Appeal dismissed against lower courts' order dismissing suit for injunction against eviction from public land. Court held trespasser needed eviction notice; lack of declaration suit precludes injunction.
Suit and appeal dismissed; no injunction granted.
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[CSA-98/2016]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Second Appeal No. 98/2016
Daulat Singh s/o Jodha Singh, aged 53 years, resident of Sewali, Rajnagar, District – Rajsamand.
----Appellant
Versus
Municipal Board, Rajsamand, District Rajsamand through Commissioner.
----Respondent For Appellant(s) : Mr. V.N. Kalla. Mr. R.R. Ankiya. For Respondent(s) : Mr. Yashwant Mehta.
HON'BLE MR. JUSTICE ARUN BHANSALI Order
10/02/2021
This appeal is directed against the judgment and decree dated 08.10.2013 passed by the Civil Judge (JD), Rajsamand and judgment and decree dated 06.02.2016 passed by the District Judge, Rajsamand, whereby the suit and appeal filed by the appellant-plaintiff have been dismissed, respectively.
The suit was filed by the plaintiff seeking injunction, inter alia on the ground that he was in possession of the suit Bada and that the respondent-Municipal Board was seeking to dispossess him.
The averments made in the suit were denied and it was indicated that the plaintiff has trespassed over the public land and as such he is not entitled to any injunction.
Based on the averments made by the parties, the trial court framed two issues pertaining to the valid possession of the plaintiff
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and as to whether the defendant had no right to dispossess the plaintiff.
On behalf of the plaintiff, three witnesses were examined and on behalf of the defendant, one witness was examined.
After hearing the parties, the trial court came to the conclusion that the PW-3 Shambhu Singh himself in his crossexamination indicated that the plaintiff has recently raised construction of garage/tin-shed at the disputed site and as the plaintiff was not in settled possession as soon as he trespassed over the disputed plot notice for eviction was given by the respondent-Municipal Board and as the suit was not filed seeking declaration, the suit was liable to be dismissed and, consequently, dismissed the suit.
Feeling aggrieved, the appellant filed first appeal. The first appellate court after hearing the parties, came to the same conclusion and dismissed the appeal.
Learned counsel for the appellant attempted to make submissions that even if the appellant has trespassed over the plot of land, he cannot be evicted without due process of law.
I have considered the submissions made by learned counsel for the appellant and have perused the material available on record.
Both the courts have concurrently found that the appellant had trespassed over the disputed plot of land and immediately he was issued notice for eviction by the respondent-Municipal Board, based on which he filed the suit seeking injunction.
The principle laid down in cases that even a trespasser cannot be evicted without due process of law pertains to cases where the trespasser is in settled possession. The said law cannot
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[CSA-98/2016]
be utilized for trespassing over the public land and then seek due process as even otherwise in the provisions of the Municipal laws, the Municipal Board has ample power to take possession of its land, which has been wrongly trespassed.
In view of the above, no substantial question of law is involved in the present appeal, the same is, therefore, dismissed.
(ARUN BHANSALI),J
53-PKS/-
1 issue framed by the court
Whether an appellant in settled possession can claim due process before eviction from public land, and if the suit for injunction can be maintained where there is no claim for declaration.
Daulat Singh
Municipal Board, Rajsamand
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
