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2021 DIGILAW 887 (RAJ)

Lehru Lal v. Lrs of Late Hari Ram

2021-04-27

ARUN BHANSALI

body2021
JUDGMENT Arun Bhansali, J. - This appeal under Section 100 CPC is directed against the judgment & degree dated 31.03.2012 passed by the Additional District Judge No.l, Udaipur, whereby the appeal filed by the appellant has been dismissed and judgment & decree dated 26.11.2007 passed by the Additional Civil Judge (Jr.Div.) No.l, North, Udaipur has been confirmed. 2. The suit was filed by Hari Ram - respondent No.l against Urban Improvement Trust CUIT'), its officer and appellant - Lehru Lal for permanent injunction. It was claimed that the plot of land, which was in the ownership and possession of the plaintiff was situated at Jhadol Road, which was purchased by the plaintiff from Gram Panchayat, Sisarma and is in occupation of the plaintiff. It was claimed that around the plot the plaintiff has constructed stone wall alongwith two rooms and kitchen. It was indicated that proceedings were initiated by the UIT qua the said plot, however, finding the possession as legal, the proceedings were dropped. It was alleged that the defendants and their employees came at the site on 21.05.1987 and demolished the wall and part of the house without any right and information, for which, the plaintiff was filing separate suit for compensation. It was alleged that the plaintiff was being threatened that either he himself should remove the construction or the same would be removed by the defendants. Based on the said averments, permanent injunction against the defendants was sought. 3. Written statement was filed by the defendant - UIT denying the averments made in the plaint. It was claimed that the land comprised in Araji No.809 is allotted to the defendant, which was Bilanam Government land prior to the allotment made on 20.01.1987. It was indicated that from the record of the Gram Panchayat, Sisarma, the plot as claimed by the plaintiff was neither allotted nor sold. If any construction has been raised by the plaintiff, the same was as trespasser, for which, he has no right. As the plaintiff is a trespasser, the defendants have right to remove him. It was indicated that from the record of the Gram Panchayat, Sisarma, the plot as claimed by the plaintiff was neither allotted nor sold. If any construction has been raised by the plaintiff, the same was as trespasser, for which, he has no right. As the plaintiff is a trespasser, the defendants have right to remove him. It was indicated that the land comprised in Araji No.809 min was 43 Bigha 18 Biswa, which was a Government land prior to 20.01.1987, the same was never allotted to Panchayat and was also not abadi land and the same has been allotted to UIT by the revenue department on 20.01.1987 and as such, the suit was liable to be dismissed. 4. The appellant- defendant No.3 Lehru filed a written statement disputing the right of the plaintiff to file the suit. It was denied that any plot was sold by Gram Panchayat, Sisarma to the plaintiff, the patta relied on was fabricated. It was claimed that the property belonged to Maufidars and the same was transferred by a legal patta to Nandaji, defendant No.3's father, which continuous to be in possession of the defendant No.3. It was alleged that the plaintiff has filed a suit in collusion with the defendant Nos.l & 2, who have no right in the plot and as such, the suit was liable to be dismissed. 5. The defendant No.3 - appellant, in additional plea / counter claim, raised in the written statement claimed that he was entitled to retain possession of the plot in question and as such, sought injunction against the defendant No.l from interfering in his possession. The trial court framed six issues. 6. On behalf of the plaintiff, three witnesses were examined. On behalf of the defendants, five witnesses were examined alongwith documentary evidence. 7. After hearing the parties, the trial court came to the conclusion that the plaintiff has neither produced the patta nor got it exhibited. No documents pertaining to getting possession of the plot was produced. Further no receipt pertaining to allotment was produced and as such, the plaintiff failed to prove that the disputed plot was allotted by Gram Panchayat, Sisarma. After hearing the parties, the trial court came to the conclusion that the plaintiff has neither produced the patta nor got it exhibited. No documents pertaining to getting possession of the plot was produced. Further no receipt pertaining to allotment was produced and as such, the plaintiff failed to prove that the disputed plot was allotted by Gram Panchayat, Sisarma. Qua the claim made by the defendant No.3, the trial court came to the conclusion that the defendant No.3 failed to produce any proof that the land in question belonged to Maufidars, there was no entry pertaining to the patta in the revenue records, no permission was sought before raising construction and after analysing the oral & documentary evidence led in this regard, came to the conclusion that the defendant No.3 failed to prove that the land was purchased by his father from Maufidars, consequently, the suit filed by the plaintiff and counter claim filed by the defendant No.3 - appellant were rejected. 8. Feeling aggrieved, the appellant - defendant No.3 filed first appeal. The plaintiff also filed first appeal. 9. The first appellate court, after hearing the parties, came to the conclusion that there was no substance in either of the appeals filed by the plaintiff and defendant No.3 and consequently, dismissed both the appeals. 10. While dealing with the appeal filed by the appellant-defendant No.3, the appellate court came to the conclusion that it was necessary for the appellant to prove that the person, who gave patta to the appellant's father Nanda was in-fact a Maufidar, who had patta bahi and the same contained patta in the name of Nanda. The appellate court also came to the conclusion that the patta Ex.-A/l did not indicate any measurement or area and as to in which Araji the patta was given, was also not indicated. Further the patta was not got proved either from the record of the Maufidars or their legal representatives and as such, the land comprised in the patta for lack of measurement, area, boundaries or specific indication was not proved and in absence of documentary evidence, the oral evidence was of no value and consequently, dismissed the appeal filed by the appellant. 11. Learned counsel for the appellant attempted to make submissions with reference to the patta Ex.-A/1. 12. 11. Learned counsel for the appellant attempted to make submissions with reference to the patta Ex.-A/1. 12. It was claimed that the trial court and the first appellate court were not justified to ignore the patta in question, inasmuch as, the appellant had produced oral evidence in support of his possession and the fact that the patta was issued by Maufidars and therefore, both the courts fell in error in not accepting the counter claim filed by the appellant. 13. Learned counsel for the respondent - UIT made submissions that the two courts below have concurrently found that the appellant has failed to prove that so-called Maufidars had the right to issue the patta and/or the patta in-fact was issued by them and as such, the submissions made by learned counsel for the appellant do not give rise any substantial question of law and the appeal, therefore, deserves to be dismissed. 14. I have considered the submissions made by learned counsel for the parties and have perused the material available on record as well as material made available by learned counsel for the appellant for perusal of the Court. 15. In a suit for injunction filed by the plaintiff - Hari Ram, the defendant No.3 - appellant Lehru Lal, besides contesting the case of the plaintiff - Hari Ram sought counter claim against co-defendant UIT based on the patta said to have been issued by Maufidars of the land in his possession. 16. At the outset, it may be noticed that the counter claim filed by the appellant-respondent was solely directed against the co-defendant UIT, whereby permanent injunction was sought against the defendant No.l - UIT not to interfere with his possession and in case, during pendency of the suit he is dispossessed, possession be got restored. It is well settled that a counter claim directed solely against the co-defendant cannot be maintained. 17. Hon'ble Supreme Court in Rohit Singh & Ors. v. State of Bihar & Ors. : (2006) 12 SCC 734 , inter-alia, laid down as under :- "18. Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter- claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter- claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an interpleader suit. Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counter-claim, in our view, should not have been entertained by the trial court." (emphasis supplied) 18. In view of the above, the counter claim as filed by the appellant, thought purportedly against the plaintiff as well as the defendant No.l, the same being essentially directed against the UIT, was not maintainable. However, both the courts on examining the patta Ex.-A/1, which was sheet anchor of the appellant's case in the counter claim, pointed out the chinks in the said patta, wherein the patta did not indicate the measurement, area, boundaries and/or specific identification pertaining to the land, for which the same was allegedly issued. 19. In addition to the above, the courts also found that the land in question in-fact belonged to the Maufidars, who had purportedly issued the patta also, was not proved and consequently, came to the conclusion that the appellant was not entitled to the declaration as sought in the counter claim. 20. 19. In addition to the above, the courts also found that the land in question in-fact belonged to the Maufidars, who had purportedly issued the patta also, was not proved and consequently, came to the conclusion that the appellant was not entitled to the declaration as sought in the counter claim. 20. Learned counsel for the appellant despite making attempts to establish that the patta in question conferred right on the defendant No.3 based on which he was entitled to seek declaration, failed to point out any perversity whatsoever in the consideration made by the two courts below and the deficiencies pointed out in the patta. 21. In view thereof, the judgments passed by two courts below do not give rise to any substantial question of law. Consequently, the appeal has no substance, the same is, therefore, dismissed.