not effect the case of the plaintiffs as once the land is found to be belonging to the Gram Panchayat and the same was being used by the plaintiffs for various purposes, they could very well maintain the suit for prohibiting the appellants from trespassing on the said land and even if the Gram Panchayat was not impleaded as a party, the same does not effect the maintainability of the said suit. 10. The plea raised by learned counsel for the appellants that the appellants were seeking to construct the wall for protecting the well even if the land belonged to the Gram Panchayat and therefore, the plaintiffs were not entitled for the decree, is wholly baseless. Merely because, a land belonging to the Gram Panchayat is lying vacant, cannot arm the appellants to put it to use as per their convenience so as to obstruct the user by the general public. 11. Learned counsel for the appellants failed to point out any perversity in the findings recorded by both the courts below. Consequently, the judgments impugned passed by both the courts below does not call for any interference, the appeal has no substance and the same is, therefore, dismissed.Appeal dismissed. *******