Dismissed

Municipal Board, Barmer v. Barmer Bhawan Nirman Sehakari Samiti Ltd.

Rajasthan HC16 Aug 2021CSA/30/2017

Case brief

AI extract

What is this about?

In S.B. Civil Second Appeal No. 30/2017, the Hon'ble High Court of Rajasthan at Jodhpur dismissed the appeal by the Municipal Board. The court upheld the first appellate court's decree allowing a suit for injunction, holding that the Commissioner's testimony and report were admissible and justified the rejection of the defendant's plea regarding jurisdiction.

What did the court decide?

The appeal was dismissed with no substance, affirming the first appellate court's judgment in favour of the respondents.

Municipal Board, Barmer Vs Barmer Bhawan Nirman Sehakari… — Land Acquisition | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Second Appeal No. 30/2017

¶3

Municipal Board, Barmer Through Commissioner

¶4

----Appellant

¶5

Versus

¶6

Barmer Bhawan Nirman Sehakar Samiti Limited, Barmer Through Vice President - Shri Toda Ram S/o Shri, Resident Of Barmer

¶7

----Respondent

¶8

For Appellant(s)	: Mr. R.K. Thanvi, Sr. Advocate assisted
	by Mr. Narendra Thanvi.
For Respondent(s)	: Mr. Rakesh Arora.

¶9

HON'BLE MR. JUSTICE ARUN BHANSALI

¶10

Order

¶11

16/08/2021

¶12

This appeal is directed against judgment dated 22.07.2016 passed by the Additional District Judge No. 1, Barmer, whereby the appeal filed by the respondents against the judgment and decree dated 31.07.2010 passed by the Civil Judge (Sr. Division), Barmer has been allowed and the suit filed by the respondentplaintiff for injunction has been decreed.

¶13

A suit was filed by the plaintiff-Cooperative Society, inter alia, with the submissions that the land admeasuring 9 bigha 6 biswa in Khasra No. 1179/2 at Barmer was owned by it, the land was converted by the District Collector in case No. 21/1982, for which patta dated 16.01.2002 was issued. It was alleged that the defendant by claiming plots No. 1 to 18 & 40 and 41, which were of ownership and possession of the plaintiff as indicated on the map, was bent upon auctioning the same. The auction notice was

¶14

(2 of 5) [CSA-30/2017]

¶15

issued, which is cause of action for filing of the suit. It was prayed that the defendant be restrained from auctioning the plots in question.

¶16

Written statement was filed by the appellant-defendant, inter alia claiming that the area of land purchased by the plaintiff is already in its possession and the land comprising plots No. 1 to 18 & 40 and 41 is beyond that particular land. The disputed portion is not part of the land belonging to the plaintiff and is owned by the defendant. The plaintiff was required to file a suit for declaration and possession. It was claimed that the value of the suit property was about Rs.20,00,000/- and as such the same was not maintainable for lack of pecuniary jurisdiction.

¶17

The trial court framed five issues. One behalf of the plaintiff, two witnesses were examined and thirteen documents were exhibited. On behalf of the defendant, two witnesses were examined and five documents were exhibited.

¶18

After hearing the parties, the trial court came to the conclusion that PW-1 was not aware of the fact that the plots, which were put to auction by the defendant, whether were owned by the plaintiff or not. Qua the statement of DW-1, who indicated that the disputed plots were part of Khasra No. 1179/2 and that the defendant did not own any land in the said Khasra, did not accept the said plea and claimed that the plaintiff has to stand on his own legs.

¶19

Regarding the site report produced as Exhibit-10, the trial court came to the conclusion that as the said Commissioner was not examined, the report was of no avail and, consequently, decided that the plots sought to be auctioned by the defendant were not part of the land owned by the plaintiff.

¶20

(3 of 5)

¶21

[CSA-30/2017]

¶22

The plea regarding pecuniary jurisdiction was negated. It was held that the suit for declaration and possession should have been filed. Consequently, the suit was dismissed.

¶23

Feeling aggrieved, first appeal was filed. The first appellate court, after hearing the parties, came to the conclusion that from the statements of DW-1, the Commissioner, Municipal Board, it was apparent that the disputed plots were in Khasra No. 1179/2 and that the Municipal board did not own any land in Khasra No. 1179/2 and that the Board owned land only in Khasra No. 1180.

¶24

The first appellate court also relied on the site report (Exhibit – 10), wherein it was specifically indicated that the disputed plots were in Khasra No. 1179/2 and that in the auction notice, no Khasra Number was indicated. Consequently, the appeal was allowed and decree was passed in favour of the plaintiff.

¶25

Learned counsel for the appellant made submissions that the first appellate court was not justified in disturbing the judgment of the trial court.

¶26

Submissions were made that the plaintiff had failed to establish his right over the disputed land and as such, the judgment impugned gives rise to substantial questions of law.

¶27

Submissions were also made that the first appellate court could not have relied on the statements of DW-1 and DW-2 for holding in favour of the plaintiff and that the Commissioner report also could not have been used for accepting the appeal filed by the plaintiff and for decreeing its suit, which also gives rise to substantial questions of law.

¶28

Learned counsel for the respondent supported the judgment impugned.

¶29

(4 of 5)

¶30

[CSA-30/2017]

¶31

I have considered the submissions made by learned counsel for the parties and have perused the material available on record alongwith record of the two courts below.

¶32

The trial court essentially by holding that the statements of defendant even if they supported the case of the plaintiff, cannot be relied on for the benefit of the plaintiff and that as the Commissioner’s Report (Exhibit-10) was not proved by producing the Commissioner, came to the conclusion that the plaintiff had failed to establish his case.

¶33

As noticed hereinbefore, the first appellate court reversed both the said basis. The principle that the plaintiff is required to stand on his own legs and cannot rely on the weaknesses of the defendant, cannot be applied in a case of present nature, wherein, the admitted case between the parties was that disputed land formed part of Khasra No. 1179/2 and that the Board did not own any land in Khasra No. 1179/2.

¶34

DW-1 i.e. the Commissioner of the Board appeared in the witness-box and admitted that the disputed land was part of Khasra No. 1179/2 and that the Board did not own any land in Khasra No. 1179/2.

¶35

Once the statement by the Commissioner of the Municipal Board as categorical as above come on record, there was no reason not to accept the plea of the plaintiff based on such a statement.

¶36

Further, the trial court without looking into the nature of documents, rejected the Commissioner’s report (Exhibit-10).

¶37

A perusal of the documents indicate that the said report was prepared by the Patwari, Barmer pursuant to the order (Exhibit-9) passed by the SDO, Barmer in a proceeding initiated

¶38

(5 of 5)

¶39

[CSA-30/2017]

¶40

by the plaintiff against the Municipal Board under Section 128 of the Rajasthan Land Revenue Act, 1956, which provides for decision on all disputes concerning boundaries by the Land Records Officer.

¶41

The report was prepared by the Commissioner, wherein the officers of the Board were initially present and, thereafter by indicating that they have some other work, left the site. The Commissioner in his report categorically indicated that the Board was digging foundation in Khasra No. 1179/2 and indicated the same by yellow colour in the Map (Exhibit – 11) and in his report also clearly indicated that the same formed part of the land, owned by the plaintiff.

¶42

Once the report was prepared pursuant to the order passed inter se parties and the same was marked as exhibit by the plaintiff, there apparently is no reason for not relying on the said report prepared by the Commissioner i.e. Patwari and his report was produced before the SDO in the proceedings for determination of the boundaries and as such, the rejection of the said report by the trial court also could not be sustained and the first appellate court was justified in relying on the said report for holding in favour of the plaintiff.

¶43

In view of the above discussion, the arguments raised by learned counsel for the appellant do not give rise to any substantial question of law.

¶44

Consequently, the appeal has no substance, the same is, therefore, dismissed.

¶45

(ARUN BHANSALI),J

¶46

15-PKS/-

Municipal Board, Barmer v. Barmer Bhawan Nirman Sehakari Samiti Ltd.

Case brief

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Municipal Board, Barmer v. Barmer Bhawan Nirman Sehakari Samiti Ltd.

Case brief

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What the court decided

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