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2015 DIGILAW 436 (RAJ)

Ganesh v. Animal Aid Charitable Trust, Udaipur

2015-02-16

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition under Article 226 and 227 of the Constitution of India is directed against judgment dated 03.01.2015 passed by Additional District Judge No. 4, Udaipur, whereby, the appeal filed by the respondent has been allowed and the order dated 19.06.2014 passed by Civil Judge (Senior Division), Udaipur accepting application filed by the petitioners under Order 39, Rule 1 and 2 CPC has been set aside. 2. The petitioners filed a suit for permanent injunction along with an application under Order 39, Rule 1 and 2 CPC; it was, inter alia, claimed that petitioner No. 1 - Ganesh is illiterate aged person and the suit land is in power and peaceful possession of the petitioners for more than 70 years; the land was given to the petitioners by the then Maharana under a Patta, however, the same was destroyed; the petitioners were using the land for agricultural purposes; the land is covered by an old wall 5ft. high; it was claimed that on 21.05.2014 certain persons came to the site and started demolishing the wall and tried to enter the land forcibly; matter was reported to the Police; it was prayed that permanent injunction be granted against the respondent and during the pendency of the suit, the respondent be restrained from interfering in the plaintiffs' possession; the petitioners produced certain documents along with the plaint. 3. A reply to the application was filed by the respondent; it was claimed that the land comprised in Araji No. 1598 belong to Urban Improvement Trust, Udaipur ('UIT') and the same was allotted to the Trust vide allotment letter dated 20.09.2013; it was claimed that the petitioners have no title regarding the land in dispute. 4. Replication was filed by the petitioners and the averments made in the reply were denied; it was reiterated that the petitioners were never dispossessed from the land in question and the possession handed over to the defendants was paper possession only. 5. On an application filed under Order 39, Rule 7 CPC by the petitioners, a local Commissioner was appointed, who submitted his report dated 12.06.2014. 6. 5. On an application filed under Order 39, Rule 7 CPC by the petitioners, a local Commissioner was appointed, who submitted his report dated 12.06.2014. 6. The trial court after hearing both the parties held that petitioners had prima facie case in their favour and the aspects pertaining to balance of convenience and irreparable injury were also held in favour of the petitioners and, consequently, the application filed by the petitioners under Order 39, Rule 1 and 2 CPC was allowed and it was directed that during the pendency of the suit, the status quo as indicated in the Commissioner report be maintained. 7. Feeling aggrieved by the order dated 19.06.2014 the respondent filed an appeal under Order 43, Rule 1 (r) CPC; the appellate court by its judgment dated 03.01.2015 allowed the appeal, set aside the order dated 19.06.2014, dismissed the application filed by the petitioners, accepted the counter claim and restrained the plaintiffs from interfering with the possession of the respondent herein till the disposal of the suit. 8. It is submitted by learned counsel for the petitioners that the appellate court committed a manifest perversity and gross illegality while passing the impugned order; it was claimed that the petitioners were having old settled and peaceful possession over the suit property, which was evident from Khasra Parivartit Nirdharan, notices under Section 91 of the Land Revenue Act, 1956 ('the Act'), Lagan receipts produced by the petitioners and the Commissioner report; the trial court had rightly accepted the application, but the appellate court while taking a wrong perception of the facts has erroneously set aside the same; the settled possession of the petitioners were required to be protected; the respondent failed to produce any document indicating dispossession of the petitioners or handing over of the possession to the UIT and, therefore, the appellate court fell in complete error in accepting the appeal; it was further submitted that once the petitioners are held to be in settled possession, they cannot be removed without adopting due procedure of law; the appellate court failed to give any reason to reverse the findings of the trial court. 9. Learned counsel for the petitioners also made submissions based on the documents filed along with the writ petition; it was prayed that the order passed by the first appellate court be reversed and the order passed by the trial court be restored. 10. 9. Learned counsel for the petitioners also made submissions based on the documents filed along with the writ petition; it was prayed that the order passed by the first appellate court be reversed and the order passed by the trial court be restored. 10. Reliance was placed on Wander Ltd. & Anr. v. Antox India P. Ltd. : 1990 (Supp) SCC 727, Rame Gowda v. M. Vardappa Naidu & Anr. : (2004) 1 SCC 769 , Modh. Mehtab Khan & Ors. v. Khushnuma Ibrahim Khan & Ors. : (2013) 9 SCC 221 , Nawla & Ors. v. State & Ors. : 1998 DNJ (Raj.) 535, Dalpat Kumar & Anr. v. Prahlad Singh & Ors. : 1192 (1) CCC (SC) 73 and Abdul Latis & Ors. v. Nagar Vikas Pranyas, Udaipur : 2006 (3) RLW 2288. 11. Vehemently opposing the submissions made by learned counsel for the petitioners, learned counsel for the respondent submitted that the first appellate court having thoroughly examined all the issues raised has categorically found that the petitioners have failed to make out prima facie case in their favour and, as such, it was justified in allowing the appeal filed by the respondent; it was submitted that the petitioners failed to indicate their legal possession on the land in question and had made several claims including adverse possession qua the land in question, which aspects have been negated by the first appellate court; the trial court without taking a over all view of the matter had wrongly accepted the application filed by the petitioners, which the appellate court was justified in reversing; it was submitted that while exercising jurisdiction under Article 226 and 227 of the Constitution of India, the order passed by the first appellate court does not call for any interference. Reliance was placed on Devi Singh & Anr. v. Rafiq Ahmed & Anr. : S.B. Civil Second Appeal No. 224/1993 decided on January 21, 2014 at Jaipur Bench of this Court. 12. I have considered the rival submissions made by learned counsel for the parties. 13. Reliance was placed on Devi Singh & Anr. v. Rafiq Ahmed & Anr. : S.B. Civil Second Appeal No. 224/1993 decided on January 21, 2014 at Jaipur Bench of this Court. 12. I have considered the rival submissions made by learned counsel for the parties. 13. The petitioners came out with the case that they were in possession of the land in question and, in support whereof, produced the Khasra Parivartit Nirdharan for the period 2048 to 2054 i.e. 1991-92 to 1997-98, wherein, names of the petitioners have been indicated as the Kastkar and for two years i.e. Samvat 2048 and 2049 the agricultural produce i.e. Makki and Urad has been indicated; however, since the years 2050 to 2054, no agricultural produce has been indicated; on the other hand, in the Samvat year 2054 the land has been indicated as Padat; it is claimed by the petitioners that as the land in question became part of the periphery belt of Udaipur, the revenue entries stopped and, therefore, the entries for the period subsequent to the years 1997-98 could not be produced; the petitioners have relied on several notices issued to them under Section 91 of the Act to indicate that they were in possession of the land in question and the notices pertained to the period 1991, 1992, 1993 and 1994, however, the petitioners have failed to place on record any document indicating the outcome of the proceedings under Section 91 of the Act; the plea raised in the suit pertains to the settled possession and having acquired title by adverse possession, however, the reliance placed on notice under Section 91 of the Act clearly indicates that the petitioners have no legal title over the land in question. 14. 14. From the material placed on record, it further appears that the land in question was recorded as Government land and the same came to be transferred in the name of UIT and a Jamabandi pertaining to Samvat years 2068 to 2071 in this regard has been produced; where after, the land in question was allotted to the respondent Trust and possession was allegedly handed over on 20.09.2013 and licence dated 31.03.2013 was executed by UIT in favour of the respondent Trust; in the Commissioner report, prepared on an application filed by the petitioners, indications of old wall have been indicated, however, it is also indicated that construction of the wall was going on and the goods pertaining to construction work lying at the site along with a board indicating the Trust's name; admittedly, it is not the case of the petitioners that the goods pertaining to the construction work was of the petitioners, therefore, apparently, when the Commissioner visited the site, the construction being undertaken at the site, was by the Trust and they were in possession of the land in question. 15. The trial court by its order essentially based on its finding that there was no material on record to indicate that the UIT before allotting the land to the Trust dispossessed the petitioners and based on the fact that the dispute could only be resolved after evidence is led by the parties, found prima facie case in favour of the petitioners; however, the first appellate court came to the conclusion that the plea regarding Patta issued by Maharana to the petitioners was prima facie not proved; the alternative plea regarding petitioners ownership by way of adverse possession was also negated prima facie by the appellate court. 16. 16. Interestingly, the petitioners did not implead the State Government and/or the UIT as party to the suit or to the temporary injunction application; though it was submitted by learned counsel for the petitioners that as the suit was for injunction only, the petitioners were required to implead only the persons threatening dispossession and, therefore, presence of UIT or the State was not necessary; however, the plea of adverse possession sought to be raised by the petitioners and the finding recorded by the trial court that before allotment of the land to the respondent Trust there is no proof regarding UIT dispossessing the petitioners could not be recorded in absence of the UIT/State and, in the circumstances of the case, the absence of UIT is in fact fatal to the entire case of the petitioners, based on which, the relief of temporary injunction has been sought. 17. As noticed hereinbefore, in the Khasra Parivartit Nirdharan relied on by the petitioners for the period 2008 to 2054 also the cultivation has been shown only during the period 2048 to 2049 and in the year 2054 the land has been shown as Padat and, subsequent thereto, there is no material available on record to indicate the petitioners' possession on the land in question. 18. The mere fact that an old temporary wall was found, the same cannot by itself indicate the possession of the petitioners; learned first appellate court after considering all the pleas raised and the judgments cited by either of the parties came to the conclusion that the petitioners failed to prima facie show their settled possession over the land in question; the finding in this regard is based on the material available on record and it cannot be said that the first appellate court committed any illegality in reversing the judgment passed by the trial court. 19. So far as the judgments cited by learned counsel for the petitioners are concerned, while in the case of Wander Ltd. (supra) Hon'ble Supreme Court held the parameters regarding appeal under Order 43 CPC, however, in the present case, as noticed hereinbefore, the finding of the trial court was based on its finding, which had no basis and was merely presumptive and that also in absence of UIT and, therefore, it cannot be said that the appellate court committed any error in reversing the judgment. 20. In the case of Mohd. 20. In the case of Mohd. Mehtab Khan (supra) principles indicated in Wander Ltd. (supra) were reiterated. 21. The judgment in Rame Gowda (supra) deals with the theory of settled possession; there is no doubt that a person, who is in settled possession or effective possession even without title is entitled to protect his possession even against the true owner, but then the possession has to be proved as a fact. In the present case, documentary proof produced by the defendant prima facie shows handing over of possession on 24.09.2013, though the same is claimed as paper possession by the petitioners, however, the fact that at the time of Commissioner visiting the site the construction at the site was being undertaken by the respondent and the fact that petitioners did not make any averment in the suit having been factually dispossessed, the theory of settled possession by itself is not sufficient. 22. The judgment of this Court in Nawla (supra) has apparently no application to the facts of present case and the principles laid down in the case of Dalpat Kumar (supra) cannot be said to have been violated in the present case. The judgment in the case of Abdul Latif (supra) pertains to the necessity of seeking declaration, which though has not been sought for in the present case, still the same has not formed the basis for the first appellate court to reverse the finding of the trial court. 23. The judgment cited by learned counsel for the respondents in the case of Devi Singh (supra) deals with the requirement of necessary party in the case of declaration pertaining to adverse possession and the requisites for the said purpose, which is of significance in the preset case, as in the suit, ownership by adverse possession, has been claimed for over 70 years, however, State has not been impleaded as party. 24. In view of the above discussion, the order dated 03.01.2015 passed by the appellate court does not call for any interference and, consequently, the writ petition filed by the petitioners is dismissed. The stay petition is also dismissed.