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2022 DIGILAW 1719 (RAJ)

Kanta v. Lrs Of Chandmal

2022-05-23

RAMESHWAR VYAS

body2022
ORDER 1. This Second appeal under Section 100 CPC has been filed against the judgment and decree dated 31.08.2019 passed by the Additional District Judge, Bali, District Pali in Civil Misc. Appeal No.30/2010, whereby the appeal filed against the judgment dated 04.05.2010 passed by the Civil Judge (J.D.) Bali, District Pali in Civil Original Suit No.62/1998 was dismissed. 2. The original Plaintiff-Chandmal (respondent No.1 herein) filed a suit for possession and mesne profit against Mishrimal and others i.e. appellant and respondent Nos.2 to 4 herein, with the averments that allotment of plot No.28 situated in Gram Panchayat, Khudala was made in his favour on 25.08.1974. In southern side, plot No.29 belonging to his brother Sunderlal existed. After obtaining permission by him and his brother Sunderlal, common boundary wall of both the plots were raised. It was further averred that defendant encroached upon some portion of his plot No.28 in the year 1991. This fact came in the knowledge of the plaintiff on 08.06.1992, when he came to Falna. Defendant denied to remove the encroachment. Plaintiff filed the suit for possession of the land encroached by defendant, which is marked with green colour in the map filed with the plaint. Defendant denied allotment of plot No.28 to the plaintiff. He also averred that surrounding of the plot did not match with patta issued by the Gram Panchayat. Plaintiff himself admitted that in original patta, correct neighborhood was not mentioned. In this regard, plaintiff was required to file suit for declaration against the Gram Panchayat. Patta was void-ab-initio. Defendant did not make an encroachment, whereas, he was having legal possession on the plot purchased by him through registered sale deed. As per averments made by defendant, one Ratanlal purchased three plots, each measuring 20x40 feet from one Magraj. Out of those three plots, two plots were sold by Ratanlal to Anraj, Munna Bai w/o Mishrilal and Ashabai on 05.08.1980. After selling two plots, remaining one plot was in possession of Amritlal adopted son of Ratanlal. They were not been arrayed as party defendant, whereas, they were necessary parties. On the above ground, defendant prayed to dismiss the suit. 3. Learned trial court after trial, decreed the suit of Chandmal. 4. The trial court came to the conclusion that Plot No.28 was allotted to plaintiff on 25.08.1974 by Gram Panchayat. They were not been arrayed as party defendant, whereas, they were necessary parties. On the above ground, defendant prayed to dismiss the suit. 3. Learned trial court after trial, decreed the suit of Chandmal. 4. The trial court came to the conclusion that Plot No.28 was allotted to plaintiff on 25.08.1974 by Gram Panchayat. The trial court also came to the conclusion that while issuing the patta, due to inadvertence, wrong surroundings were mentioned. The neighbors mentioned in the plaint were found correct. The learned trial court found that defendant did not encroach upon the land marked in the map as E, F, B, I. After analyzing the evidence, learned trial court decreed the suit against which defendants filed appeal before the Additional District Judge Bali, District Pali, which was dismissed on 31.08.2019. Aggrieved with the judgments above, this second appeal has been filed. 5. Heard learned counsel for the parties and perused the record. 6. Learned counsel for the appellant submits that patta did not bear signature of the officer; plaintiff failed to prove that he was in possession over the same land for which patta was granted. No officer of the Nagar Palika was produced as witness to prove the patta of the plaintiff. Plaintiff himself admitted that correct surroundings were not mentioned, however, plaintiff did not apply for required correction in the patta. Learned counsel for the appellant submits that the judgment of the first appellate court is in contravention of the provisions of Order 41, Rule 31 CPC. In this regard, learned counsel for the appellant has relied on the judgment of Hon'ble Apex Court in the matter of U.P.S.R.T.C. vs. Kumari Mamta and Ors. AIR 2016 SC 948 in which, Hon'ble Apex Court set aside the order of the High Court which did not satisfy the requirement of Order 20, Rule 4(2) read with Section 41, Rule 31 CPC., on the other hand, learned counsel for the respondent submits that patta was issued in favour of the plaintiff in the year 1974 which has not been challenged anywhere. There is concurrent findings of both the courts below. There is no substantial question of law involved in this appeal and same is liable to be dismissed. 7. There is concurrent findings of both the courts below. There is no substantial question of law involved in this appeal and same is liable to be dismissed. 7. Having regard to the submissions made by counsel for the parties and after perusal of the record, this Court is of the opinion that in view of the concurrent findings of both the courts below, allotment of the land in favour of the plaintiff cannot be disputed. Patta relates back to the year 1974 which has not been challenged. The defendant cannot challenge the legality of this patta in this appeal. The anomaly in mentioning the neighborhood has been explained by the plaintiff and found satisfactory by both the courts below. There is no perversity in the judgments while appreciating the evidence produced by the parties. Plaintiff is not required to file suit for any declaration. This Court is not in agreement with the contention of the learned counsel for the appellant that plaintiff is required to file declaratory suit. 8. In this case, Gram Panchayat or Municipality Board are not required to be arrayed as party respondent. It is also not correct to say that first appellate court passed order in violation of the provisions of Order 41, Rule 31 CPC. Each and every issue framed by the trial court has also been decided by the appellate court separately. The substantial question of law proposed by the appellant are not acceptable. 9. In view of the above facts and circumstances, this Court finds that no substantial question of law is involved in this appeal for consideration of this court. 10. Resultantly, the second appeal is dismissed at admission stage.