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2021 DIGILAW 1117 (RAJ)

Rewata v. Krishi Upaj Mandi, Rajgarh

2021-07-13

ARUN BHANSALI

body2021
JUDGMENT : Arun Bhansali, J. 1. This second appeal is directed against the judgments & decree dated 4/2/2011 & 23/11/2020 passed by Civil Judge (Jr. Div.), Rajgarh, District-Churu and Addl. District Judge No. 2, Rajgarh, District-Churu, whereby, the suit for permanent injunction and first appeal filed by the appellant have been dismissed, respectively. 2. The suit for permanent injunction was filed by the plaintiff inter alia with the averments that a residential plot was situated in ward no. 9, Khasra no. 719, which was of her old possession, qua which a Patta dated 21/7/1966 was issued by the District Collector, Churu. It was claimed that the plaintiff had constructed water tank and had also constructed fencing around the plot and has taken electricity connection. It was indicated that the plaintiff had filed a suit against Municipal Board for permanent injunction qua the same land, which was decreed on 11/9/2008. It was alleged that as the rest of the land in Khasra no. 719 was allotted to defendant Krishi Upaj Mandi Samiti, the Mandi Samiti ('market committee') in the garb of said allotment wanted to dispossess the plaintiff and was seeking to deprive her from use of the said land. It was prayed that the defendant be restrained from dispossessing the plaintiff without undertaking due process of law and not to deprive her from use of the plot. 3. Written statement was filed by the Mandi Samiti denying the averments contained in the plaint. It was denied that the Patta dated 21/7/1966 pertains to Khasra no. 719 and it was asserted that the said plot was part of the land allotted by the District Collector to Mandi Samiti on 1/3/1974. It was claimed that as no record of the alleged Patta was available, the same was fraudulent. It was also submitted that based on the decree passed in a suit filed against the Municipal Board, the defendant cannot be bound. 4. Further submissions were made that as mandatory notice under Section 31 of the Rajasthan Agricultural Produce Markets Act, 1961 ('the Act, 1961') has not been issued, the suit was liable to be dismissed. 5. Based on the submissions of the parties, the trial court framed five issues. On behalf of the plaintiff, three witnesses were examined and ten documents were produced, on behalf of the defendant, two witnesses were examined and six documents were exhibited. 6. 5. Based on the submissions of the parties, the trial court framed five issues. On behalf of the plaintiff, three witnesses were examined and ten documents were produced, on behalf of the defendant, two witnesses were examined and six documents were exhibited. 6. After hearing the parties, the trial court came to the conclusion that it was not established that Patta (Ex. 6) relied on by the plaintiff was issued in accordance with law as no record in this regard was available/produced. Further, the Patta in question was found not relating to the plot in question; the suit plot was part of the land allotted to Mandi Samiti and that the plaintiff was seeking to take illegal possession of the land in question in the garb of Patta. The trial court also came to the conclusion that the suit was barred under the provisions of Section 31 of the Act, 1961 as admittedly no notice was issued. Consequently, the trial court dismissed the suit. 7. Feeling aggrieved, the plaintiff filed first appeal. The First appellate court after hearing the parties came to the conclusion that complete certified copy of the Patta was not produced and only a half part of Patta was produced and on the first page there were no signature of the Collector, therefore, the record of proceedings regarding issuance of Patta from the Collector were necessary, which were not produced. 8. Further, besides the Patta relied on by the plaintiff, there was no other Patta issued for the land around the land in question, which makes the existence doubtful. The boundaries indicated in the Patta did not match with the boundaries of the disputed plot. 9. The first appellate court also came to the conclusion that though the plaintiff claimed that she had the electricity connection for the plot in question, however, documentary evidence has not been produced and as such even her possession was not established and upheld the finding on issue nos. 1 and 2. The appellate court also upheld the finding regarding suit being barred/not maintainable in view of Section 31 of the Act, 1961 and consequently dismissed the appeal. 10. 1 and 2. The appellate court also upheld the finding regarding suit being barred/not maintainable in view of Section 31 of the Act, 1961 and consequently dismissed the appeal. 10. Learned counsel for the appellant made submissions that both the courts below fell in error in dismissing the suit and appeal filed by the appellant inasmuch though a simple suit for injunction was filed by the appellant based on the possession, the same was tried as if it was a suit for declaration, which is not permissible in law and on that count the judgments impugned give rise to substantial question of law. Reliance was placed on the judgment in Prataprai N. Kothari vs. John Braganza, (1999) 4 SCC 403 . 11. Further submissions were made that the two courts below were not justified in coming to the conclusion that the suit was barred under the provisions of Section 31 of the Act, 1961. 12. Submissions were also made that Khasra no. 719 is a big chunk of land and out of the said Khasra, the plaintiff was allotted a piece of land, however, the defendant, based on their allotment in Khasra no. 719, were seeking to dispossess the plaintiff, which only reflects their high handed behaviour without taking due process and, therefore, the findings of two courts below, based on the allotment in favour of the respondent-defendant, is perverse. 13. It was prayed that as the appeal gives rise to substantial questions of law, the same be admitted. 14. Learned counsel for the respondent vehemently opposed the submissions. It was submitted that the two courts below have concurrently come to the conclusion that the plaintiff failed to prove the Patta and the fact that same pertained to the disputed plot and that even her possession of the disputed plot was not found proved. The said findings are findings of fact, which do not give rise to any substantial questions of law. 15. Further submissions were made that both the courts below have critically examined the evidence available on record and have arrived at concurrent findings on all the issues, and the findings being based on available material, the same do not give rise to any substantial question of law. 16. 15. Further submissions were made that both the courts below have critically examined the evidence available on record and have arrived at concurrent findings on all the issues, and the findings being based on available material, the same do not give rise to any substantial question of law. 16. It was emphasized that both the courts below have found the suit as barred under Section 31 of the Act, 1961 and apparently the said finding of the two courts below has not even been challenged in the present second appeal as neither any ground in this regard has been put forth in memo of appeal nor any substantial question of law has been suggested on the said aspect and on that count alone the appeal deserves to be dismissed. 17. I have considered the submissions made by learned counsel for the parties and have perused the judgments as well as record of both the courts below. 18. The suit was filed by the plaintiff seeking permanent injunction asserting her title over the suit property based on the Patta (Ex. 6) and the fact that she was in possession of the land in question. The suit was contested by the respondent based on the plea that the land in question was part of the allotment made to it, the Patta relied on by the plaintiff did not pertain to the plot in question and that she was not in possession of the plot in question. Besides the said aspect, it was stated that the suit was barred under Section 31 of the Act. 19. Both the courts below after going through the nature of document (Ex. 6) relied on by the plaintiff and oral evidence led in this regard, came to the conclusion that in view of nature of document, which was incomplete, only half portion was produced, the first page did not bear signature of the Collector and that the proceedings undertaken in this regard were not produced, did not find the document worth placing reliance for the purpose of claim raised by the plaintiff. Further, the two courts below concurrently found that apparently there was nothing on record to connect the Patta with the land in question and that the plaintiff failed to prove her possession over the plot in question. Further, the two courts below concurrently found that apparently there was nothing on record to connect the Patta with the land in question and that the plaintiff failed to prove her possession over the plot in question. The courts below also came to the conclusion that as the respondent Samiti was allotted the land in question, the claim made by the plaintiff in this regard could not be countenanced. 20. Learned counsel for the appellant failed to point out any perversity whatsoever in the concurrent findings recorded by the two courts below so as to give rise to any substantial question of law for being agitated in the present second appeal. 21. The submissions made based on the fact that as the suit was filed for permanent injunction, the two courts below could not have decided the title by placing reliance on the judgment in the case of Prataprai N. Kothari (supra), are also without any substance inasmuch as the plaintiff herself claimed title based on the Patta and had tried to establish her possession based on indication made in the Patta. It was open for the courts below to come to the conclusion regarding nature of the document sought to be relied on by the plaintiff. Nowhere the courts below have come to the conclusion that as the land in question has been allotted to respondent-Samiti, it was entitled to the land in question irrespective of appellant's possession and as such, the plea raised in this regard also has no substance. 22. There is substance in the submissions made by learned counsel for the respondent that both the courts below have concurrently found the suit being barred under Section 31 of the Act, 1961 and in the memo of appeal the appellant has not questioned the validity of the finding of the two courts below on the said issue of maintainability. 23. Besides the above, though the appellant filed an application under Section 100 (5) CPC for adding additional substantial question of law, still the said aspect has not been challenged. 24. The provisions of Section 31 of the Act, 1961 read as under: "31. 23. Besides the above, though the appellant filed an application under Section 100 (5) CPC for adding additional substantial question of law, still the said aspect has not been challenged. 24. The provisions of Section 31 of the Act, 1961 read as under: "31. Bar of suit in absence of notice.-(1) No suit shall be instituted against any market committee or any member, officer or servant thereof or any person acting under the direction of any such market committee member, officer or servant for anything done or purporting to be done in good faith as such member, officer or servant under this Act until the expiration of two months next after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a market committee delivered or left at its office and, in the case of any such member, officer, servant or person as aforesaid, delivered to him or left at his office or usual place of abode and the plaint shall contain a statement that such notice has been so delivered or left. (2) Every such suit shall be dismissed unless it is instituted within six months from the date of the accrual of the alleged cause of action." 25. Admittedly, no notice as required under Section 31 of the Act was issued by the plaintiff-appellant to the respondent Market Committee and as such, the two courts below were justified in coming to the conclusion that the suit was barred in view of express provisions of Section 31 of the Act, 1961 and, therefore, the challenge to the finding on said issue besides having not been questioned by the appellant in the memo of appeal, has no substance. 26. In view of the above discussion, the appeal does not give rise to any substantial question of law, the same, therefore, has no substance and is consequently dismissed.