Rajasthan High Court - Jodhpur
Omprakash vs Municipal Board, Phalodi on 31 October, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 98 / 2017
Meghraj S/o Radhakishan, B/c Soni, R/o - Dholabala Behind Senior
Higher Secondary School, Phalodi, District - Jodhpur.
----Appellant
Versus
Municipal Board Phalodi Through Its Executive Officer Municipal
Board Phalodi, Dist- Jodhpur.
----Respondent
Connected With
S.B. Civil Second Appeal No. 85 / 2017
Jitendra S/o Shri Harnarayan Vyas, Resident of Madhorai Ji Ki Dhal
Phalodi, Dist. Jodhpur.
----Appellant
Versus
Nagar Palika Mandal, Phalodi Through Its Executive Officer.
----Respondent
S.B. Civil Second Appeal No. 94 / 2017
Ramchadra Vyas S/o Shri Balkishan Vyas by Caste Pushkarna
Brahman, Aged About 67 Years, Resident of Near Keshav Kutiya
Seniour High Secondary Quarter Phalodi Dist. Jodhpur.
----Appellant
Versus
Municipal Board Phalodi Through Its Executive Officer Municipal
Board Phalodi Dist. Jodhpur.
----Respondent
S.B. Civil Second Appeal No. 96 / 2017
Devkishan S/o Dalichand, B/c Soni, R/o Jawahar Pyau, Phalodi,
District- Jodhpur.
----Appellant
Versus
Municipal Board Phalodi Through Its Executive Officer Municipal
Board Phalodi, Dist- Jodhpur.
----Respondent
S.B. Civil Second Appeal No. 104 / 2017
Bhanwar Lal Addopted S/o Shri Dev Kishan Soni, R/o Pathar Road,
(2 of 21)
[ CSA-98/2017]
Phalodi, District Jodhpur.
----Appellant
Versus
Municipal Board Phalodi Through Its Executive Officer Municipal
Board Phalodi, Dist- Jodhpur.
----Respondent
S.B. Civil Second Appeal No. 115 / 2017
Omprakash S/o Sh. Radhakishan, R/o Lakshmipura, Phalodi,
District Jodhpur
----Appellant
Versus
Municipal Board, Phalodi, Through Executive Officer
----Respondent
S.B. Civil Second Appeal No. 122 / 2017
Iliyas Khan S/o Akhe Mohd, by caste Musalman, R/o Barkat
Colony, Phalodi.
----Appellant
Versus
Municipal Board, Phalodi, Through Executive Officer
----Respondent
S.B. Civil Second Appeal No. 124 / 2017
Smt. Jubaida W/o Nijamdeen, by caste Musalman, R/o Village
Lordiya, Phalodi.
----Appellant
Versus
Municipal Board, Phalodi, Through Executive Officer
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Muktesh Maheshwari with
Mr. Vandana Bhansali
(3 of 21)
[ CSA-98/2017]
Mr. L.K. Purohit
Mr. C.S. Kotwani
Mr. C.P. Coni
For Respondent(s) : Mr. Narender Thanvi
_____________________________________________________
HON'BLE MR. JUSTICE RAMCHANDRA SINGH JHALA
Judgment 31/10/2017 These second appeals have been preferred by the appellants against the judgments and decrees dated 1.12.2016 passed by learned Additional District Judge, Phalodi whereby the learned appellate court has confirmed the judgments and decrees dated 13.9.2013 passed by learned Civil Judge (Senior Division), Phalodi whereby the learned trial court had dismissed the suits of the appellant-plaintiffs for injunction.
All these appeals arise out of common order based on similar questions of fact and law, all these appeals are heard together and are being disposed of by this common order.
Briefly stated facts of these cases are that the appellants filed suits for injunction against the respondent- defendant whereby it has been stated that the plaintiffs purchased plots as mentioned in para No.1 of the plaints through registered sale deed and they got title and possession of the same on which the appellant-plaintiffs raised construction on their respective plots. It was also stated in the plaints that in record of the respondent after depositing the amount receipt was issued. On 7.9.1992, the respondent Municipal Board issued construction (4 of 21) [ CSA-98/2017] permission to Nathmal Jagri ex-owner of the plots in question. The defendant-respondent in the subsequent stage has threatened the appellant-plaintiffs for dispossession. It has also been stated that the appellant-plaintiffs, therefore, are entitled to get the decree of permanent injunction against the defendant and lastly it has been prayed not to interfere in the use and occupation of the disputed plots and further sought permanent injunction for not dispossessing them from the disputed plots.
The respondent-defendant filed their written statement of the plaint and denied all the averments made therein and it was alleged that the disputed land is valuable land of the respondent upon which the appellant-plaintiffs are in possession of the same as mere encroachers. It has been alleged that the appellant- plaintiffs were given notice of dispossession. The disputed pattas are forged documents and further the sale deeds prepared on the basis of the forged pattas are void. The registered sale deeds are merely an afterthought. It has been alleged that the Municipality has the right to dispossess the encroachers. It has been further alleged that no NOC was issued in favour of the plaintiffs by the defendant, further the certificates of the plaintiffs were rejected due to the forged documents about which the plaintiffs were very well-known. Therefore, the plaintiffs have no right over the disputed land and, therefore, they are not entitled to get any relief as they are merely encroachers. It has been further alleged that no threat was given by the defendant to the plaintiff. It was also prayed by the defendant to dismissed the suit.
(5 of 21) [ CSA-98/2017] On the basis of pleadings of both the parties, the learned trial court framed the following issues:-
^^1- vk;k oknh dk dCtklqnk ,oa LoRolqnk [kjhnlqnk Hkw[k.M okn&i= ds iSjk la[;k 01 ds vuq:i gS\ ------ oknh 2- vk;k oknh ds i{k esa ,oa blh iV~Vs ds vU; HkwHkkx ls lEcfU/kr vU;
[kjhnnkjksa ds i{k esa izfroknh }kjk vukifr izek.k i= tkjh fd;k gqvk gS \
------ oknh 3- vk;k Hkw[k.M ds iwoZ Lokeh uFkey tkxjh ds i{k esa fuekZ.k Lohd`fr tkjh dh gqbZ gS \ ------ oknh 4- vk;k oknh izfroknh ds fo:) LFkkbZ fu"ks/kkKk izkIr djus dk vf/kdkjh gS \
-----oknh 5- vk;k oknh dk iV~Vk dwVjfpr ,oa QthZ nLrkostksa ds vk/kkj ij gSA tks iV~Vk lsfVax fd;k tk jgk gSA fooknxzLr Hkw[k.M ij oknh vfrØeh gS \ -
--------- izfroknh 6- vk;k jkT; ljdkj dks i{kdkj cuk;s fcuk okn iks"k.kh; ugha gS \
--------- izfroknh 7- vk;k dwVjfpr foØ; foys[k :- 295 ij crk;k x;k gS tks iathd`r ugha gksus ls okn iks"k.kh; ugha gs \ ------------ izfroknh 8- vk;k okn ?kks"k.kk ds vuqrks"k ds vHkko esa iks"k.kh; ugha gSA - -------- izfroknh 9- vk;k okn fof/kd izfØ;k viuk;s fcuk uxjikfydk Qyksnh ds fo:) is'k fd;k x;k gS tks iks"k.kh; ugha gS \ --------- izfroknh 10- vuqrks"k \** The learned trial court decided the issues No.1, 2 and 3 against the plaintiffs and issues No.5, 6 and 8 in favour of defendant and issues No.7 and 9 were decided against the defendant.
The plaintiffs got examined as many as 4 witnesses and produced as many as 25 documents as evidence. On the contrary, the defendants produced 3 witnesses and produced as many as 12 documents as evidence.
(6 of 21) [ CSA-98/2017] The learned trial court after hearing both the parties vide judgments and decrees dated 13.9.2013 dismissed the suits of the plaintiffs.
Being aggrieved with the judgments and decrees dated 13.9.2013, the appellant-plaintiffs preferred appeals before the learned Additional District Judge, Phalodi, District Jodhpur which were also dismissed the appeals vide judgment and decree dated 01.12.2016 and the appellate court upheld the judgments and decrees passed by the trial court.
The appellant-plaintiffs being aggrieved by the judgments and decrees passed by both the courts below have preferred these second appeals before this Court.
Heard learned counsel for the parties and perused the material available on record.
The learned counsel for the appellants have contended that the learned appellate court while deciding the appeals did not consider the ample material available on record in right perspective and committed grave error of law while upholding the judgments and decrees passed by the learned trial court. It is further contended that the judgments and decrees passed by the trial court as well as the judgments and decrees passed by the learned first appellate court are contrary to law and have been passed overlooking the material available on record. The learned courts below have failed to examine the material aspect of the case and did not consider the ample material presented on record.
It is further contended that the learned courts below (7 of 21) [ CSA-98/2017] have committed gross error in deciding issue No.1 against the appellants and in favour of respondent. The learned courts below have failed to consider that the copy of the pattas and sale deeds produced by the appellants clearly prove their continuous possession and title over the disputed land. Moreover, before the appellants, the ownership of the disputed land was with its previous owner Nathmal. The documents filed by the appellants clearly go to show his long possession and ownership over the disputed land. However, the learned courts below have not considered such an aspect of the matter.
It is further contended that the respondent has never initiated any proceeding for cancelling the pattas of the disputed land exhibited by the appellants before the learned trial court. Therefore, there was sufficient ground for the learned courts below to presume that pattas exhibited by the appellants have been issued by the officer authorized while performing the official duty by the person authorised to do so in pursuance of Section 114 (e) of the Indian Evidence Act. It is also contended that on one hand the respondent has allegedly taken a stand for cancellation of alleged construction permission and on the other hand no such steps have been taken for the patta. It is also contended that the disputed pattas are more than 30 years old and provisions of Section 90 of the Indian Evidence Act state that it may be presumed by the Court that the signature and every other part of such documents is in that person's handwriting and is executed and attested by whom it was purports to be executed (8 of 21) [ CSA-98/2017] and attested.
It is also contended that the appellants got exhibited the Commissioner report stating that the appellants' long and peaceful possession over the disputed land which further shows the possession of the appellants over the disputed land. However, the learned courts below completely overlooked the report of commissioner without assigning proper reason. Therefore, the learned courts below have clearly committed gross error of law while not considering the documentary evidence i.e. sale deed, commissioner report, Municipality NOC certificate and other documents produced by the appellants. It is also contended that learned courts below have committed gross error in deciding issue No.2 against the appellant as the respondent Municipality issued NOC certificate to other khatedars of the other portion of the land relating to the disputed pattas.
Learned counsel for the appellants have further stated that the learned courts below have committed gross error in deciding issue No.3 against the appellants as the appellants have got exhibited the construction approval certificate issued in favour of the previous owner of the disputed property and by the same it is very much clear that the Municipality issued the construction approval certificate in favour of previous owner Nathmal Jagri. Learned courts below have committed gross error in deciding issue No.5 in favour of respondent as the learned courts below have wrongfully decided that the pattas of the appellants are forged and on the basis of forged documents. Learned courts below (9 of 21) [ CSA-98/2017] have decided the said issue as if the same was burdened upon the appellant-plaintiffs, whereas the same was burden of the respondent-defendant. The learned courts below have wrongly considered the appellants to be encroachers over the disputed land. The learned courts below failed to appreciate that the appellants came into possession over the disputed land through legal means and the same has been produced and proved by the appellant on record through their evidence. Moreover, the report of the commissioner exhibited by the appellants clearly shows that the appellants have been in the long and peaceful possession over the disputed land.
Learned counsel for the appellants have contended that the courts below have committed gross error in deciding issue No.6 in favour of the respondent and against the appellants. It is submitted that the learned courts below have failed to appreciate that the present suits have been filed by the appellants seeking injunction against the respondent Municipality for not to interfere with the possession of the disputed property and further not to dispossess them from the same.
It is contended that the learned courts below have committed gross error in deciding issue No.7 while reversing the finding of the learned trial court regarding the same and deciding the same in favour of the respondent and against the appellant. It is contended that the courts below have also committed gross error in deciding the issue No.8 in favour of the respondent and against the appellants. It is submitted that the learned courts (10 of 21) [ CSA-98/2017] below have wrongfully decided that the present suits are not maintainable in absence of the relief of declaration. The learned courts below have completely overlooked the ample material produced by the appellant. It is also contended by learned counsel for the appellants that the courts below have committed gross error in deciding issues No.4 and 10 regarding the relief and dismissed the suit for injunction of the appellant and held the appellants to be not entitled for getting the relief of permanent injunction against the respondent.
Learned counsel for the appellants Mr. C.P. Soni has relied upon the following judgments in support of his arguments:-
(i) AIR 2006 (Raj.) 215 - Abdul Latif & Ors. Vs. Nagar Vikas Pranyas, Udaipur.
(ii) AIR 2006 (Raj.) 220 - Ravindra Tyagi Vs. State of Rajasthan & Ors.
(iii) AIR 1977 SC 183 - Narayan Govind Gavate etc. Vs. State of Maharashtra & Ors.
(iv) 2013 4 RLW (Raj) 3341 - Municipal Council, Pali Vs. State of Rajasthan & Ors.
(v) AIR 1974 SC 1178 - Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and others.
(vi) AIR 1976 SC 2229 - Damadilal & Ors. Vs. Parashram & Ors.
(vii) AIR 1993 Allahabad 138 - Ajab Singh Vs. Shital Puri (deceased by LRs.)
(viii) AIR 2001 SC 965 - Santosh Hazari Vs. Tiwari (Dead) by LRs.
(11 of 21) [ CSA-98/2017]
(ix) 2006 AIR SCW 2394 - Anil rishi Vs. Gurbaksh Singh In view of aforesaid contentions and judgments cited above, learned counsel for the appellants have prayed that these second appeals may kindly be admitted.
On the contrary, learned counsel for the respondent has vehemently opposed the arguments and contended that the impugned judgments and decrees have rightly been passed and no error has been committed by learned courts below. It is contended that all the issues have rightly been decided and since there is concurrent findings of both the courts below, no interference is required to be made in these appeals and these second appeals, therefore, may kindly be dismissed.
Learned counsel for the respondent in support of his arguments has relied upon the following judgments:-
(i) RLW 1996 (2) Raj 559 - Bhurji &Anr. Vs. UIT, Alwar & Anr.
(ii) AIR 2005 (Raj.) 1 - Kanti Chand Sharma Vs. Municipal Corporation & Anr.
(iii) AIR 1997 Raj. 85 - Smt. Jamna Bai Vs. Tulsi Ram
(iv) 2012(3) DNJ (Raj.)1705 - Indu (Smt.) Vs. Narsingh Das & Ors.
(v) AIR 2006 Rajasthan 187 Shankar Lal Vs. Civil Judge (Jr. Division), Shahpura.
(vi) (2010) 4 SCC 491 - Life Insurance Corporation of India & Anr. Vs. Ram Pal singh Bisen.
(vii) AIR 2012 SC 206 Suraj Lamp & Industries Pvt. Ltd. Vs. State (12 of 21) [ CSA-98/2017] of Haryana & Anr.
(viii) 2011(3) DNJ (Raj.) 1483 - Motu Lal Vs. UIT, Bikaner & Ors.
(ix) AIR 1968 SC 1413 (V 55 C 276) Gopal Krishanji Ketkar Vs. Mohamed Haji Latif & Others.
(x) 2001(3) CCC 82 (P&H) - Rajinder Kumar Saini Vs. Municipal Committee, Hissar
(xi) RLW 1997(3) Raj. 2027 - Ramjilal & Ors. Vs. Geeta Devi & Ors.
(xii) 2014(2) DNJ (Raj.) 661 - Bhure Khan (since deceased) Thro' LR's Vs. Yasin Khan (now deceased) & Ors.
(xiii) RLW 1971 page 246 - Kalu Ram Vs. Ghisalal
(xiv) 2011 (1) DNJ (Raj.) 414 - Trilok Chand Regar Vs. Nagar Palika, Niwai & Ors.
(xv) 2010 DNJ (SC) 167 - H.P. Vedavyasachar Vs. Shivashankara & Anr.
(xvi) 1996(2) Apex Court Journal 474 (SC) - Navaneethammal Vs. Arjuna Chetty.
(xvii) AIR 1976 SC 2547 - The State of U.P. Vs. Ram Chandra (xviii) 1994(1) Civil Court Cases 265 (SC) - O.T.M.O.M. Meyyappa Chettiar Vs. O.T.M.S.M. Kasi Vishwanathan Chettiar & Anr. (xix) 1995(1) Civil court Cases 528 (P&H) - Ram Lal Vs. Surinder Kaur.
I have heard learned counsel for the parties at length and perused the record of the case including the judgments of (13 of 21) [ CSA-98/2017] courts below and also gone through the judgments cited by the learned counsel for the parties.
During the pendency of the appeals, the appellant- plaintiffs in Second Appeals Nos.115/2017, 96/2017, 98/2017, 85/2017 104/2017 have filed applications under Order 41 Rule 27 C.P.C. wherein they have submitted that they want to produce on record the original pattas.
Upon perusal of record, it is clear that copies of pattas had been produced in the trial court during the trial and copies of the pattas have been marked as exhibits in all the cases by accepting the applications under Section 65 of Evidence Act and learned trial court as well as learned first appellate court had also given finding on the said pattas. In these circumstances, copies of pattas have been produced by the plaintiff-appellants in trial court and finding was also given on pattas by the courts below and now again the appellant-plaintiffs have filed said applications to take the pattas on record.
It is settled proposition of law that during the pendency of appeals, additional evidence is not permissible unless it is required by the court to pronounce proper judgment. It has been explained by Apex Court in the case of Mahendrakumar Parshottambhai Desai (Dead) by L.Rs. Reported in 2006 (9) SCC 772 that:-
"Though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order 41 Rule 27 CPC, the (14 of 21) [ CSA-98/2017] requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way."
In view of above discussion, the applications filed under Order 41 Rule 27 I.P.C. deserve to be dismissed because the documents are not needed for pronouncement of judgment. Hence, the said applications filed by the appellants in the aforesaid appeals are hereby dismissed.
As regards the merits of the case, the contention of appellant-plaintiffs is that they are in possession of the suit land on the basis of sale deeds and pattas, but in the trial court the appellant-plaintiffs utterly failed to prove pattas according to the provisions of law. No evidence has been produced on behalf of the appellant-plaintiffs that who had issued the pattas and who signed the pattas and who knows the signatures of concerned authority, who had signed the pattas. Even in the trial court the appellant-plaintiffs stated that the original pattas have been lost, so with permission of the Court, copies of the pattas were produced by the plaintiff-appellants in the trial court and exhibited the said pattas and finding was also given by the trial court on the (15 of 21) [ CSA-98/2017] pattas.
It is settled proposition of law that mere exhibition of a document does not prove its contents.
The Hon'ble Apex Court in the case of Life Insurance Corporation of India & Anr. Vs. Ram Pal Singh Bisen reported in (2010) 4 SCC 491 has held that:-
"B. Evidence Act, 1872- Ss.61 to 65, 67 and 73 - Proof of contents of a document - Held, mere filing or exhibition of a document in court does not amount to proof of its contents - Admission of a document in court may amount to admission of its contents but not their truth - Further held, document not having been produced and marked as required under the Evidence Act, cannot be relied upon by court."
Upon perusal of the record, it is also proved that the property was sold in Rs.295/- and according to the sale deed it is unregistered. According to the provisions of Registration Act, when the valuation of the property is Rs.100/- or more than Rs.100/-, then registration is compulsory. The Hon'ble Apex Court in the case of Indu (Smt.) Vs. Narsingh Das & Ors. reported in 2012(3) DNJ (Raj.)1705 has held that:-
"Civil Procedure Code, 1908-O.13, R.3 -
Registration Act, 1908-Sec. 17, 49- Indian Stamp Act, 1899-Secs.33, 35- Agreement to sell-
Document written on plain paper - Admissibility - Document held to be inadmissible in evidence by the trial court - In view of the order of the High (16 of 21) [ CSA-98/2017] Court plaintiff moved an application and prayed to admit the document in evidence for collateral purpose for establishing possession - Document admitted in evidence for collateral purpose - Document in question is not properly stamped nor registered - Held, Document is not admissible in evidence even for collateral purpose and order is liable to be set aside."
The contention of the appellant-plaintiffs is also that they purchased the said land from Nathmal Jagri, but the appellant-plaintiffs failed to produce any evidence which shows that how Nathmal Jagri came in possession of the suit land and how he got title of the disputed land. Even Nathmal Jagri has not been produced as witness on behalf of the appellants in the trial court whereas defendants are claiming that said land is registered in the name of Nagar Palika and Nagar Palika is true owner of the said land and said land is reserved for allotment to SC/ST community by the respondent. Rejoinders have been filed by the appellants-plaintiffs in some of the matters in the trial court, but nothing has been clearly controverted in the rejoinder.
So far as the report of Commissioner is concerned, in my considered view, the Commissioner's report can only be used to prove the physical position of the suit land at the time of inspection. No inference can be drawn about long and legal possession on the basis of Commissioner's report.
The plaintiff-appellants submitted that permission for construction was granted by Nagar Palika in 1992 and claimed (17 of 21) [ CSA-98/2017] that Nagar Palika once granted permission of construction over the suit land, then Nagar Palika cannot deny title of the plaintiffs, but upon perusal of the evidence, it is clear that according to the Nagar Palika register and file No.112/90-91, no said construction permission was given by the Nagar Palika to Nathmal Jagri. The record itself proves that the permission was given to Manak Lal S/o Ranu Lal, therefore, the appellant-plaintiffs utterly failed to prove in trial court that Nagar Palika had given permission for construction over the suit land to the Ex-owner Nathmal Jagri. It is also surprising fact that when Nathmal Jagri sold the respective land on 18.7.1991 to Shri Om Prakash and then on dated 12.10.1992, he sold the suit land to Shri Jitendra and Ramchandra, then why he obtained the permission for construction in the year 1992 over the suit land and how Nagar Palika gave such permission for construction on the suit land.
The appellant-plaintiffs also produced NOC granted by the Nagar Palika in the year 1995-96 and claimed that once Nagar Palika had given NOC to the appellant-plaintiffs about the suit land, then now Nagar Palika cannot deny title of the appellant-plaintiffs, but upon perusal of the evidence it is clear that the said NOC was not given by the competent authority. It is also clear that the said NOC was given by LDC on behalf of Chairman of Nagar Palika, who was not competent to give such NOC.
Apart from this, when the Nagar Palika came to know this fact, the Nagar Palika by way of a resolution dated (18 of 21) [ CSA-98/2017] 20.7.1996 Ex.A/5 cancelled the said NOC. It is also proved by evidence that the appellant-plaintiffs Om Prakash and Jitendra were also trustees in Nagar Palika at the time of issuing NOC and they have obtained said NOC from LDC by way of their influence and when Nagar Palika came to know the said fact, the Board after taking resolution cancelled the same and also registered FIR against this act. After cancellation of NOC, the appellant- plaintiffs never challenged the resolution of Nagar Palika before any competent authority so illegal NOC given by LDC has been cancelled so the appellant-plaintiffs cannot claim any right on behalf of the NOC.
Upon perusal of the record, it is also clear that the disputed land was reserved for allotment to SC/ST community and the appellant-plaintiffs have trespassed over the said land, therefore, the respondent-Nagar Palika initiated proceedings against the appellant-plaintiffs and issued notices to the appellant-plaintiffs, but the appellant-plaintiffs did not file any reply to the notice of Nagar Palika, then Nagar Palika proceeded to dispossess the illegal possession of appellant-plaintiffs, then the present suits had been filed by the appellant-plaintiffs in the trial court.
The contention of learned counsel for the appellants that the said pattas are above 30 years old so learned trial court as well as the first appellate court have erred in not taking presumption under Section 90 of the Evidence Act is not tenable because in my considered opinion, when the Nagar Palika (19 of 21) [ CSA-98/2017] disputed the said pattas as well as the sale deeds also and said that the pattas and sale deeds are forged and challenged the genuineness of the documents and appellant-plaintiffs also failed to prove said pattas according to the provisions of law and it is also proved that the appellant-plaintiffs are trespasser over the suit land, in these circumstances, presumption under Section 90 of Evidence Act cannot be drawn because the presumption under Section 90 is not mandatory but is discretionary.
In the case of Ramjilal & Ors. Vs. Geeta Devi & Ors. reported in RLW 1997(3) Raj. 2027 the Jaipur Bench of this Court has held that:-
"Evidence Act, Sec.90 - Presumption regarding a document Thirty years old - Essentials (a) Presumption should be raised at the initial stage of the suit and not after failure of evidence to prove the document (b) it is not obligatory on the court to raise the presumption it is a judicial discretion and
(c) when the genuineness of document is disputed, the court has to consider the pleadings, surrounding circumstances before exercising its discretion."
In the trial court, the respondent disputed the title of plaintiffs and claimed that the suit land vested in respondent- Nagar Palika. In these circumstances, learned court below has rightly held that declaration is also necessary.
The Jaipur Bench of this Court in the case of Bhurji &Anr. Vs. UIT, Alwar & Anr. reported in RLW 1996 (2) Raj. 559 has held that:-
(20 of 21) [ CSA-98/2017] "Civil Procedure Code - Section 100 and Specific Relief Act - Sections 34 to 37 - Suit for injunction without declaration is not maintainable
-Defendants are U.I.T. and Municipality who plead that the land does not belong to the plaintiff but is owned by them - Plaintiff is in unlawful possession - Suit for injunction simplicitor is not helpful to the plaintiff - Held - Plaintiff can be dispossessed."
It is also settled proposition of law that trespasser is not entitled to injunction against the true owner, relief of injunction being a relief in equity, court cannot aid a person who himself is guilty of doing a wrongful thing.
Both the courts below have concurrently found that the appellant-plaintiffs are trespassers over the suit land and respondent is true owner of the suit land. Such land is also reserved for allotment to SC/ST community. The said pattas and sale deeds are forged. It is also concurrently found by both the courts below that no construction permission was given by the respondent-Nagar Palika to Nathmal Gagri on 7.9.1992 and NOC was also obtained by the appellant-plaintiffs Om Prakash and Jitendra by their personal influence and NOC was illegally given by unauthorised person. It is also held that the appellant-plaintiffs failed to prove their long and legal possession over the suit land.
The findings of both the courts below are based on cogent reasons and evidence available on record and based on the provisions of law. The courts below have not erred in refusing (21 of 21) [ CSA-98/2017] injunction to the appellant-plaintiffs and dismissing the suits and appeals.
This Court is satisfied that the courts below have not misread any evidence nor overlooked any material available on record. The finding of fact recorded by the learned courts below cannot be said to be perverse. The courts below have concurrently found that the pattas produced by the plaintiffs were forged. On the basis of the forged pattas, a sale deed does not confer any right of ownership or possession over the land in question to the plaintiffs. The respondents initiated proceedings against the appellant-plaintiffs with due process of law.
In these circumstances, there is no ground to interfere with the judgments of the learned courts below.
The judgments cited above by learned counsel for the appellants are not applicable in the present appeals as the facts of the present cases are distinguishable from the cases cited above.
In the result, there is no merit in these appeals and looking to the concurrent findings of the courts below the appeals are liable to be dismissed at admission stage..
Accordingly, the appeals are dismissed. No order as to costs.
( RAMCHANDRA SINGH JHALA), J.
babulal/