Dismissed

Mahavir Prasad S/O Fauran Singh v. Jagan Singh S/O Sunder Singh (Deceased)

Rajasthan HC4 Aug 2022CSA/24/2021

Case brief

AI extract

What is this about?

A dispute concerned encroachment on a public road claimed to be 20 feet wide. The Court dismissed the second appeal, leaving intact the injunction protecting that width and dismissal of the purchasers’ counterclaim. It upheld maintainability of the injunction suit without declaratory relief and rejected the Section 91 CPC objection.

What the court decided

AI extract

Mahavir Prasad S/O Fauran Singh Vs Jagan Singh… — Municipal and Town Planning | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 24/2021

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Mahavir Prasad S/o Faurang Singh,

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Smt. Yamuna Devi W/o Shri Mahavir Prasad

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Both resident Of Dhansauti, Tehsil Kumher District Bharatpur at Present Resident Of Navgarh, Near Kunda, Bharatpur.

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----Appellant-Defendants

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Versus

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Jagan Singh S/o Sunder Singh (Deceased), Through Legal Heirs

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1/1. Smt. Kusum Faujdar W/o Late Shri Jagan Singh, aged about 55 years.

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1/2. Dr. Hemender Singh S/o Late Shri Jagan Singh, aged about 33 years.

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1/3. Himanshu Faujdar S/o Late Shri Jagan Singh, aged about 30 years All resident Of Gulzar Baag, Bharatpur.

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………..Respondent-Plaintiff

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Nagar Sudhar Nyas, Bharatpur, through Secretary, Nagar Sudhar Nyas, Bharatpur.

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----Respondent-Defendant

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For Appellant(s)	: Mr. R.K. Mathur, Sr. Advocate assisted by Mr. Aditya Kiran Mathur Mr. Hari Kishan Sharma
For Respondent(s)	: Mr. M.M. Ranjan, Sr. Advocate assisted by Mr. Rahul Kamwar

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HON'BLE MR. JUSTICE SUDESH BANSAL Judgment

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04/08/2022 REPORTABLE:

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Appellant-Defendants (hereafter referred to ‘defendants’) have preferred this second appeal under Section 100 of Civil Procedure Code against the judgment and decree dated 15.01.2021 passed in Civil First Appeal No.20/2019 by the Court of Additional District Judge No.1, Bharatpur whereby and whereunder the first appeal has been allowed and consequentially,

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the civil suit for permanent injunction filed by respondent-plaintiff, being civil suit No.26/2012, which was dismissed by the Additional Civil Judge No.1, Bharatpur, has been decreed against appellantdefendants No.1 and 2 in the manner that they will not make any encroachment and construction over 20’ wide way and if during pendency of the suit any construction has been made, the Urban Improvement Trust (hereafter referred to ‘U.I.T.’), Bharatpur would remove the same in accordance with law. Simultaneously, the counter claim made by appellant-defendants No.1 and 2 against the co-defendant No.3-U.I.T., Bharatpur has been dismissed. The operative portion of the impugned judgment and decree dated 15.01.2021 reads as under:-

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“अतः अपीलांट / व ा द ी गण की अपील और प्रततव ा द ी नंबर तीन कीक कक्रॉस आबजजकक्शन सवाीकीार कीरतक हे हुए व ा द ी कीा दीाव ा व ा सतक सताई तनषकिषेधाेधाजा ताज्ञा डिक तकीया जाता हज तकी प्रततव ा द ी नंबर एकी वा दी व दोअपनक पनरब (स ही तदीक्शा पत्चिम ) म तसतत 20 फुट चौडक रासतक पर की व दोई अततकमण वा तनमानण कीायन न हर्य नहींकीर और यतदी दीौरानक दीाव ा की व दोई तनमानण कीायन कीर भी तलया हज त व दोयन.आई.टी. तनयमानुसार उस तनमानण कीायन की व दो हटावाक और भतवाषय म इस रासतक पर की व दोई अततकमण न ह व दोनक दीकवाक तता प्रततव ा द ी कीा कीाउणटर कलकम ज व दोअिषेधीनसत ्थ नयायालय नक ताज्ञा डिक तकीया ता, की व दोख ा रिरज तकीया जाता हज। तदीनुसार संक्श व दोतिषेधत ताज्ञा डिक पचान बनाया जायक।”

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The civil suit for permanent injunction was instituted by the respondent-plaintiff (hereafter referred to ‘plaintiff’) on 28.12.2006, jointly against appellant-defendants No.1 and 2 and respondent-defendant No.3 U.I.T., Bharatpur, in relation to a way in question alleging its width as 20’ wide. It appears that after filing of the suit, the defendant Nos.1 and 2 made some unauthorized encroachment over the part of way in question and the defendant No.3-U.I.T., Bharatpur passed order dated 04.01.2007 under its power by virtue of Section 92 of Rajasthan

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(3 of 38) [CSA-24/2021]

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Municipalities Act, 1959 to remove such encroachment, therefore, defendants No.1 and 2 alongwith their written statement submitted on 08.01.2007 made a counter claim challenging the order dated 04.01.2007 for restraining the defendant No.3-U.I.T. not to demolish the construction pursuant to its order dated 04.01.2007. The trial court being Additional Civil Judge No.1, Bharatpur vide judgment and decree dated 27.02.2019, dismissed the plaintiff’s suit for permanent injunction, however decreed the counter claim of defendants No.1 and 2 restraining the defendant No.3-U.I.T., Bharatpur for not removing any construction from the disputed way without following due course of law. On filing first appeal thereagainst by the respondent-plaintiff, the judgment and decree dated 27.02.2019 has been quashed and counter claim of defendants No.1 and 2 has also been dismissed by the first appellate court being court of Additional District Judge No.1, Bharatpur vide impugned Judgment and decree dated 15.01.2021, which is impugned herein.

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The dispute between parties is in relation to a public way exists towards eastern side of the plaintiff’s house and western side of defendants’ house situated at Gulzar Baag Colony, opposite Multi purpose School, Bharatpur. Plaintiff’s claim is that this is a government and public way having width of 20’ whereas defendants contend that this is a ‘ Gali’ of only 10’ wide. Thus, the fundamental dispute is with regard to the width of this way/gali as to whether it is 20’ wide or 10’ wide. It is undisputed fact that this way/gali goes and leads to connect with main road from Achnera to Bharatpur.

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Relevant facts, in brief as culled out from the record, are that the respondent-plaintiff instituted a civil suit for permanent injunction on 28.12.2006 stating there that eastern side of his plot described in para No.1 of the plaint, 20’ wide road is situated which leads and connects to the main road of Achnera-Bharatpur. It was stated that this is a government and public way, which is shown in the land conversion order dated 11.09.1986 and approved map of plaintiff plot issued by the concerned land conversion authority while allowing the conversion of the plaintiff’s plot from agricultural to residential. It was stated that plot of defendants No.1 and 2 is situated towards western side of this way and defendants No.1 and 2 are inclined to encroach upon this way and going to raise construction over their plot without any permission from the defendant No.3-UI.T., Bharatpur including the way in question within area of their plot. The plaintiff also alleged to make a complaint to the defendant No.3-U.I.T., Bharatpur but its employees are said to be in connivance with defendants No.1 and 2 and not taking any action. The plaintiff made a prayer in the plaint that the suit be decreed against defendants and defendants No.1 and 2 be restrained by way of permanent injunction not to encroach upon the way in question by raising construction and if during the suit, defendants No.1 and 2 do raise any illegal construction over the land of way in question, the same be ordered to be demolished in order to maintain the way of 20' width and further the defendant No.3-U.I.T., Bharatpur be directed to stop the unauthorized construction by defendants No.1 and 2 without any permission and to stop them to encroach upon the way in question.

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Appellant-defendants No.1 and 2 submitted written statement on 08.01.2007. Defendants have categorically denied the plaintiff’s suit and contended that no government and public way of 20’ wide is situated but in fact the disputed way is 10’ wide Gali left by the erstwhile owners of the plot of defendants No.1 and 2 and other neighbours for their own movement, ingress and egress.

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Defendants contended that they are not making any encroachment/construction over this Gali of 10’ wide and are raising construction only over the land of their own ownership and possession, which were purchased from the erstwhile ownerBhopal Singh through two registered sale deeds dated 27.09.2006. Defendants contended that the plaintiff alone has instituted the suit alleging the ‘ Gali’ as public way, if he claims the ‘ Gali’ as public way, his suit for permanent injunction is barred by provisions of Section 91 of Civil Procedure Code. Defendants contended that the area in question is not within the jurisdiction of U.I.T., Bharatpur, rather falls within the territory of Municipal Corporation, Bharatpur.

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Appellant-defendants No.1 and 2 in their written statement made a counter claim that they purchased their plot through two separate sale deeds dated 27.09.2006 executed by Shri Bhopal Singh and as such they are owners and possessors of their plot, as detailed out in para No.11 of the written statement. It was stated that the erstwhile owner Shri Bhopal Singh purchased this plot from the original owner Rawraja Girdhari Saran Ji through registered sale deed dated 06.04.1976 and got constructed a boundary wall thereupon. Defendants No.1 and 2 have raised

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construction only on their purchased portion of plot area and in western side of their plot i.e. towards the alleged disputed way, their pakka wall, septic tank and room, tin-shade have been constructed.

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It was contended that the plaintiff is in collusion with defendant No.3-U.I.T., Bharatpur and therefore, the defendant No.3 after inspecting the site in absence of defendants No.1 and 2, has passed order dated 04.01.2007 treating their construction as encroachment over the part of public way. It was contended that the defendant No.3-U.I.T., Bharatpur has passed order dated 04.01.2007 on the complaint of the plaintiff and thereby they want to establish a 20' wide way by removing the construction of defendants. The defendants No.1 and 2 in their written statement made a counter claim, seeking prayer for permanent injunction against defendant No.3-U.I.T., Bharatpur that defendant No.3 be restrained not to remove any construction of defendants N.1 and 2 to establish the way of 20’ wide and not to act against defendants No.1 and 2 to demolish their construction in pursuance to the order dated 04.01.2007. 7. The plaintiff submitted reply to the counter claim made by defendants No.1 and 2.

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It was stated that plaintiff has access to his plot through this 20' wide way in question. Shri Bhopal Singh, while getting conversion of his purchased area of agricultural nature, for use of residential purpose, himself had left and showed having way of 20’ wide towards western side of his plot and thereafter only the land conversion authority, passed the land conversion order dated 01.10.1984 and approved the map accordingly. Thus, in the land

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conversion order dated 01.10.1984 and map issued by the land conversion authority in favour of Shri Bhopal Singh, erstwhile owner of the plot of defendants No.1 and 2, there is mention of leaving 20’ wide road towards western side of their plot. It was stated that if Shri Bhopal Singh has sold the plot to defendants No.1 and 2 including some area this way through two sale deeds dated 27.09.2006, defendants No.1 and 2 do not acquire any ownership and right to raise construction over the area of the way in question, which had been left for having the way of 20’ wide.

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It was stated in reply of counter claim that since after institution of suit, defendants No.1 and 2 have illegally raised some unauthorized construction over the part of the way narrowing its width from 20 feet, therefore, the U.I.T. after issuing notice to defendants No.1 and 2 and after inspection of the site, passed order dated 04.01.2007 to remove such unauthorized construction of defendants No.1 and 2 from the portion of this way in question. If defendants No.1 and 2 want to challenge the order dated 04.01.2007 passed by the U.I.T, Bharatpur there is a provision to file statutory appeal their against under the Rajasthan Municipalities Act, 1959. The counter claim made by defendants No.1 and 2 challenging the order dated 04.01.2007 is barred under Section 41 (h) of the Specific Relief Act, 1963 and thus, the counter claim be dismissed.

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The U.I.T., Bharatpur-defendant No.3 has not filed any written statement to the suit filed by the plaintiff nor has filed any reply to the counter claim made by defendants No.1 and 2 in their written statement.

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The trial court framed two issues.

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Issue No.1 is as to whether a 20’ wide road is situated towards eastern side of plaintiff’s plot, described in para No.1 of the plaint and defendants are inclined to encroach thereupon?

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Issue No.2 is as to whether defendants are in legal possession over the plot described in para No.11 of their written statement/counter claim?

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Issue No.3 is related to the relief.

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Both parties adduced their oral and documentary evidence in support of their respective contentions. Plaintiff produced PW/1 to PW/3 and exhibited documents (Exhibit-1 to Exhibit-12). Defendants No.1 and 2 produced DW/1 and DW/2, produced documents (Exhibit-A1 to Exhibit-A13).

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It may be noticed here that from the evidence adduced by parties on record, it appears that Kothi Gulzar Baag was belonging to Rawraja Girdhari Saran Ji and within its periphery, huge agricultural land of Khasra No.2479 was situated. The successors of late Rawraja Girdhari Saran Ji, made plotting of the agricultural land situated in Gulzar Bag. Shri Prithvi Singh S/o Rawraja Girdhari Saran Ji sold 1/10th share of agricultural land measuring 2 bigha 13 biswa out of Khasra No.2479 to Shri Bhopal Singh through registered sale deed dated 06.04.1976 (Exhibit-A8). In the sale deed of Shri Bhopal Singh dated 06.04.1076 who was the erstwhile owner of the plot of defendants No.1 and 2, neither any measurement nor four boundaries are described. The area of land purchased by Shri Bhopal Singh has been sold by him to defendants No.1 and 2 by two separate sale deeds on 27.09.2006 (Exhibit-A1 and A2) in their individual name. Plaintiff-Jagan Singh with one Shri Rajjan Singh purchased his plot from Smt. Vimla

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Devi. The plaintiff’s plot is also part of 2 bigha and 13 biswa land of Khasra No.2479 and its erstwhile owner Smt. Vimla Devi, has got converted the nature of this plot from agricultural land to residential use, which was permitted by the concerned Land Acquisition Officer (Sub-Divisional Officer) vide order dated 11.09.1986 and map appended therewith. Shri Bhopal Sing, the erstwhile owner of the plot of defendants No.1 and 2 got conversion the nature of his plot from agricultural to residential use, which was permitted by the Land Conversion Officer (Assistant Collector), vide order dated 01.10.1984 and map appended thereto.

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Exhibit 2 and 3 are the land conversion order dated 11.09.1986 and map in relation to the plot of plaintiff, purchased from one Smt. Vimla Devi, Exhibit 4 and 5 are the land conversion order dated 01.10.1984 and map in relation to the plot of defendants No.1 and 2 purchased by them from Shri Bhopal Singh. In these documents, it is not in dispute that width of the way in question is indicated and shown as 20' wide, which is situated towards the eastern side of plaintiff’s plot and western side of defendants’ plot. The defendant (DW/1) in his evidence before the trial court though do not dispute the land conversion order dated 01.10.1984 (Exhibit-4 and 5) issued in favour of Shri Bhopal Singh, from whom they purchased his plot through two sale deeds dated 27.09.2006, but submits that the land conversion order and map are wrong. The contention from the side of appellant-defendants is that the land conversion authority has no power and jurisdiction to leave way of 20’ wide and even if

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the way of 20’ wide is shown in the land conversion order and map, the same is of no significance and are ultra vires.

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Exhibit-A1 and Exhibit-A2 are two sale deeds dated

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27.09.2006 through which defendants No.1 and 2 purchased their plot from Shri Bhopal Singh. In these sale deeds, towards western side of their plot, 10’ wide ‘ Rasta Aam’ is indicated. Exhibit-A10 is layout plan of the U.I.T., Bharatpur wherein it is mentioned that as per the proposal No.8 of the Layout Plan Committee taken in meeting dated 11.09.2013 the width of the road situated between the plot of plaintiff and defendants No.1 and 2 is narrowed from 20' to 10 feet width.

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The present suit was instituted on 28.12.2006. Although defendants No.1 and 2 have placed reliance on this layout plan Exhibit-A10 to show that the U.I.T., Bharatpur itself approved the road of 10’ wide narrowing down its width from 20’ wide. But from the side of U.I.T., Bharatpur, an explanation was given that the Layout Plan Committee in its meeting dated 11.09.2013 proposed to narrow down the width of road from 20’ to 10’ to make compliance of the stay order and to save this from the contempt of stay order passed in the civil suit.

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Here it may be noticed that the correction made in the layout plan of the U.I.T. in Exhibit-A10 dated 11.09.2013, which has been carried out during the course of proceedings of the present civil suit is otherwise hit by the principle of lis pendens and support the fact that earlier the width of the way in question was 20' wide in the layout plan of the U.I.T.

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Learned trial court decided issues No.1 and 2 together and on appreciation of the oral and documentary evidence adduced by

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both parties observed that plaintiff has claimed that width of way is 20’ wide on the basis of the land conversion orders. The land conversion order in relation to the plaintiff’s plot is dated 11.09.1986 (Exhibit-2 and 3) and land conversion order in relation to plot of defendants No.1 and 2 is dated 01.10.1984 (Exhibit-4 and 5). The trial court observed that although the land conversion authority has left 20’ wide way but the land conversion authority has no jurisdiction to establish the public way, therefore, the land conversion authority acted beyond its jurisdiction and the land conversion orders are ultra vires to this extent. As far as the erstwhile owner of plot of appellant-defendants No.1 and 2 Shri Bhopal Singh is concerned, though he indicated 20’ wide way towards western side of his plot in the map of land conversion in the map of land conversion, but the trial court observed that this has been shown with cross lines and it appears that the same was left either for parking or for some Chabutra but it can not be treated to be left for the way in question.

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The trial court placed reliance upon the layout plan of the U.I.T. (Exhibit-A10) wherein the Layout Plan Committee in its meeting dated 11.09.2013 has taken a proposal to narrowed down the width of road in question from 20 feet to 10 feet. Thus, the trial court finds that presently the width of the way/road is as 10 feet. The trial court further placed reliance on the sale deeds of defendants No.1 and 2 dated 27.09.2006 (Exhibit-A1 and A2) and observed that in their sale deeds, towards western side of their purchased plot the width of “ Rasta Aam ” has been mentioned as 10 feet. The trial court observed that from the evidence of plaintiff, it nowhere appears that any way having width of 20’ was

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situated at site and finally the trial court dismissed the suit as well as decreed the counter claim made by defendants No.1 and 2 vide its judgment and decree dated 27.02.2019.

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The plaintiff preferred first appeal assailing the judgment and decree dated 27.02.2019 passed by the trial court. In this first appeal, the U.I.T., Bharatpur submitted cross-objections also. The first appellate court re-heard the matter as a whole and reappreciated the oral and documentary evidence of both parties. While reconsidering both issues No.1 and 2, the first appellate court appreciated statements of PW/1-Jagan Singh, PW/2 and PW/3, who are local residents of Kothi Gulzar Baag. They have stated in their evidence that the road in question is 20’ wide and this road leads towards the main road of Achnera-Bharatpur. The plaintiff has access to his house through this road. PW/1 stated in his evidence that in the land conversion orders and map issued by the Sub-Divisional Officer dated 11.09.1986 (Land Conversion, Bharatpur) (Exhibits 2 and 3) in favour of his erstwhile owner Smt. Vimla devi, towards eastern side of his plot, a road having width of 20’ is indicated and shown.

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The plaintiff PW/1 also produced land conversion order and map dated 01.10.1984, (Exhibit 4 and 5) issued by the concerned Additional Collector (Land Conversion), Bharatpur on the application of Shri Bhopal Singh and thereby his land was converted from agricultural to residential purpose after leaving 20’ wide way towards western side. It was noticed by the first appellate court that towards western side of plot of Shri Bhopal Singh, 10’ wide way was already there and then 5’-5’ wide land shown with crossed lines was left by Shri Bhopal Singh in order to

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having the width of road as 20 feet. The first appellate court noticed that from the side of defendants No.1 and 2 no cross examination was made from the plaintiff PW/1 with regard to the land conversion orders passed in relation to the plot of defendants No.1 and 2 (Exhibit 4 and 5). Statements of PW/3 were also taken into consideration. From the statement of defendant-Mahavir Prasad (DW/1), it was observed that it is admitted fact that Shri Bhopal Singh purchased 1/10th share of agricultural land of 2 bigha and 13 biswa of Khasra No.2479 from Shri Prithvi Singh through registered sale deed dated 05.04.1976. DW/1 also admits that defendant No.1 purchased 30’ X 61’ and defendant No.2 purchased 45’ X 61’ through two sale deeds dated 27.09.2006(Exhibit-A1 and A2) from Shri Bhopal Singh. DW/1 has not denied the issuance of land conversion order and map in favour of Shri Bhopal Singh in relation to their plot in question but stated that they are wrong. DW/1 apart from producing the sale deeds dated Exhibit-A1 and A2 also produced other sale deeds (Exhibit-A3, A4, A5 and A6) of other neighbours to show that the width of way is indicated as 10’ in their sale deeds also. AppellantDefendants stated that plaintiff has not produced sale deed of his plot purchased from Smt. Vimla Devi as that sale deed goes against him.

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After re-appreciation of the entire evidence as a whole, the first appellate court categorically recorded a fact finding that it is undisputed fact between parties that Gulzar Baag comprising huge agricultural land was plotted for residential purpose and Shri Prithvi Singh S/o Rawraja Girdhari Saran Ji through sale deed dated 06.04.1976 (Exhibit-A8), sold 1/10th share of area out of

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agricultural land measuring 2 bigha and 13 biswa of Khasra No.2479 to Shri Bhopal Singh. In the sale deed (Exhibit-A8), the measurement and four boundaries of sold plot are not mentioned. As per calculation, the 1/10th share of 2 bigha 13 biswa its area comes to 513 Square Yards. Thus, Shri Bhopal Singh purchased plot of having total area of 513 Square yards through sale deed dated 06.04.1976. As per the land conversion order and map dated 01.10.1984 whereby and whereunder the agricultural nature of plot of Shri Bhopal Singh was converted to residential nature, width of road is indicated as 20’ wide towards western side of plot. The appellate court noticed that at the time of seeking conversion of agricultural land to residential, Shri Bhopal Singh obeviously had left some portion of his agricultural land in order to keep width of road as 20’ wide. From east to west, the size of his plot was 61’ but in appended map after conversion, only 55’ was converted. Therefore, 10’ extra land for the way, apart from earlier existed 10’ way was left by Shri Bhopal Singh to seek the conversion of his plot and therefore, in his land conversion order and map towards western side, 20’ wide road was shown and indicated. It was observed that the authority allowed land conversion for residential use, only after leaving 20' wide road in consonance with the plan of the scheme of that area. The appellate court noticed that it appears that thereafter Shri Bhopal Singh has sold entire area of 513 Sq. Yrds. through two sale deeds dated 27.09.2006 to defendants No.1 and 2. The area out of his purchased agricultural land, which was left for included in the road to make the width of road as 20’ wide, could not have been included in the sale deeds. DW/1, in his cross examination, could

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not make any clarification in this regard. The first appellate court on appreciation of such factual matrix, observed that merely on the basis of sale deeds of defendants No.1 and 2, defendants No.1 and 2 may not be assumed to have acquire any ownership rights over the land area, which had already been left out by their erstwhile owner Shri. Bhopal Singh as that area had already become part of road of 20’ wide in the land conversion order and map in relation to their own purchased plot. The fact finding based on such factual matrix which is clear from the evidence and documents of parties on record, could not be disputed by either the counsel for both parties.

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With regard to findings recorded by the trial court that the orders passed by Land Conversion Authority are ultra vires as land conversion authority has no jurisdiction to establish the road, the first appellate court considered the provisions of law as contained under Section 90 (A) of the Land Revenue Act, 1956. This provision has been inserted to the statute by the Rajasthan Act No.47 of 1958 w.e.f. 27.12.1958. For ready reference, the portion of Section 90A reads and under:-

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“Use of agricultural land for non-agricultural purpose-

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(1) No person holding any land for the purpose of agriculture, and no transferee of such land or any part thereof, shall use the same or any part thereof, by the construction of buildings thereon, shall use the same or any part thereof, by the construction of buildings thereon, shall use the same or any part thereof, by the construction of buildings thereon or otherwise, for any other purpose except with the written permission of the State Government obtained in the manner hereinafter laid down and otherwise that in accordance with the terms and conditions of such permission.

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(2) Any such persons desiring to use such land or any part thereof for any purpose other than that of agriculture shall apply for the requisite permission in the prescribed manner and to the prescribed officer or authority and every such application shall contain the prescribed particulars.

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(3) The State Government shall, after making or causing to be made due inquiry in the prescribed manner, either refuse the permission applied for or grant the same subject to the prescribed terms and conditions.

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(4) When any such land or part thereof is permitted to be used for any purpose other than that of agriculture, the person to whom such permission is granted shall be liable to pay to the State Government in respect thereof -

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“(a) an urban assessment levied at such rate and in accordance with such manner is may be laid down in rules to be made in this behalf by the State Government, or

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(b) such amount by way of premium as may be prescribed by the State Government, or (c) both.”

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xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 6. Where permission under this Section is sought with respect to a land situated in an urban area, the permission shall be granted only if the desired nonagricultural purpose is permissible in accordance with law applicable in that area and is in consonance with the master plan or any other development plan or scheme, by whatever name called, in force, if nay, in that area.

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7.XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. 8.XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 9.XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Explanation. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”

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The appellate court on appreciation of the aforesaid provision of law; more particularly, Section 90-A (6) observed that the land conversion authority is empowered to grant permission for conversion of agricultural land for non-agricultural purpose in accordance with law and in consonance with the master plan and other development plan or scheme of that area.

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Learned counsel for respondent-plaintiff has pointed out that the State Government has framed rules in the name of Rajasthan Land Revenue (Allotment, Conversion and Regularization of Agricultural Land for residential and commercial (public utility) purposes in urban areas) Rules 1981. Under rules, procedure is provided for seeking conversion of the agricultural land into residential use by an individual. As per scheme of Rules, 1981, the Land Conversion Authority can allow the conversion only in conformity with the Master Plan of that area and as per rules and regulation of the competent legal authority having jurisdiction over that area. Thus, the Land Conversion Authority is empowered and has jurisdiction to ensure to maintain the Master Plan for that purpose, The Conversion Authority may call for views of the concerned local bodies or the Town Planning Department and in case does not receive views and recommendations of the concerned local bodies or the Town Planning Department within 60 days of the date of receipt of the application, the Land Conversion Authority may take final decision in the matter within 90 days from the receipt of the application. In absence of any view and recommendation of the concerned local bodies or the Town Planning Department or if they do not attend the meeting convened by the Land Conversion Authority, there is presumption that they have no objection to the conversion as applied for.

¶98

The first appellate court observed that as per the factual matrix on record, it is clear that Shri Bhopal Singh, erstwhile owner of the plot of defendants No.1 and 2 has got converted his purchased agricultural plot into residential purposes from the

¶99

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competent land conversion authority vide land conversion order dated 01.10.1984 (Exhibit 4 and 5) and in that land conversion order and approved map, width of road towards western side of the plot of appellant-defendants is indicated and shwon as 20’f wide. The 10’ wide area was obviously left by Shri Bhopal Singh out of his purchased agricultural land in order to get conversion for residential purposes. The land conversion authority within its power and allowed conversion of land only after ensuring of having width of road as 20’ wide. The defendants No.1 and 2 who purchased the plot from Shri Bhopal Singh cannot claim any ownership rights and their possession over that part of land which has become part of 20’ wide road. It was observed that if in the sale deeds dated 27.09.2006 of defendants No.1 and 2 the 10’ width of the road area has been included by Shri Bhopal Singh in the sold plot, the same may not be treated as lawful and does not create any ownership rights to defendant No.1 over the area of 10’ wide, which was/is part of road having width of 20 feet.

¶102

As far as findings of the trial court that the land conversion authority was not authorized, the same were held to be illegal and contrary to the provisions of Section 90-A (6) of Act, 1956. The observation of the trial court that the crossed line area towards western side of appellant-defendants’ plot as shown in the conversion order and map was left by Shri Bhopal Singh either for parking or Chabutara were held as preposterous and baseless. The first appellate court also noticed that the U.I.T, Bharatpur has approved the width of road as 20’ and the same is reflected from the layout plan (Exhibit-A10) also. If the Layout Committee, during course of suit proceedings in its meeting dated

¶103

(19 of 38)

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11.09.2013 has proposed to narrowed down the width of road from 20’ to 10 feet, the same does not render any support to the contention of defendants No.1 and 2. More so, when from the side of U.I.T, Bharatpur an explanation has been given that such proposal dated 11.09.2013 during the course of suit proceedings was taken to save from the violation of stay order.

¶106

Thus, on overall re-appreciation of the material on record, the first appellate court recorded a fact finding that towards eastern side of plaintiff’s plot and western side of appellantdefendants’ plot, the width of road is 20’ wide. The first appellate court has recorded a fact finding that it stands established from the evidence of both parties that width of way/road is 20’ wide as alleged by the plaintiff and is not 10’ wide as contended by defendants No.1 and 2. In order to record such fact findings as well as to reverse findings of the trial court, the first appellate court has given due weigh to orders passed by the Land Conversion Authority. From orders and map issued by the Land Conversion Authority in relation to both plots of plaintiff and defendants, an undisputed factual position has emerged that the width of way in question is indicated and shown as 20’ wide. Further in the Layout Plan of U.I.T., Bharatpur (Exhibit-A10) the width of way in question is shown as 20’ wide. However, during the course of suit proceedings, as per the proposal of Layout Plan Committee dated 11.09.2013, the width of 20’ way has been narrowed down to 10’ wide but obviously, this subsequent change carried out during proceedings of present suit, cannot be a determinative criteria. Defendants have not been found to be come with clean hand as in their written statement, they alleged

¶107

(20 of 38)

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that the way in question is 10’ wide Gali left for their own use and neighbours. Whereas in sale deeds of defendants (Exhibit-1 and 2), the way in question is shown as “Aam Rasta” . Defendants (DW/1) could not explain the situation where, Shri Bhopal Singh the erstwhile owner of the plot of defendants, has got conversion of their plot in question from agricultural to residential, having width of 20’ wide road towards western side, which is road in question herein. No cross-objection from PW/1 was made from the side of defendants, on this aspect who submitted the orders of Land Conversion Authority in his evidence and relied upon the same.

¶110

The counter claim of defendants No.1 and 2 has also been considered on merits and their ownership rights over the way in question to the extent of 10’ width have not been approved merely on the basis of their sale deeds. Sale deeds of defendants, made by Shri Bhopal Singh have been noticed to be contrary to orders of Land Conversion Authority. Once Shri Bhopal Singh himself has left and shown width of road as 20’ wide, he had no authority to sell his plot to defendants No.1 and 2 through two sale deeds dated 27.09.2006 (Exhibit-A1 and A2) including 10’ area of the way in the sold plot and showing the width of way as only 10’ wide. Thus, defendants do not acquire any legal ownership and possession over the area of way in question to the extent of 10’ wide and to this extent, their counter claim to have legal possession over the area of plot purchased by them and described in para No.11 of written statement has rightly been dismissed by the First Appellate Court.

¶111

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¶113

Finally, the first appellate court allowed the first appeal and the cross-objections and while decreeing the plaintiff’s suit for permanent injunction, restraining defendants No.1 and 2 not to raise any construction on the 20’ wide road situated towards western side of plot of defendants No.1 and 2, first appellate court has also ordered that if any construction has been made during the course of suit, the same be removed by the UIT and simultaneously the counter claim of defendant No.1 & 2, claiming their legal possession over 10’ wide area of road, has been dismissed on merits vide judgment and decree dated 15.01.2021. 22. Having heard learned Senior counsel for both parties at length and on perusal of impugned judgments and record as a whole, this Court finds that the first appellate court has discussed the evidence of both parties deeply, elaborately and meticulously. The first appellate court considered findings given by the trial court regarding the width of the road as 20 feet or 10’ wide. But when on re-appreciation of the entire evidence and on consideration of provisions of law, the first appellate observed that as per the evidence of record more particularly, considering statements of PW/1 and 3 coupled with the land conversion orders and map in relation to the plots of both parties, it stands establish that a road having width of 20’ was left towards eastern side of the plot of plaintiff and towards western side of plot of defendants No.1 and 2, by their erstwhile owners, the trial court has committed error of fact and law in deciding the issue Nos.1 and 2.

¶114

The first appellate court has categorically observed that the fact finding of the trial court are contrary to the evidence on

¶115

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record and the trial court is wholly wrong in making an observation that the land conversion authority was not empowered and having no jurisdiction to maintain the width of road as 20’ wide while passing the conversion order for converting the agricultural plots of the parties into residential. The first appellate court has assigned valid reasons to set aside the finding of the trial court in relation to issue Nos.1 and 2. The trial court is wholly wrong in brushing aside orders passed by the Land Conversion Authority, which have already attained finality and were never challenged by either of parties and holding the orders of Land Conversion Authority as ultra vires by its own.. The trial court committed error in placing reliance upon two sale deeds of defendants No.1 and 2 and the noting dated 11.09.2013of layout plan (Exhibit-A10) of U.I.T, which is otherwise hit by the principle of lis pendens. Even the layout plan of UIT (Exhibit-A10) the width of road is 20’ wide. The proposal dated 11.09.2013 made by the Layout Plan Committee, during the pendency of suit proceedings (pending since 28.12.2006) to narrow down the width of road from 20’ to 10’ does not and cannot lend any support to contention of defendants. More so, when in the land conversion order of their plot, passed on the application of erstwhile owner of their plot Shri Bhopal Singh, the width of road was indicated and shown having width of 20’ wide. If in the sale deeds of defendants No.1 and 2, their erstwhile owner Shri Bhopal Singh has included the area of road in the sold plot, same does not confer any ownership rights to defendants No.1 and 2 over the area, which has already become part of road. The appellate court is well within its jurisdiction to reverse

¶117

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findings of the trial court, which are contrary to record. The first appellate court has rightly observed that the Land Conversion Authority has passed the land conversion orders within its powers and jurisdiction as prescribed under Section 90-A of Land Revenue Act, 1956. Findings recorded by the first appellate court in relation to issue Nos.1 and 2 are based on material on record and reasons have been assigned while reversing findings of trial court.

¶120

The first appellate court, being a court of fact and law, can reverse the findings of trial court, if same are found to be contrary to the material on record and against the proposition of law.

¶121

The Hon’ble Supreme Court, in case of Santosh Hazari Vs. Purushottam Tiwari (deceased) By Lrs. [(2001)3 SCC

¶122

179], while discussing powers of first appellate court to reverse findings of the trial court, has observed as under:-

¶123

“A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record

¶124

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findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114). The rule is __ and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different

¶127

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finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.”

¶130

The Hon’ble Supreme Court in case of Kondiba Dagadu

¶131

Kadam Vs. Savitribai Sopan Gujar and Others [(1999)3

¶132

SCC 722], while discussing the scope of the High Court under Section 100 CPC has observed that the substantial question of law has to be distinguished from substantial question of fact. Further on the issue with regard to interference with the judgment of first appellate court by the High Court while exercising its jurisdiction under Section 100 CPC, the Hon’ble Supreme Court held as under:-

¶133

“It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a

¶134

(26 of 38)

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case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.”

¶137

26 Placing reliance on the previous judgment of the Hon’ble Supreme Court in case of Sir Chunilal V. Mehta and Sons Ltd. Vs. Century Spg. & Mfg. Co. Ltd. [AIR (1962)SC 1314] held that:-

¶138

“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general. principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”

¶139

Recently in case of Gurnam Singh (Dead) by Legal Representatives and Ors. Vs. Lehan Singh (Dead) by Legal Representatives [(2019)7 SCC 641], has discussed the scope of High Court to interfere with fact findings recorded by courts

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below or recorded by the first appellate court after reversing findings of the trial court. That was a case where plaintiff filed civil suit for perpetual injunction restraining defendant from dispossessing him from the suit land. Defendants in their written statement relied upon a registered ‘Will’ and claimed to have come in possession of the suit land. The plaintiff, in his replication denied the ‘Will’. The trial court decreed the suit in favour of plaintiff and observed that the ‘Will’ is surrounded by suspicious circumstances, hence refuse to accept the registered ‘Will’. The first appellate court, on appreciation of evidence and after dealing with the suspicious circumstances, have the ‘Will’ as genuine and consequently by giving cogent reasons, did not agree with finding recorded by the trial court and dismissed the plaintiff’s suit after quashing and setting aside the judgment of the trial court. The plaintiff preferred second appeal under Section 100 CPC, the High Court, after re-appreciated the entire evidence on record, quashed the judgment and decree passed by the first appellate court and restored the judgment and decree passed by the trial court. In that situation, the Hon’ble Supreme Court held as under:-

¶143

“13.1The suspicious circumstances which were considered by the learned Trial Court are narrated/stated hereinabove. On reappreciation of evidence on record and after dealing with each alleged suspicious circumstances, which were dealt with by the learned Trial Court, the First Appellate Court by giving cogent reasons held the Will genuine and consequently did not agree with the findings recorded by the learned Trial Court. However, in Second Appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the Judgment and Decree passed by the First Appellate Court. While interfering with the

¶144

(28 of 38)

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judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:

¶147

(i) Contrary to the mandatory provisions of the applicable law;

¶148

¶149

(ii) Contrary to the law as pronounced by the Apex Court; OR

¶150

(iii) Based on inadmissible evidence or no evidence.

¶151

It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal.

¶152

Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in re-appreciating the evidence on record in the second appeal under Section 100 of the CPC. The High Court has materially erred in interfering with the findings recorded by the First Appellate Court, which were on

¶153

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re appreciation of evidence, which was permissible by the First Appellate Court in exercise of powers under Section 96 of the CPC. Cogent reasons, on appreciation of the evidence, were given by the First Appellate Court. First Appellate Court dealt with, in detail, the so called suspicious circumstance which weighed with the learned Trial Court and thereafter it came to the conclusion that the Will, which as such was a registered Will, was genuine and do not suffer from any suspicious circumstances. The findings recorded by the First Appellate Court are reproduced hereinabove. Therefore, while passing the impugned judgment and order, the High Court has exceeded in its jurisdiction while deciding the second appeal under Section 100 CPC.

¶156

Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law. “

¶157

Learned counsel for appellants has vehemently raised and argued that plaintiff has not sought any declaration for having width of the road as 20’ wide and has instituted simplicitor civil suit for permanent injunction, therefore his suit for permanent injunction without declaration cannot be held to be maintainable.

¶158

(30 of 38)

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¶160

In support of his arguments, appellants has placed reliance on the judgments in Ratnagiri Nagar Praishad s. Gangaram Narayan Ambekar and Ors. [(2020)7 SCC 275] , and Municipal Board vs. Bhura and Ors. [(2006)1 WLC Raj. 598].

¶161

Learned counsel for respondent plaintiff has argued in counter to the aforesaid objection from the side to appellants that firstly, defendants No.1 and 2 in their written statement have not taken any such objection, hence they cannot be allowed to raise objection first time at the stage of second appeal. Secondly, the suit for permanent injunction filed by the plaintiff is based on orders passed by the Government Authority (Land Conversion Officer). In orders issued by the Land Conversion Officer with regard to the plot of plaintiff and defendants No.1 and 2, width of the way/road in question has been indicated as 20’ wide. These orders have attained finality and have not been challenged by any of the party, therefore it was not required for plaintiff to seek any declaration and the first appellate court has not committed any jurisdictional error in decreeing the plaintiff’s suit for permanent injunction, placing reliance upon orders passed by the Land Conversion Authority. Respondent has placed reliance upon para No.54 of the judgment in case of Anita International Vs. Tungabadra Suar Works Mazdoor Sangh [(2016)9 SCC 44]. 30. In order to deal with the objection raised by learned counsel for appellants for filing the suit for injunction without declaration, whether the declaration in the present case is necessary for the plaintiff, the factual aspect has come on record that in land conversion orders and map issued by the Land Conversion Authority in relation to the plot of plaintiff and plot of defendants

¶162

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No.1 and 2, there is a clear mention of having road of 20’ wide towards eastern side of plaintiff’s plot and towards western side of defendants’ plot. The plaintiff, in his suit has given reference about orders passed by Land Conversion Authority and has based his claim of having a way of 20’ wide on the basis of such orders. Defendants, in the written statement, have not disputed the issuance of land conversion orders by the Authority nor has taken any defense that plaintiff’ suit for permanent injunction, based on such conversion orders is not maintainable without seeking declaration about the width of way as 20 feet. The Hon’ble Supreme Court while deciding case of Ratnagiri Nagar Parishad Vs. Gangaram Narayan Ambekar and Others [(2020)7 SCC 275] referred by counsel for appellants and while deciding the case of Anita International (supra) referred by counsel for respondent-plaintiff has relied upon the previous judgments of Hon’ble Supreme Court delivered in case of Krishnadevi Malchand Kamathia Vs. Bombay Enviornmental Action Group [(2011)3 SCC 363] wherein this Court observed as under:-

¶165

“Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.”

¶166

(32 of 38)

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31. The Hon’ble, Supreme Court in case of Jehal Tanti & Ors.

¶169

Vs. Nageswar Singh (Dead) through LRs. [(2013)14 SCC 689], held that till an order passed by a competent court is set aside, the same would have the force of law and any act/action carried out in violation thereof would be liable to be set aside. The Hon’ble Supreme Court has endorsed such view in case of Anita International ( Supra ).

¶170

In case of Ratnagiri Nagar Praishad (supra) also the Hon’ble Supreme Court has not deviated from the aforesaid principle of law rather the same dictum has been endorsed, though placing reliance upon a previous celebrated judgment in case of Smith Vs. East Elloe Rural District Council [(1956)AC

¶171

736], following observations were made:-

¶172

“An Order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset it will remain as effective for its ostensible purpose as the most impeccable of Orders.

¶173

Facts of the case of Ratnagiri Nagar Parishad (supra) were altogether different from the case at hand. In that case plaintiff instituted a civil suit for permanent injunction against defendants and State Government in representative capacity, stating that Ratnagiri Nagar Parishd intends to set up a solid waste disposal project in the suit property, which would entail in serious health problem for villages as well as there is immense possibility of causing severe water pollution and further defendant had not taken any permission from the competent authority, therefore, a decree for perpetual injunction was prayed for not to set up the

¶174

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project. However, defendant and State Government asserted in the written statement that the suit land had been allotted to defendant and after due deliberations and consultation with expert committee, decision to allot for set up of the project was taken. Despite such disclosure of orders by the competent authority to allot the suit land and allow to set up the project on the suit land by defendant, the plaintiff neither assailed orders of the competent authority or prayed for any declaratory relief in that regard. Therefore, the Hon’ble Court, on the face value of orders of allotment of suit land to the defendant and orders giving permission to defendant to set up the solid water disposal project on the suit land, observed and held that the plaintiff has not sought for declaration about invalidity of such orders nor have assailed such orders and his simplicitor suit for permanent injunction is not maintainable.

¶177

As far as facts of case at hand are concerned, the principle of law set forth by the Hon’ble Supreme Court in case of Ratnagiri Nagar Parishad, rather supports the plaintiff and do not render any support to appellant-defendants No.1 and 2. In the present case, plaintiff’s claim for having a way of 20’ width is based on orders passed by the competent authority of land conversion. These orders have not been assailed by appellant-defendants No.1 and 2 and once the competent authority has confirmed, while allowing the conversion of the agricultural plot of defendants to residential has indicated and approved the existence of road having width of 20’ wide towards its western side and similar approval has been given while converting the plot of plaintiff also, the stand of defendants claiming the width of way as 10’ is contrary to

¶178

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conversion orders passed by the competent authority. In such factual scenario, this Court finds that the first appellate court has not committed any illegally in decreeing the plaintiff’s suit for permanent injunction, without any relief of declaration. The argument raised by learned counsel for appellants, is not valid in the fact of present case, hence turned down.

¶181

Learned counsel for appellants has also raised an objection that plaintiff has instituted the present suit in relation to a government and public road but the procedure as provided under Section 91 of CPC has not been followed, therefore, his civil suit is not liable to be succeed and the decree deserves to be quashed.

¶182

As far as this argument is concerned, the road in question has been claimed by the plaintiff to be a government and public road. Even in the registered sale deeds of defendants No.1 and 2, this road in question has been indicated as ‘Aam Rasta’ though its width has been indicated as 10 feet. But the plaintiff’s claim is that the width of this public road as 20’ feet.

¶183

Be that as it may, the civil suit by private person to claim of right to access through the public road and suit for removal of encroachment from the public road, is maintainable. In this support, Judgment of the Hon’ble Supreme Court in case of

¶184

Hariram Vs. Jyoti Prasad and Another [(2011)2 SCC 682]

¶185

may be referred as under:-

¶186

“Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing

¶187

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the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as the doer is responsible for causing such injury.

¶190

The next plea which was raised and argued vehemently by the learned senior counsel appearing for the appellant was that the suit was bad for non-compliance of the provisions of Order I Rule 8 of the CPC. The said submission is also found to be without any merit as apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected. Since affected person himself has filed a suit, therefore, the suit cannot be dismissed on the ground of alleged non-compliance of the provisions of Order I Rule 8 of the CPC.

¶191

In this connection, we may appropriately refer to a judgment of the Supreme in Kalyan Singh Vs. Smt. Chhoti and Ors. reported in [(1990)1 SCC 266] . In paragraph 13 of the said judgment, this Court has held that suit could be instituted by representative of a particular community but that by itself was not sufficient to constitute the suit as representative suit inasmuch as for a representative suit, the permission of Court under Order I Rule 8 of the CPC is mandatory.

¶192

In paragraph 14 of the said judgment, it was also held that any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachment therefrom and that in such a suit he need not comply with the requirements of Order I Rule 8 CPC. It was further held in the said case that the suit

¶193

(36 of 38)

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against alleged trespass even if it was not a representative suit on behalf of the community could be a suit of this category.

¶196

In that view of the matter and in the light of the aforesaid legal position laid down by this Court, we hold that the suit filed by the plaintiff/respondent No. 1 was maintainable.

¶197

Thus, the argument raised by learned counsel for appellants is turned down.

¶198

It also reveals from the record that after institution of the present civil suit on 28.12.2006, the U.I.T., Bharatpur passed an order dated 04.01.2007 against defendants No.1 and 2 with observation that defendants No.1 and 2 have encroached upon the road and despite notice issued under Section 92 of Rajasthan Municipalities Act, 1959 any reply/explanation has not filed, therefore, order was passed to remove the encroachment made by defendants No.1 and 2 from the way/road in question.

¶199

Defendants No.1 and 2, apart from submitting their counter claim against the U.I.T., Bharatpur also challenged its order dated 04.01.2007 before the District Collector, Bharatpur. The District Collector, Bharatpur dismissed the appeal vide order dated 06.08.2009, against which defendants No.1 and 2 preferred S.B. Civil Writ Petition No.11421/2009 before the High Court. The High Court, vide its order dated 11.12.2013 quashed the order of District Collector, Bharatpur dated 06.08.2009, and allowed defendants No.1 and 2 to assail the order of U.I.T., Bharatpur dated 04.01.2007 before the Divisional Commissioner. According to appellant-defendants No.1 and 2, their appeal before the Divisional Commissioner is pending (Exhibit-A12 and A13).

¶200

(37 of 38)

¶201

[CSA-24/2021]

¶202

The trial court decreed the counter claim of defendants No.1 and 2 vide judgment and decree dated 27.02.2019. In the first appeal against the judgment and decree dated 27.02.2019, the U.I.T., Bharatpur submitted cross-objection. Defendants No.1 and 2 raised an objection about maintainability of cross-objection but the same was rejected vide order dated 08.01.2020.

¶203

It has been informed that against order dated 08.01.2020, one separate writ petition being S.B. Civil Writ Petition No.2283/2020 is said to be pending.

¶204

It may be observed that when the civil court has examined the counter claim of defendants No.1 and 2 on merits and the first appellate court in final judgment dated 15.01.2021, has dismissed the counter claim of defendants No.1 and 2 on merits there is no effect and purpose of pendency of such writ petition and appeal of defendants No.1 and 2 and are of no benefit to the appellantdefendants.

¶205

Learned counsel for appellants has raised an arguments regarding not maintainability of cross objections made by U.I.T., Bharatpur in the first appeal, filed by the plaintiff in the backdrop of facts that the U.I.T. neither filed any written statement nor filed any reply to the counter claim, therefore, its cross-objection against counter claim decreed in favour of defendant No.1 and 2 could not have been entertained. Firstly, such objection has already been dealt with by the first appellate court and the same was rejected vide order dated 08.01.2020 thereafter, the first appellate court has considered the counter claim of defendants No.1 and 2 on merits and the same has been dismissed on merits. Therefore, this argument does not render any help to learned

¶206

(38 of 38)

¶207

[CSA-24/2021]

¶208

counsel for appellants as far as the decree passed in the plaintiff’s suit for permanent injunction is concerned.

¶209

Having discussed the factual and legal aspect of the matter, this Court finds that no substantial questions of law is involved in the present appeal. The dispute between parties is in relation to the width of a public road either being 10 feet or 20 feet. The first appellate court, on appreciation of evidence as a whole has recorded a fact finding that the width of road is 20 feet.

¶210

This Court finds that the first appellate court has acted well within its jurisdiction and the reversal of findings are based on due appreciation of evidence and reasons have been assigned. Such findings do not suffer from any perversity. Learned counsel for appellants could not point out any perversity in such fact finding of the first appellate court. The other arguments raised from the side of appellants have already been dealt with and turned down as indicated hereinabove. In such circumstances, no substantial question of law arises in this second appeal. Substantial question of law is sine qua non for exercising the jurisdiction under Section 100 CPC to entertain the second appeal. Hence, the second appeal is found to be devoid of merits and the same is dismissed.

¶211

There is no order as to cost.

¶212

All other pending application(s), if any, also stand(s) disposed of.

¶213

Record be sent back forthwith.

¶214

(SUDESH BANSAL),J

¶215

Mahavir Prasad S/O Fauran Singh v. Jagan Singh S/O Sunder Singh (Deceased)

Case brief

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Mahavir Prasad S/O Fauran Singh v. Jagan Singh S/O Sunder Singh (Deceased)

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What the court decided

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