State of Rajasthan through the District Collector, Jhunjhunu v. Munni Devi W/o Mohan Lal
2017-01-30
JAINENDRA KUMAR RANKA
body2017
DigiLaw.ai
ORDER : Jainendra Kumar Ranka, J. 1. This second appeal has been filed against judgment and decree dated 30.5.2012 passed by Additional District Judge, Khetri, in Appeal No. 7/2011 filed by the appellants, by which the judgment and decree dated 18.3.2011 passed by Civil Judge (Jr. Div.), Khetri, District Jhunjhunu, has been affirmed. 2. Facts of the case in brief are that a suit for permanent injunction against the appellants was filed by the respondent/plaintiffs for restraining the appellant/defendants from demolition of their shops pursuant to order dated 13.1.2006 with the averments that they have purchased by registered sale-deeds constructed house & shops, which are 20 years old, on land in khasra no. 223 situated in village Banwas and are in possession of the same. The shops in question were constructed 10 feet away from the road connecting Singhana - Narnaul. It was further averred that on account of political rivalry, the local MLA got notice u/s 91 of the Land Revenue Act served on the respondents alleging therein that the respondents have encroached upon 5-8 feet wide land in front of their shops and, therefore, the State Government has powers to dispossess them from the land. 3 In response to the notice served on the respondents, the respondents appeared before appellant no. 2 and submitted their reply along with relevant documents. It is alleged that appellant no. 2 under political pressure, got issued order dated 13.1.2006 to demolish about 4-8 feet of the constructed shops of respondents. It is further alleged in the plaint that after 17.11.2005, appellant no. 2 neither drew any order-sheet in the proceedings in presence of the respondents, nor the order for dispossession of the respondents was pronounced before them, and they came to know about the aforesaid order from newspaper. Therefore, the suit for permanent injunction against the appellants was filed. 4.
It is further alleged in the plaint that after 17.11.2005, appellant no. 2 neither drew any order-sheet in the proceedings in presence of the respondents, nor the order for dispossession of the respondents was pronounced before them, and they came to know about the aforesaid order from newspaper. Therefore, the suit for permanent injunction against the appellants was filed. 4. In their written statement the appellants denied most the averments of the plaint and averred that respondents have encroached upon government land creating obstructions on the land of State Highway due to which on account of increase in vehicular traffic, there are possibilities of any mis-happening and the respondents have no right to possess the land in question, therefore, the State government having authority to remove unauthorised encroachments in accordance with law, the order dated 13.1.2006 has been issued and that there is no pressure of the local MLA in the matter and the respondents had already been served with notice u/s 91 of the Land Revenue Act in accordance with law and the order has been passed after the respondents were given full opportunity of hearing and taking into consideration all the documents submitted by them. It was also averred by the appellants that an appeal against the order of removal of encroachments dated 13.1.2006 has already been filed by the respondents which is pending. The appellants had also raised the issue of maintainability of the suit and concealment of fact by the respondents. 5. The trial court framed 7 issues, including the issue of relief, on the basis of pleadings of the parties. The plaintiffs produced three witnesses and exhibited three documents in support of their pleadings/contentions, whereas the defendants produced only one witness and exhibited 13 documents in support of their written statement. After hearing the arguments and analysing the material and evidence produced on record, the trial court decided issue nos. 1 and 2 in favour of the respondent/plaintiffs and issue nos. 3-6 against the appellants and accordingly decreed the suit in favour of the respondent/plaintiffs restraining the appellants by way of permanent injunction from causing any damage or demolish the shops of respondent/plaintiffs, which are detailed in para 3 of the plaint. 6. Appeal filed against the judgment and decree of the trial court by the appellants, also stood dismissed, hence this second appeal. 7.
6. Appeal filed against the judgment and decree of the trial court by the appellants, also stood dismissed, hence this second appeal. 7. Contention of the learned counsel for appellant/defendants, inter-alia, is that the courts below have passed the impugned judgment and decrees on the basis of surmises and conjectures, as such the same are liable to be quashed and set aside as the plaintiffs have not claimed title of the disputed properties and, therefore, the plaintiffs were not entitled to the relief of permanent injunction. Learned counsel further contended that the disputed shops fell under khasra nos. 217 and 218 which are gair mumkin road being government land upon which the shops of plaintiffs are situate and since the defendant/appellants are the true owners of the land in dispute, decree of permanent injunction could not have been passed by the courts below and, therefore, the impugned judgment and decrees are liable to be quashed and set aside. 8. I have heard learned counsel for the appellants and perused the impugned judgment and decrees as also the record of the case. The courts below have arrived at a concurrent finding after analysing the material available on record and the learned counsel for the appellants has not been able to point out any illegality or infirmity being committed by the courts below in arriving at the concurrent finding. Therefore, I am of the view that since the judgment and decrees passed by the courts below are well reasoned one, no interference by this court is needed. 9. However, if still it is noticed that the shops fall in actual road and there is encroachment, then the government is free to initiate further action in accordance with law. 10. Consequently, this second appeal, being devoid of any merit, is dismissed with aforesaid directions.