This appeals against the first appellate court judgment confirming a permanent injunction in favor of the plaintiff-respondent. The High Court held that the appellants failed to prove the land belonged to the Municipal Board and reversed the trial court's dismissal of the suit.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Second Appeal No. 282/2011
Versus
Munawar Khan s/o. Masitullah Khan, aged 69 years, resident of Rajnagar, Tehsil and District – Rajsamand (Raj.)
----Respondent
For Appellant(s) : Mr. Yashwant Mehta. For Respondent(s) : Mr. Shambhoo Singh.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order
27/01/2021
This appeal is directed against the judgment and decree dated 20.08.2007 passed by the Additional District Judge (Fast Track), Rajsamand, whereby the appeal filed by the respondentplaintiff against judgment and decree dated 30.10.2003 passed by the Civil Judge (JD), Rajsamand, District – Rajsamand, has been set aside and the suit filed by the respondent-plaintiff has been decreed.
The suit for permanent injunction was filed by the plaintiff against the Municipal Board and its Executive Officer, inter alia, with the submissions that he was owner of the disputed plot, which was purchased by him by registered sale-deed on 28.12.1998 from Bhera, who was in possession over the plot for generations. It was indicated that the defendants gave a notice dated 02.01.2002 to the plaintiff alleging that he has trespassed over the land and, therefore, he must remove his possession over
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the plot in question. Reply to the notice was filed on 16.01.2002. However, during Trespass Removal Drive, he has been threatened that his possession shall be disturbed.
Based on the said submissions, the suit seeking permanent injunction was filed.
The appellants-defendants filed written statement denying the averments made. It was claimed that in Jamabandi for Samvat 2055 to 2058, the land in question was recorded as Bilanam Gair Kabil Rajkiya Bhumi and that the same was part of Khasra No. 788 admeasuring 9 bigha 4 biswa. It was claimed that the sale-deed was void, which cannot create any right in favour of the plaintiff. It was alleged that the plaintiff was a retired Revenue Inspector and without having a look at the title documents, he should not have purchased the plot in question. It was prayed that the suit be dismissed.
The trial court framed three issues. On behalf of the plaintiff, four witnesses were examined and two documents were exhibited. On behalf of the defendants, two witnesses were examined and two documents were exhibited.
After hearing the parties, the trial court came to the conclusion that Bhera had no title document and as the land was recorded as Government land, the plaintiff was required to take permission before raising construction and the title can be determined based on issuance of Patta only and came to the conclusion that the plaintiff was not entitled to any relief and rejected the suit.
Feeling aggrieved, the plaintiff filed first appeal. The first appellate court after hearing the parties, came to the conclusion that though the defendants have relied on the Jamabandi (Exhibit
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– D/1), which pertained to Khasra No. 788 admeasuring 9 bigha 4 biswa, however, it was not proved that the plot in question was part of Khasra No. 788. The appellate court also came to the conclusion that it is not proved on record that the land has been transferred to the Municipal Board by the Government so as to give jurisdiction to the Municipal Board to take proceedings for removal of the plaintiff and, consequently, allowed the appeal and granted injunction against the dispossession of the plaintiff.
Learned counsel for the appellants made submissions that from the Jamabandi (Exhibit – D/1), it is apparent that the land in question is Abadi land and is a Government land and, therefore, the appellate court was not justified in interfering with the judgment of the trial court.
Further submissions were made that the plaintiff was a retired Revenue Inspector and was aware of the requirements and despite that he has purchased the plot in question and, therefore, he cannot escape the consequences.
Submissions were made that the appeal involves substantial question of law, which needs determination by the Court.
Learned counsel for the respondent duly supported the judgment of the appellate court.
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 both the courts below.
A perusal of the Jamabandi (Exhibit-D/1) indicates that the copy was obtained on 12.07.2002 and even on the said date, the land was recorded as Government land and there was no indication that the appellant-Municipal Board had any right over the land in question/the same stood transferred to it by the
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Government. Further there is nothing available on record to indicate that the plot in question was part of Khasra No. 788 as claimed by the appellants, neither in the sale-deed produced by the plaintiff nor anywhere else, such an indication is available and as such the appellate court was justified in coming to the conclusion that the fact that he plot in question was part of Khasra No. 788 and that the Municipal Board had any right to remove encroachments from the land in question was missing, cannot be faulted.
In view thereof, the finding recorded by the first appellate court, cannot be said to be perverse so as to require interference by this Court. The appeal does not involve any substantial question of law.
In view of the above discussion, the appeal has no substance, the same is, therefore, dismissed.
(ARUN BHANSALI),J
50-PKS/-
2 issues framed by the court
Whether the finding of the first appellate court that the appellants failed to prove the disputed land belonged to them was perverse?
Whether the first appellate court was justified in allowing the plaintiff's appeal for permanent injunction regarding the disputed plot?
Municipal Board, Rajsamand and others
Munawar Khan
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
