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2021 DIGILAW 763 (RAJ)

Lrs Of Champa Lal v. Nagar Parishad Pali

2021-04-05

ARUN BHANSALI

body2021
JUDGMENT 1. This appeal has been submitted against the judgment & decree dated 04.04.2019 passed by the District Judge, Pali in Civil Appeal Decree No.33/2013, whereby the learned judge dismissed the appeal filed by the plaintiff-appellant against the judgment & decree dated 02.09.2013 passed by the Additional Civil Judge (Sr.Div.), Pali, dismissing Civil Original Suit No.56/2011 (201/2009) filed by the predecessor of the appellants seeking permanent injunction & declaration against the defendant. 2. The suit for permanent and mandatory injunction was filed by plaintiff Champalal on 24.10.2009, inter-alia, with the submissions that a plot purchased and in possession of the plaintiff was situated at Gurudwara road; the same was purchased by plaintiff's father Jasraj for a sum of Rs. 401/- on 22.08.1960, ever since, the plot was in his possession. It was averred that despite writing letters for issuance of patta, the patta has not been issued and therefore, a notice was got issued from his counsel in this regard, however, the patta has not been issued. It was claimed that on the plot a water tank constructed by the plaintiff was situated, which was demolished on 19.10.2009 by the employees of the Municipal Board or the contractor and attempts were made to illegally trespass over the plot. 3. It was alleged that the employees of the Municipal Board threatened that on the plot a community hall & toilet would be constructed. It was prayed that the injunction be granted against the defendant not to dispossess the plaintiff from the plot in question, interfere in use of the said plot and not to construct community hall & toilet. Mandatory injunction was sought for issuance of patta / sale deed in favour of the plaintiff. 4. Written statement was filed by the respondent Municipal Board, inter-alia, with the submissions that the suit was barred by limitation as the same has been filed after 48 years of the alleged purchase. The receipt and notice, which are the foundation of the suit, pertain to removal of debris, no land was sold to the plaintiff's father and that notice under Section 304 of the Rajasthan Municipalities Act, 2009 ('the Act') was not given and as such, the suit was not maintainable. 5. The receipt and notice, which are the foundation of the suit, pertain to removal of debris, no land was sold to the plaintiff's father and that notice under Section 304 of the Rajasthan Municipalities Act, 2009 ('the Act') was not given and as such, the suit was not maintainable. 5. Submissions were also made that on the suit plot, the respondent had constructed public toilet for women and now after removing the same, a community hall & a toilet for the use of general public is being constructed and for which a tender was issued. The land has remained in possession of the defendant and a foundation stone has been laid down on 22.10.2009, which has been demolished by the plaintiff. 6. Based on the pleadings of the parties, the trial court framed seven issues. 7. On behalf of the plaintiff, five witnesses were examined and ten documents were exhibited. 8. On behalf of the defendant, five witnesses were examined and three documents were exhibited. 9. After hearing the parties, the trial court came to the conclusion that it was not proved that the plaintiff was in possession of the suit plot; from the documents Ex.-A/2 & A/3, which pertained to issuance of tender, it was apparent that the disputed land was in the ownership and possession of the Municipal Board, qua the reliance placed on the so-called receipt, by which the plaintiff claimed to have purchased the plot, it was found that the same did not indicate any such sale. The court came to the conclusion that the documents merely pertained to the purchase of debris in auction. The suit was found within limitation and that the same was barred under the provision of Section 304 of the Act on account of non-issuance of prior notice and consequently, the trial court dismissed the suit. 10. Feeling aggrieved, the appellant filed first appeal. 11. The first appellate court, after hearing the parties, reiterated the finding recorded by the trial court regarding the documentExhibit-1 pertaining to only removal of the debris and not the sale of plot. The appellate court was also of the opinion that if the plot has been purchased by the plaintiff's father, he would have himself made an application in this regard and in absence of any document, it cannot be believed that the plot has been purchased by the plaintiff's father in the year 1960. 12. The appellate court was also of the opinion that if the plot has been purchased by the plaintiff's father, he would have himself made an application in this regard and in absence of any document, it cannot be believed that the plot has been purchased by the plaintiff's father in the year 1960. 12. The oral evidence led was discarded, being is contrary to the document Ex.1. The possession of the plaintiff was also negated, the finding on limitation was reversed and the suit was found as barred by limitation. The appellate court also came to the conclusion that for non-compliance of provisions of Section 304 of the Act also the suit was liable to be dismissed and consequently, dismissed the appeal. 13. It is submitted by learned counsel for the appellant that the plaintiff had specifically indicated in his plaint about existence of a water tank on the suit plot, which was not specifically denied by the defendant Municipal Board, which clearly proved the plaintiff's possession and therefore, the entire basis of the two courts below with regard to absence of possession on part of the plaintiff being wholly perverse, the same gives rise to a substantial question of law. 14. Further submissions have been made that the two courts below were not justified, based on the oral evidence led by the defendant, which was beyond the pleadings and as such, could not be relied on. The appellate court failed to consider the evidence and has simply upheld the finding recorded by the trial court and that aspect also gives rise to substantial question of law and therefore, the appeal be admitted. 15. Learned counsel appearing for the Municipal Board vehemently opposed the submissions. 16. It was submitted that the basis of the suit is that the plot is owned by the plaintiff and the said claim is based on the communication Ex.-l. A bare look at the said exhibit, would reveal that the claim made is absolutely bogus. 17. Submissions were also made that the Municipal Board is in possession of the plot of land and when it issued tender for the purpose of construction of the community hall & toilet, the plaintiff has made a wrongful claim seeking to claim ownership over the plot in question, which is wholly baseless. 17. Submissions were also made that the Municipal Board is in possession of the plot of land and when it issued tender for the purpose of construction of the community hall & toilet, the plaintiff has made a wrongful claim seeking to claim ownership over the plot in question, which is wholly baseless. Both the courts have recorded concurrent findings of fact, which do not give rise to any substantial question of law and as such, the appeal deserves to be dismissed. 18. I have considered the submissions made by learned counsel for the parties and have perused the material available on record as well as the record of the two courts below. 19. The suit was filed with the foundational claim that the plot was purchased by the plaintiff's father for a sum of Rs. 401/- in auction and as such, the plot was owned by the plaintiff. The entire basis for claiming the ownership is a communication Ex.-l, which communication dated 22.08.1960 was issued by the Executive Officer of the then Municipality, Pali to the plaintiff's father. The communication, inter-alia, reads as under :- 20. A perusal of the above communication dated 22.08.1960 reveals that the debris of the toilet for women was auctioned, which was purchased by the plaintiff's father for Rs.401/- and the amount was deposited and therefore, he was called upon to remove debris before 30th August and clear the land. The communication is very specific with regard to deposit of Rs.401/-by the plaintiff's father as the auction money for the debris of the toilets for women. The filing of the suit by claiming above communication as a so-called admission on part of the respondent regarding sale of the plot to plaintiff's father is ex-facie distortion of the above communication. As such, the entire basis of the suit claiming ownership of the plot of land in question based on Ex.-l being wholly false and baseless, the same cannot and does not give rise to any substantial question of law. 21. So far as the plea raised regarding the plaintiff being in possession of the plot in question and inter-alia, claiming right to protect the same also, has no basis, inasmuch as, the plot in question is a open piece of land as is reflected from the photographs Ex.-9 & 10 with a broken boundary. 22. 21. So far as the plea raised regarding the plaintiff being in possession of the plot in question and inter-alia, claiming right to protect the same also, has no basis, inasmuch as, the plot in question is a open piece of land as is reflected from the photographs Ex.-9 & 10 with a broken boundary. 22. The oral evidence led by the plaintiff and defendant, is wholly contradictory to each other, while the plaintiff's witnesses have claimed that the plaintiff was in possession, however, the nature of possession has not been indicated and it has also not been indicated as to what use the plot in question was being put to by the plaintiff and on the other hand, the evidence led by the respondent, which included that of Executive Engineer of the Municipal Board, LDC of the Municipal Board, residents of the area, who indicated the possession of the Municipal Board. However, the plaintiff, except for oral assertions, failed to lead any evidence whatsoever to prove his possession over the plot of land and as such, it cannot be said that the two courts below committed any perversity in coming to the conclusion that the plaintiff has failed to lead evidence / prove his possession over the plot in question and as such, the plea sought to be raised based on so-called possession of the plaintiff apparently has no substance. 23. In view of the above discussion, as the plaintiff has failed to establish his title over the plot in question as the claim made based on Ex.-l is wholly incorrect and has failed to establish his possession over the plot of land, the appeal does not give rise to any substantial question of law. 24. Consequently, the appeal has no substance, the same is, therefore, dismissed.