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2021 DIGILAW 92 (RAJ)

Shanti Devi v. Urban Development Trust

2021-01-13

ARUN BHANSALI

body2021
JUDGMENT 1. This appeal is directed against judgment and decree dated 27.02.2013 passed by Civil Judge Senior Division No.3, Bikaner, and judgment and decree dated 20.02.2019 passed by Additional District Judge No.1, Bikaner, whereby, the suit and appeal filed by the appellant have been dismissed, respectively. 2. The suit was filed by the appellant plaintiff for permanent injunction against respondent Urban Improvement Trust and one Mr. Tara Chand and Smt. Sunita for restraining the Urban Improvement Trust from issuing lease deed in favour of defendants No.3 & 4. It was inter alia claimed in the suit that land comprising in Khasra No. 178 was in possession of plaintiff's husband, wherein, a house was constructed and he started living therein and the first wife of plaintiff's husband died in the year July 1991, thereafter, the plaintiff contracted marriage in January 1992, her husband expired in May 1998 and she continued to remain in possession. It was claimed that Urban Improvement Trust issued the notice on 10.01.2001 for conversion of agricultural land and for regularization, for which, application was filed and based on which, on 30.03.2001, lease deed was issued to the plaintiff and the same was registered on the same date. 3. It was also claimed that the defendants No.3 & 4 got a sale deed of the land executed in their favour from one Nand Kishore, who has no right in the property and that the defendants 3 & 4 got issued a lease deed in their favour, which was void. It was claimed that the said document was got executed to deprive the plaintiff of her right in the leased property and, therefore, the injunction was sought against the Urban Improvement Trust from issuing lease deed in favour of defendants No.3 & 4. 4. The suit was resisted by the Urban Improvement Trust as well as defendants No.3 & 4, who contested the averments made in the suit and claimed that the plaintiff was not in possession of the land in question, the land belongs to defendants No.3 & 4, who have been rightly issued the lease deed. 5. Based on the averments made by the parties, the trial court framed nine issues. On behalf of the plaintiff, four witnesses were examined and in rebuttal evidence, again two witnesses were examined and certain documents were exhibited. 5. Based on the averments made by the parties, the trial court framed nine issues. On behalf of the plaintiff, four witnesses were examined and in rebuttal evidence, again two witnesses were examined and certain documents were exhibited. On behalf of the defendants, two witnesses were examined and certain documents were got exhibited. 6. After hearing the parties, the trial court came to the conclusion that the plaintiff failed to prove her possession on the suit property, it was not necessary to examine as to whether defendant No.2 - Nand Kishore could have transferred the property to defendants No.3 & 4, the plaintiff had got issued the lease deed by fraud and that the plaintiff was not entitled for grant of any injunction and consequently, dismissed the suit. 7. Feeling aggrieved, the appellant filed first appeal. 8. The First Appellate Court by an exhaustive judgment running into 53 pages, again recorded findings on all the issues and reiterated the findings recorded by the trial court and consequently, dismissed the appeal. 9. Learned counsel for the appellant made submissions that the two courts below were not justified in recording the finding regarding the plaintiff having obtained the lease deed by practicing fraud. Submissions have been made that the lease deed issued to the plaintiff was canceled by the UIT without affording any opportunity of hearing and as such, the cancellation was void ab initio and, therefore, once for the land in question, already a lease deed has been issued to the plaintiff, the same could not have been issued to defendants No.3 & 4 and, therefore, the findings recorded by the two courts below deserve to be quashed and set aside and the determination made by the two courts below though concurrent give rise to substantial question of law. 10. Learned counsel appearing for respondent No.8 supported the judgment impugned. It was submitted that both the courts have recorded concurrent-findings of facts, which do not call for any interference by this Court as plaintiff has failed to point out any perversity. Submissions were made that the suit was filed on 17.07.2001 seeking injunction against issuance of the lease deed and in the plaint itself, it was indicated that lease deed had already been issued to defendants 3 & 4 and, therefore, the suit by its very nature, was in fructuous and should have been dismissed on that count alone. Submissions were made that the suit was filed on 17.07.2001 seeking injunction against issuance of the lease deed and in the plaint itself, it was indicated that lease deed had already been issued to defendants 3 & 4 and, therefore, the suit by its very nature, was in fructuous and should have been dismissed on that count alone. It was prayed that the appeal be dismissed. 11. I have considered the submissions made by counsel for the parties and have perused the material available on record. 12. A perusal of the plaint indicates that a simple suit for injunction was filed with the averments that the lease deed issued in favour of the plaintiff has been canceled and that the another lease deed was being issued in favour of the defendants i.e. instead of seeking a declaration regarding the cancellation of lease deed in favour of the plaintiff, a simple suit for injunction was filed. 13. Further by way of written statement, when it had come on record that already a lease deed had been issued in favour of defendants No.3 & 4, no attempts were made to seek amendment in the suit and claim the relief either of cancellation of the order whereby, the plaintiff's lease was canceled and / or setting aside of the lease deed in favour of defendants No.3 & 4.In view of the above status, the suit as filed by its very nature, could not be proceeded further and / or be maintained. However, irrespective of the said aspect, both the courts below have concurrently found that the entire claim of the plaintiff regarding possession of the land in question was contrary to the evidence available on record and it was found that the sale deed is in favour of defendants No.3 & 4 and they were in possession of the property. Once the very foundation, based on which, the lease deed was issued in favour of the plaintiff, was found against the plaintiff, the Court was justified in coming to the conclusion that the lease deed was got issued fraudulently. The findings on the basic aspects being finding of facts and the two courts below having found concurrently against the plaintiff and the counsel for the appellant having failed to indicate any perversity in the findings recorded by the two courts, the said aspects do not give rise to any substantial question of law. The findings on the basic aspects being finding of facts and the two courts below having found concurrently against the plaintiff and the counsel for the appellant having failed to indicate any perversity in the findings recorded by the two courts, the said aspects do not give rise to any substantial question of law. 14. So far as the submissions made regarding cancellation of the lease deed without affording any opportunity of hearing is concerned, as noticed hereinbefore, the plaintiff despite being aware of the cancellation did not seek any relief qua the said cancellation in the suit and as such, the submissions made in this regard have no effect. 15. In view of the above discussion, the appeal has no substance. The same, is therefore dismissed.