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2024 DIGILAW 910 (RAJ)

Jain Shikshan Sangh v. State of Rajasthan

2024-07-01

BIRENDRA KUMAR

body2024
JUDGMENT : Birendra Kumar, J. - Heard the parties at the admission stage. 2. The first point for consideration is whether any substantial question of law is involved in this second appeal. If the answer goes in affirmative then the second point would be whether the application of the appellants under Order 41, Rule 27 CPC is fit to be allowed. 3. The appellants filed Civil Original Suit No.18/2002 for a decree of injunction restraining the respondents from demolishing the boundary wall and other constructions of the appellants as well as from taking over forceful possession. By the impugned judgment and decree dated 05.02.2010 passed by learned Civil Judge (JR. Division), Devgarh, District-Rajasamand in Civil Original Case No.18/2002, the learned trial judge dismissed the suit. The dismissal was challenged in Civil Appeal No.13/2013, which was also dismissed on 16.12.2015, hence this second appeal against concurrent finding of fact. 4. The case and claim of the plaintiff/appellants is that Mahaveer Brahmcharya Ashram for education and development of youth received donation of 7 bigha and 8 biswa of land by Thikanedar-Rawat Sangram Singh in the year 1951 through 'patta'. Some more land was donated, however without 'patta',. The appellant constructed a boundary wall on the entire portion and made construction of building as per requirement. Later on, the said Ashram was named as appellant-Jain Shikshan Sangh and the Jain Shikshan Sangh was registered under Rajasthan Societies Registration Act bearing Registration No.113/1968-69. The Sansthan was situated at Devgarh Madariya. By efflux of time, the Devgarh City expanded closure to the Society land and the respondent-Municipality started pressurizing to take forceful possession on the land of the appellants. 5. A Notice dated 23.06.2002 (Ex.5) was served on the appellants by the respondent-Municipality for vacating Plot Nos.3929, 3930 and 3931, which was either of the Municipality or of the State of Rajasthan (respondent No.1). Thereafter, the appellants filed the aforesaid suit on 24.07.2002. 6. The case of the respondents is that the appellants surreptitiously encroached over khasra Nos. 3929 and khasra No.3930 as well as khasra No.3931. Total encroached area was 1 bigha and 12 biswa. The respondents asserted that they are legally entitled and empowered to take possession over the encroached area under the Rajasthan Municipal Act, hence they have served the notice on the appellants to vacate. 3929 and khasra No.3930 as well as khasra No.3931. Total encroached area was 1 bigha and 12 biswa. The respondents asserted that they are legally entitled and empowered to take possession over the encroached area under the Rajasthan Municipal Act, hence they have served the notice on the appellants to vacate. The respondents further asserted that the appellants have not sought for declaration of title therefore relief for permanent injunction cannot be granted. Moreover, the respondents are entitled to recover possession of their land, which has been encroached over by the appellants. 7. After consideration of oral and documentary evidence, the learned trial judge dismissed the suit and the learned First Appellate Court affirmed the dismissal. 8. The following questions have been raised as substantial question of law involved in this second appeal:- "(i) Whether both the impugned judgment and decree are vitiated on account of misreading of evidence? (ii) Whether both the impugned judgment and decree are unsustainable in eyes of law on account of omission to consider vital evidence available on record? (iii) Whether after decision of issue no.2 against the respondents, the respondents put forcible take possession of a part of suit property in the manner done? (iv) Whether the finding on issue no.1 is illegal and perverse in view of admitted documents produce by the defendants?" 9. Learned trial judge had framed the following two issues:- (i) Whether the suit property is under possession of the appellants as title holder and as such the respondents had no authority to disposes the appellants. (ii) Whether the plaintiff/appellants had encroached over the land of the State of Rajasthan and Municipality and the respondents are entitled to recover possessions. Learned trial judge concluded that in fact khasra Nos. 3930, 3931 and 3929/1 are recorded either in the name of municipality or the State of Rajasthan and the appellants had encroached over a portion of the land as disclosed in the evidence as such the appellants were encroachers and accordingly, not entitled to have a decree of mandatory injunction against the respondents. However, learned trial court held that since the respondents have not put any counter claim, no decree for recovery of possession can be passed. 10. One development that took place after dismissal of first appeal on 16.12.2015 is that the respondents took over forceful possession, after demolition of the boundary wall, on their land on 31.12.2005. 11. However, learned trial court held that since the respondents have not put any counter claim, no decree for recovery of possession can be passed. 10. One development that took place after dismissal of first appeal on 16.12.2015 is that the respondents took over forceful possession, after demolition of the boundary wall, on their land on 31.12.2005. 11. The first question raised above is not made out as the finding of the courts below is not result of misreading of evidence. There is admission of party-appellant-Sohan Lal Jain (PW.1) that 'Jamabandi" produced by the appellant was only to the extent of 6 bigha and 16 biswas of land. Further admission is that Khasra Nos.3930 and 3931 is of Municipality and some of the portion of these khasras are within the boundary wall of the institution of appellants. PW.2-Fatehlal is cashier of the appellant-Society and he has expressed his ignorance whether land of Municipality has been encroached by the Society within its boundary wall, same is the evidence of other plaintiff/witnesses. PW.6-Smt. Mangi Bai has admitted that the appellant has possession over 1 bigha 2 biswas more than its land. 12. Besides aforesaid admission of the party-plaintiff/appellant No.1 and office bearer of the appellant-PW.6, Ex.4 is inspection report, which goes to show that land of Municipality was found within the campus of the appellants. 13. During course of arguments, learned counsel for the appellants could not substantiate that any important and vital evidence was not considered by the courts below. 14. Point No.3 cannot be considered in this second appeal and the legal remedy lies elsewhere. 15. Point No.4 above relates to re-appreciation of evidence which cannot be done in a second appeal, therefore it is held that the second appeal does not contain any substantial question of law, hence cannot be admitted for hearing. 16. Learned trial court had recorded a finding that there was no evidence to substantiate that old Brahmcharya Ashram was renamed as Jain Shikshan Sansthan. To fill up the aforesaid lacuna, vide application under Order 41, Rule 27 CPC, the appellants have produced resolution of the governing body to rename the institution and get it registered. There is no reasonable explanation that though this document was with the Society, it was not produced before the trial court or the First Appellate Court. 17. To fill up the aforesaid lacuna, vide application under Order 41, Rule 27 CPC, the appellants have produced resolution of the governing body to rename the institution and get it registered. There is no reasonable explanation that though this document was with the Society, it was not produced before the trial court or the First Appellate Court. 17. Moreover, even on acceptance of the aforesaid evidence, there is no chance in the factual scenario for grant or non-grant of main relief. Further as held above, the second appeal itself does not contain any substantial question of law and has not been admitted for hearing, hence the application under Order 41, Rule 27 CPC can't be accepted. 18. Next contention of learned counsel for appellants is that on the date of Notice in the year 2002, Municipality had no power to get ejectment from unauthorized occupants. This power was vested subsequently and the courts below have not considered this aspect. 19. Notice without power could have been challenged at the appropriate stage before appropriate forum. Moreover, only for the aforesaid reason, the appellants could not have been granted relief in the suit unless the appellants proved their title to get relief of injunction. 20. Both the courts below have concurrently agreed on the facts supported by the evidence that the appellants have failed to prove a case to get relief in a civil suit, hence the same is affirmed. 21. In the result, the second appeal as well as the application under Order 41, Rule 27 CPC stands dismissed.