Rajasthan High Court - Jaipur
Mohammed Sharif vs Nagar Palika Ringus Through E O on 6 May, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Second Appeal No.337/2012 With Stay Application No.2208/2012 Mohd. Sharif Vs. Nagar Palika Ringus through Executive Officer and Another Date of Order ::: 06.05.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Vidhut Gupta, counsel for appellant #### By the Court:-
This is plaintiff's second appeal filed against judgment and decree dated 10.05.2012 of learned Additional District Judge (Fast Track) No.2, Sikar, in Regular Civil Appeal No.1/2012, whereby he dismissed the appeal and affirmed the judgment and decree dated 12.08.2011 of learned Civil Judge (Junior Division) Ringus, District Sikar, whereby the suit for permanent injunction filed by plaintiff was dismissed.
Plaintiff filed a suit for permanent injunction against the defendants Nagar Palika, Ringus, stating that he owned and possessed a plot in Ward No.5 of Ringus town and constructed a shop of west facing, in which he has been doing business of grocery items for last forty years. The said land never remained in possession or occupation of the Nagar Palika. The plaintiff is paying the amount under the Provident Fund Act for the land, to the defendant-respondents. The respondents are now claiming it to be a government land and are adamant to dispossess the appellant.
The defendants contested the claim of the plaintiff about long possession over the disputed land. It was pleaded by the defendants that the plaintiff has encroached upon the municipal land on or around February, 2001. It was denied that the plaintiff was running a grocery shop therein. It was also denied that the defendants ever recovered the money from the plaintiff under the PF Act for that shop. The plaintiff illegally encroached upon the disputed land on or around February, 2001 and raised a kaccha construction using kaccha bricks thereon in April, 2001. Earlier, he had similarly encroached upon this land in June, 1989 by putting slabs and wooden kiosk, which was removed by the Nagar Palika on 21.06.1989. Thereafter, a nala was constructed over the land. The alleged shop, in fact, is being run by his son from pucca house of the plaintiff situated towards west of the road.
Learned trial court framed four issues. Issues no.1 and 2, whether the plaintiff was in possession of the disputed land prior to constitution of the Municipal Board in Ringus and whether he was entitled to have any permanent injunction, were decided together. Learned trial court concluded that a pucca nala is constructed beneath the encroachment made by the appellant. The plaintiff produced four witnesses in support of his case. Mohammad Sharif (PW-1), in his cross-examination, admitted that patta of that land was issued in favour of one Guljarilal Tiwari by Gram Panchayat, Ringus, which is Exhibit A-1. He admitted that there is railway boundary in the eastern of the disputed house. He admitted that there was bus stand near the disputed place, for the buses which use to ply to Khatu. It is also admitted that in the western side of the disputed place he has a pucca house after the public way. He has also admitted that the disputed land has sewer pipe line below it, which was constructed in 1989. He has admitted that one Gulab Khan had made an encroachment in the northern side of the disputed plac4e by placing a kiosk and slabs, but the same was removed by the Municipal Board at the time of construction of pucca nala. He has also admitted that at the time when pucca nala was constructed and his encroachment was removed by the Municipal Board, he filed a suit before the Civil Court and that he has not purchased this land from anyone. He has also admitted that he has a meat shop in his house situated in western side. He has further admitted that there is a public way in the southern side of the disputed place which goes towards eastern side upto the railway boundary.
PW-2 Mohammad Gafoor in cross-examination has admitted there Nagar Palika has constructed sewer pipe line beneath the disputed land. There was bus stand near the disputed place for the bus which used to ply towards Khatu. He has also admitted that before the pucca nala could be constructed, the encroachment made over the disputed land by plaintiff and Gulab Qureshi was removed. The plaintiff has a pucca house in the western side of the disputed plot after the public way. He has admitted that the plaintiff has not purchased the disputed land from anyone or from the Municipal Board, but has made encroachment over it by putting his kiosk only because others also made similar encroachments.
Nanu Ram (PW-3) has admitted that earlier the disputed land was part of public way. There was bus stand near the disputed land for the bus which used to ply towards Khatu. He has also admitted that before the pucca nala could be constructed, the encroachment made over the disputed land by plaintiff and Gulab Qureshi was removed by the Municipality. Jeewan Ram (PW-4) has also made a similar statement.
Learned trial court has analyzed the documentary evidence Exhibit A-1, which is patta of the house of the plaintiff issued by Gram Panchayat, Rigus, on 05.09.1963 in the name of one Guljarilal. The said house was purchased by the plaintiff through registered sale-deed. The site plan of the house and its adjoining land indicates that there was 26½' wide public way in front of the disputed house and after the public way there is railway boundary. A perusal of the site plan shows that house of Gulab Kasai is situated in northern side, house of Samsu Kasai is situated in the southern side, railway boundary is in eastern side after leaving the public way of 26½' wide and the agriculture field of Jodhraj is situated in the western side. The said document was issued in the year 1963, when the railway boundary as well the houses of Gulab Kasai and Samsu Kasai were already constructed. Learned trial court on that basis concluded that whatever the land over which encroachment was made by the plaintiff, is part of the public way having width of 26½' and certain encroachments over the land of public way made by plaintiff and Gulab Kasai were also removed by the Municipality at the time of construction of pucca nala. This was a public way and nobody acquires any right on the land of public way. The appellate court has concurred with the findings recorded by the learned trial court.
Learned counsel for appellant has argued that the findings recorded by both the courts below are erroneous. Learned trial court has not framed proper issues, which vitiated the entire proceedings. He further argued that before the learned trial court as well as the first appellate court it was demonstrated from the evidence, both oral as well as documentary that the plaintiff has possession over the disputed land since the time of his ancestors. The witnesses of the plaintiff proved that the disputed land was in possession of the appellant since his ancestors i.e. much before the constitution of the Municipal Board. The plaintiff-appellants also produced the receipts depositing the amount under the PF Act showing that the Municipal Board had been accepting such money. No evidence in rebuttal was produced on record. The courts below have failed to appreciate the report of the Commissioner as well as the site plan, on the basis of possession of the plaintiff over the disputed land is proved. The defendants failed to produce any official witness nor any independent witness to disprove the possession of the appellant over the disputed land.
On hearing learned counsel for the appellant and perusing the material on record and analyzing the evidence produced, I find that the learned trial court has rightly dismissed the suit of the appellant and learned appellate court has rightly upheld the same. This court hardly finds any prima facie case in favour of the appellant. This court is of the view that the appellant apparently failed to prove his prima facie case before the trial court so as to grant of injunction. He failed to prove his title over the disputed land. He claimed possession over the disputed land for last more than 40 years, wheres in cross-examination he admitted that in 1989 a pucca nala was constructed beneath this land. Exhibit 1, patta of the land of his house, was issued to the predecessor-in-title by then Gram Panchayat, Ringus, proved the width of the land in front of his house to be 26½' and it was within this land that the pucca nala/sewage land was constructed by the Municipal Board. All the witnesses of the plaintiff admitted the fact that when the pucca nala was constructed, the encroachments not only of the appellant but also of other persons, who had illegally encroached upon the land of public way i.e. of Gulab Kasai, were removed. The plaintiff admitted that even at that time he filed a civil suit but did not disclose as to what happened to that suit. An inference can be drawn that even in that suit the plaintiff did not succeed. Now also it is evident that the plea of the appellant that he was in possession of the land covered by his kiosk was in his possession for last more than 40 years, is palpably false because apparently in 1989 all those encroachments were removed and counting from that, it does not become 40 years. It is settled proposition of law that no one acquires any right or title over the land of public way. The Municipal Board is a custodian which holds such land in public interest on behalf of the public at large. Even the Municipal Board cannot confer any right or title by way of regularization, over the land of public way.
I have considered the submissions of the learned counsel for the appellant in the light of the findings of both the courts below and I find that the controversial issues involved in the present case relate to question of fact and there is concurrent finding of fact by both the courts below, which cannot be interfered with by this court in second appeal under Section 100 of the C.P.C. All these questions do not raise any question of law muchless any substantial question of law in the meaning of Section 100 of the CPC. The second appeal is accordingly dismissed in limine.
Consequent upon dismissal of appeal, the stay application, filed therewith, does not does not survive and same is also dismissed.
(Mohammad Rafiq) J.
//Jaiman//82 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW