Rajasthan High Court - Jaipur
Jaipur Development Authority vs Smt Prem Kumari W/O Late Thakur Raja ... on 27 February, 2025
Bench: Manindra Mohan Shrivastava, Bhuwan Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Civil No. 33 of 1997
In
S.B. Civil First Appeal No.73 of 1991
1. Jaipur Development Authority (Successor of erstwhile Urban
Improvement Trust Jaipur) through its Secretary, Jawahar Lal
Nehru Marg, Jaipur.
2. Nagar Nigam Jaipur Heritage through its Commissioner, Jalebi
Chowk, Jaipur
----Appellants/Defendants
Versus
1. Smt. Prem Kumari W/o Late Thakur Raja Singh R/o Plot No.1
Sardar Patel Marg, C-Scheme Jaipur died now represented
through :-
1/1 Smt. Jayendra Kumari W/o Shri Arunpuri, R/o A-3 Sardar
Patel Marg, C-Scheme Jaipur.
1/2 Smt. Chetna Kumari W/o Shri Ajay Singh R/o Plot No.D-103,
Meera Marg, Bani Park, Jaipur.
2. Smt. Shakuntala Kumari (Since Deceased) through her legal
representative:-
2/1 Rao Surendra Pal Singh S/o Rao Brijendra Pal Singh aged 67
years, R/o Plot No.A-1 Sardar Patel Marg, C-Scheme, Jaipur
(Since Deceased)
----Respondents/Plaintiff
3. Shri Durga Shanker S/o Shri Birdi Chand Purohit, R/o D-63
Chomu House Colony, Sardar Patel Marg, C-Scheme Jaipur (since
died)
4. Shri Shyam Sunder S/o Shri Kalu Ram Khotari, R/o D-41
Chomu Kothi Compound, Sardar Patel Marg, C-Scheme, Jaipur.
(Since Dead)
---Proforma Respondents/Plaintiffs
For Appellant(s) : Mr. N.K. Maloo, Senior Advocate
assisted by Mr. Pratyush Sharma &
Mr. Shivam Mishra Advocate
Mr. Amit Kuri Advocate
For Respondents : Mr. Anil Mehta, Senior Advocate
No.1, 1/1, 1/2 & 2/1 assisted by Mr. Yashodhar Pandey
Advocate &
Mr. Ranvijay Singh Advocate
Ms. Suruchi Kasliwal Advocate
through VC
(Downloaded on 03/03/2025 at 10:12:49 PM)
(2 of 49) [SAC-33/1997]
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE BHUWAN GOYAL
(Through V.C.)
Judgement
27/02/2025
By the Court: (Per Manindra Mohan Shrivastava,CJ)
1. This appeal, under Section 18 of the Rajasthan High Court Ordinance, 1949, is directed against judgment/decree dated 29.05.1997 in S.B. Civil First Appeal No.73/1991 passed by the learned Single Bench (First Appellate Court), whereby, the appeal of respondent-plaintiff has been allowed, judgment/decree of the trial Court has been set aside and a decree of permanent injunction has been granted in favour of plaintiff Smt. Prem Kumari & Anr. In the suit filed by respondents-plaintiffs Smt. Prem Kumari and Anr., a decree of permanent injunction was sought against the then UIT (now Jaipur Development Authority) & other defendants Durga Shankar and Shyam Sunder seeking to restrain them from interfering with the possession and enjoyments of property in dispute inter alia on the pleadings that the land in dispute, marked in the plan appended with the plaint, there exists one well, fountain, swimming pool etc. in front of the existing building, of which the plaintiffs are the owners. It was pleaded that defendants no. 2 and 3, in collusion with the officers of defendant no. 1, are trying to take forcible possession and dispossess the plaintiffs with the help of police and further that the defendants are demolishing the water channels and have started digging soil thereby giving cause of action to file the suit.
2. Plaintiffs pleadings were that Thakur Raj Singh was the sole owner of Chomu Kothi Compound. Plaintiff No. 1 Smt. Prem Kumari is her widow and plaintiff No. 2 Smt. Shakuntala Kumari is (Downloaded on 03/03/2025 at 10:12:49 PM) (3 of 49) [SAC-33/1997] the daughter. After death of Thakur Raj Singh, they inherited the property of deceased Thakur Raj Singh and are in possession. Further pleadings made were that Thakur Raj Singh, during his lifetime, had divided a part of the land in plots, which were sold to different parties for construction of residential houses and shops. Out of the total land belonging to Thakur Raj Singh, a part of the same was divided into plots and sold and some land was acquired by the State. The land in dispute, as per the annexed plan, belongs to the plaintiffs and they are in possession. Defendants Durga Shanker and Shyam Sunder, having purchased plots, constructed their houses and are residing therein. The defendants, in collusion with the authorities of UIT (JDA), are attempting to dispossess the plaintiffs from the land in dispute shown in the map as 'ka', 'kha', 'ga', 'gha' and an attempt was made to dispossess the plaintiffs on 27th April 1979 with the help of police by forcibly entering into the plot, engaging in demolition and digging. When the plaintiffs' power of attorney resisted, the officers of UIT declared that the land in dispute is required to be developed as park for the use of the residents including the defendants Durga Shankar and Shyam Sunder. Thus, a cause of action has arisen seeking a decree of permanent injunction restraining the defendants from interfering with the plaintiffs possession over the subject land described as 'ka', 'kha', 'ga', 'gha' in the plan appended with the plaint.
3. The defendant No. 1 Jaipur Development Authority, in its written statement, came out with the pleadings that the land in dispute is a public park, which vests in the Urban Development Trust (UIT) and is a land of public use for the residents of the (Downloaded on 03/03/2025 at 10:12:49 PM) (4 of 49) [SAC-33/1997] colony and there is neither any title, nor any possession of the plaintiffs. Thakur Raj Singh, during his lifetime, decided to develop residential colony and at that time, he had surrendered the land in dispute for public use and the same is being used for that purpose, therefore, the UIT is legally entitled to develop the park. The land in dispute as well as "Hoj", "Dhore", "Fountain" and all other articles lying therein have vested in the UIT. It was also pleaded that in the year 1958 itself, Thakur Raj Singh had prepared a development plan under which residential and commercial plots were divided and sold. On 01.01.1958, Thakur Raj Singh had submitted layout plan along with letter dated 01.01.1958 to the then Commissioner of Nagar Parishad, Jaipur, wherein he stated that the existing garden comprising of well etc. is being surrendered for the common use of the residents of the colony going to be developed after sale of residential plots and after grant of necessary permission of the road construction and garden comprised therein, would be available for public use. Thakur Raj Singh again submitted application seeking sanction of sub division of plots before the UIT along with map and also submitted stamped agreement on 08.02.1960 giving undertaking to develop the colony as per the law. Finally on 10.09.1965, UIT granted sanction for sub division of plots and upon such sanction granted for sub division, all the lands, garden and open land vested in UIT, therefore, interest, if any, of the plaintiffs in the property had extinguished and the defendant no. 1 UIT (now Jaipur Development Authority) is in possession.
4. Defendants No. 2 and 3 also filed written statement inter alia containing similar pleadings in defense that Thakur Raj Singh was (Downloaded on 03/03/2025 at 10:12:49 PM) (5 of 49) [SAC-33/1997] granted permission to develop land of Chomu Kothi compound into a residential scheme on the condition of surrender of disputed land, well, "dhore", "hoj", and other structures situated on the disputed land. Since then, the land is under common use of the residents of the colony and, therefore, UIT has the authority to develop the disputed land as a park.
5. Plaintiffs filed rejoinder wherein they denied that the land in dispute never vested in the trust nor is in their possession. It was also pleaded that even if any letter was submitted on 01.01.1958 by Thakur Raj Singh to Nagar Parishad Jaipur, or any lay out submitted, it does not affect the title of the plaintiffs. Thakur Raj Singh did not submit any signed layout plan nor surrendered the disputed land for common use of the residents.
6. Learned trial Court framed as many as 6 issues and further allowed the parties to lead oral and documentary evidence. Vide judgment/decree dated 10.08.1990 passed in Misc. Civil Suit No.25/1989, the plaintiffs' suit was dismissed.
7. Aggrieved by the judgment/decree of the trial Court, respondent-plaintiff Smt. Prem Kumari and Anr. filed first appeal before this Court, which was registered as First Appeal No.73/1991. By impugned judgment and decree, the appeal filed by the plaintiffs Smt. Prem Kumari and Anr. was decreed giving rise to instant appeal.
8. At this stage, it is relevant to mention that two defendants of the suit namely, Durga Shankar and Shyam Sunder had filed Special Appeal Civil No. 50/1997 aggrieved by the aforesaid judgment/decree passed by the first appellate authority (learned Single Judge). That appeal was, however, dismissed as abated (Downloaded on 03/03/2025 at 10:12:49 PM) (6 of 49) [SAC-33/1997] vide order dated 17.12.2018. A finding was recorded that the suit preferred by Smt. Prem Kumari and Shakuntala (since dead) against the defendants Durga Shankar and Shyam Sunder not impleaded in their representative capacity. The substitution of them cannot be permitted. Since the legal representatives of original defendants Durga Shankar and Shyam Sunder were not on record, Special Appeal Civil No. 50/1997 was declared abated and accordingly dismissed. It was further made clear that the dismissal of the appeal is without going into the merits of the issue and it would be considered separately. Thus, dismissal of the appeal would not affect the other litigation.
9. The present appeal has been filed by one of the defendants namely, Jaipur Development Authority.
10. Before we proceed to decide the present appeal, it is extremely relevant to place on record that Durga Shankar, defendant in the injunction suit filed by Smt. Prem Kumari, earlier filed a suit in the Court of Civil Judge, Jaipur City, Jaipur seeking declaration that the land in dispute including A, B, C, D and circle X and triangle Y shown in the map appended with the plaint are places of common use which were surrendered by Thakur Raj Singh while developing scheme of residential scheme under which plots were divided and sold to plaintiff Durga Shankar and other residents. The disputed property in the suit filed by Smt. Prem Kumari was also included as part of the disputed property in the suit filed by Durga Shankar. The file of civil suit no. 165/1967 (30/95) Durga Shankar Vs. Smt. Prem Kumari was summoned in the suit filed by Smt. Prem Kumari and remained attached with record of the suit filed by Smt. Prem Kumari. When Smt. Prem (Downloaded on 03/03/2025 at 10:12:49 PM) (7 of 49) [SAC-33/1997] Kumari filed first appeal before this Court, the first appellate Court returned the records of civil suit filed by the Durga Shaknar against Smt. Prem Kumari to the Court of Additional District Judge with a direction to decide that suit within a given time frame. The suit was tried and dismissed by Additional District Judge on 29.04.1995. Against that judgment/decree, Durga Shaknar preferred civil first appeal no. 119/1995 before the first appellate Court which was dismissed on 29.05.1997. A special appeal civil has also been preferred by Durga Shankar registered as D.B. Special Appeal Civil No.51/1997 (Durga Shankar & Anr. Vs. Smt. Prem Kumari & Ors.).
11. The two appeals were heard analogously. However, we will proceed to first decide this appeal.
12. It is relevant to mention here that though the declaratory suit was filed by Durga Shankar at earlier point of time before the Civil Judge, later on, the injunction suit filed subsequently by Smt. Prem Kumari was tried first. The parties lead their respective oral and documentary evidence in the injunction suit filed by Smt. Prem Kumari. The suit filed by Durga Shankar was decided after the dismissal of the suit filed by Smt. Prem Kumari. However, Durga Shankar's suit was also dismissed by the learned Additional District Judge.
13. The land in dispute involved in the injunction suit filed by Smt. Prem Kumari was also part of the land in dispute in the declaratory suit filed by Durga Shankar. Even though the suit filed by Smt. Prem Kumari against Durga Shankar and UIT was dismissed, under the order of the first appellate Court in the appeal arising from judgment/decree passed in the injunction suit (Downloaded on 03/03/2025 at 10:12:49 PM) (8 of 49) [SAC-33/1997] filed by Smt. Prem Kumari, the records of civil suit filed by Durga Shankar were returned and the parties again led oral and documentary evidence on the same issue i.e. whether the land in dispute in the suit of Smt. Prem Kumari was surrendered as park by Thakur Raj Singh while developing land comprised in Chomu Kothi compound as residential scheme and commercial plots. Thus, two sets of oral and documentary evidence were led by the parties in their respective suits against each other.
14. This judgment will decide appeal filed by JDA aggrieved by the judgment/decree of the first appellate Court allowing Smt. Prem Kumari's appeal against dismissal of her suit, setting aside trial Court judgment and granting decree of permanent injunction in favour of Smt. Prem Kumari and against UIT, Durga Shankar and other plot holders.
15. Submissions of learned Senior Counsel for the appellant-JDA are as below:
15.1 There is no specific denial of the averments made in para 15 and 16 of the written statement by the plaintiffs in para 8 of rejoinder. The denial for want of knowledge does not constitute specific denial in para 15 and 16 of the written statement. It was stated that along with letter dated 01.01.1958, lay out plan was submitted to Municipal Council by late Thakur Raj Singh and when jurisdiction of Sub-Division was conferred on UIT, an agreement on stamp paper dated 08.02.1960 was also submitted for sub-
division and the said sub-division was ultimately approved by UIT on 10.09.1965 by resolution, after necessary correspondence and upon approval, the roads gardens and other open spaces vested in the UIT. It is not the case of the plaintiffs that letter dated (Downloaded on 03/03/2025 at 10:12:49 PM) (9 of 49) [SAC-33/1997] 01.01.1958 was ever withdrawn. Reliance has been placed on the decisions of the Hon'ble Supreme Court in the cases of Muddasani Venkata Narsaiah (Dead) through Legal Representatives Versus Muddasani Sarojana 1, Gian Chand and Brother and Another Versus Rattan Lal Alias Rattan Singh2 & Jahuri Sah and Others Versus Dwarika Prasad Jhunjhunawal and Others3.
15.2 The witnesses of JDA namely Gordhan Sharma DW-2/A and Durga Narayan DW-1/A have not been effectively cross examined on any relevant aspect, nor the learned Single Judge has referred to the statements of these witnesses. The learned Single Judge has not even referred to plaintiffs' own evidence. As per Section 58 of the Evidence Act, facts which are admitted need not be proved. It is an admitted fact that late Thakur Raj Singh submitted application in 1958 for sub-division and approval of lay out plan, which matter remained pending till 1965 and finally vide resolution dated 10.09.1965 of the UIT (JDA), the residential colony was sanctioned which has the affect of vesting the land in dispute as public park.
15.3 Referring to the oral and documentary evidence including documents annexed with application under Order 13 Rule 2 CPC in the suit filed by Durga Shankar against Smt. Prem Kumari (giving rise to Appeal No. 51/1997), the evidence of Durga Shankar Purohit DW-1/B proves the fact stated in the written statement that Thakur Raj Singh has submitted letter on 01.01.1958 followed by another letter in 1959 and he has proved the
1. (2016) 12 Supreme Court Cases 288
2. 2013 (2) Supreme Court Cases 606
3. AIR 1967 Supreme Court 109 (Downloaded on 03/03/2025 at 10:12:49 PM) (10 of 49) [SAC-33/1997] signature of Thakur Raj Singh in the agreement and his own signature as witness in the agreement. He has deposed that Thakur Raj Singh signed in his presence and required him and others namely Durlabh Ram and Shayam Sunder Kothari to sign the agreement which was to be submitted with UIT (JDA). A certified copy of letter Exhibit A-3 was obtained by him from Nagar Parishad and the original was filed by Thakur Raj Singh with the Nagar Parishad. The scheme as submitted by Thakur Raj Singh was accepted by the Chief Town Planner in 1961. He has also stated that in 1957, he purchased the plot and Thakur Raj Singh first submitted map in 1957 followed by another in 1959 in the Nagar Parishad and third map was submitted in the UIT (JDA). PW-1 Smt. Prem Kumari in her evidence states that she does not know whether Thakur Raj Singh had written letter dated 01.01.1958.
15.4 Referring to the oral and documentary evidence including documents annexed with application under Order 13 Rule 2 CPC in the suit filed by Durga Shankar against Prem Kumari (giving rise to Appeal No. 51/1997), submission of letter/undertaking dated 08.02.1960 of Thakur Raj Singh to Urban Improvement Board, Jaipur along with copy of the plan for approval on stamp paper is proved by DW-2/A Gordhan Sharma and DW-1/B Durga Shankar Purohit. This plan was approved on 06.04.1961 and continued on 08.04.1961 by Chief Town Planner to UIT. These facts are proved by the evidence of the defendants and the same have not been controverted.
Submission of letter dated 15.09.1960 by Thakur Raj Singh to Secretary, State Government, Local Self Department for (Downloaded on 03/03/2025 at 10:12:49 PM) (11 of 49) [SAC-33/1997] approval of lay out plan along with letter dated 08.02.1960 stating that if the provisional approval of plan is sanctioned, he undertakes to develop the colony as per UIT, is also proved.
Approval of certified copy of plan by Chief Town Planner on 06.04.1961 is proved by DW-2/A Gordhan Sharma and DW-1/B Durga Shankar Purohit. PW-1 Prem Kumari denies the fact for want of knowledge and PW-2 Surendra Singh admits that the plan was similar to Exhibit A-1.
Letter dated 08.04.1961 written by Chief Town Planner to Secretary, UIT conveying the approval of plan with minor modifications and suggestions that the garden shown in the plan should become a public garden is also proved by DW-2/A Gordhan Sharma.
Letter dated 25.07.1961 to the Chief Town Planner giving suggestions for modifications filed along with application under Order 13 Rule 2 in Appeal No. 51/1997 and letter of Chief Town Planner dated 03.12.1964 suggesting to UIT that lay out plan originally approved by it as per the letter dated 08.04.1961 be followed is also proved.
Resolution dated 10.09.1965 of UIT for approval of the plan under the Rajasthan Urban Areas (Sub-division, Reconstitution and Improvement of Plots) Rules, 1964 (hereinafter referred to as 'the Rules of 1964') w.e.f. 14.12.1964, is also proved by DW-2/A Gordhan Sharma.
Reliance is placed on the decisions of the Hon'ble Supreme Court in the cases of New Delhi Municipal Council and Others Versus Tanvi Trading and Credit Private Limited and Others (Downloaded on 03/03/2025 at 10:12:50 PM) (12 of 49) [SAC-33/1997] & other Connected case4 & Howrah Municipal Corpn. And Others Versus Ganges Rope Co. Ltd. And Others 5 & Usman Gani J. Khatri of Bombay Versus Cantonment Board and Others6 in support of submission that rules prevalent on the date of approval shall be applicable.
Letter of Secretary, UIT to Chief Town Planner Exhibit A-16 is also proved by DW-2/A Gordhan Sharma.
Letter dated 01.01.1958 was never withdrawn hence it has to be read with agreement and lay out plan submitted on 08.02.1960. DW-1 Durga Shankar has clearly stated that the first map was submitted, lay out plan was submitted by Thakur Raj Singh in 1957 followed by another in 1958 and 3 rd time, map was submitted in UIT i.e. on 08.02.1960 which fact is not controverted. Even if there is any oral evidence which is at variance with the documentary evidence, the documentary evidence will prevail.
15.5 Under the provisions of the Rules of 1964, upon submission of the map along with lay out plan showing the disputed land as park proposed to be developed under the residential scheme, the land vested in the local authorities upon approval of the sub- division plan. Reliance is placed on the decisions of the Hon'ble Supreme Court in the case of Municipal Corporation, Ludhiana and Another Versus Balinder Bachan Singh (Dead) by Lrs. And Others7, N. Vijayalakshmi Versus The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai-3 & Others8, the decisions of this Court in the cases of Rakesh & 4 2008 (8) Supreme Court Cases 765
5. 2004 (1) Supreme Court Cases 663 6 AIR 1994 Supreme Court 233 7 2004 (5) Supreme Court Cases 182 8 2016 Supreme Court Cases On Line Mad 21937 (Downloaded on 03/03/2025 at 10:12:50 PM) (13 of 49) [SAC-33/1997] Others Versus The State of Rajasthan & Others 9 & Morden Educational and Cultural Society Versus Nizam & Ors. 10, the decision of the Madhya Pradesh High Court in the case of Kantilal and Others Versus Town Improvement Trust, Ratlam and Others11 & the decision of the Calcutta High Court in the case of Sisir Kumar Ghose Versus University of North Bengal and others12. Thus, the primary right over the land is of the local authorities in whom the land vested and the right of the public/residents of the colony is consequential/secondary. Once the land vests in the local authority, the public have the right to use the same. It is argued that Section 29 of the Urban Improvement Act, 1959 (hereinafter referred to 'the UIT Act') and Section 80 of the Jaipur Development Act, 1982 are pari materia to Section 274 of Rajasthan Municipality Act, 1958.
16. The plan submitted on 01.01.1958 and another on 08.02.1960 are substantially the same. In the plan dated 01.01.1958, the land on the backside of the Kothi was also shown and plotting was also done therein but the land on the backside of the Kothi was acquired and possession was taken on 14.02.1959. Hence, in the plan dated 08.02.1960 "workshop of roadways" has been mentioned in the backside. In both the plans, in front side of the Kothi, disputed land of garden remains the same. Thus, disputed land of garden shown in the lay out plan on the front side of the Kothi remains the same.
17. The lay out plan approved on 10.09.1965 was subject matter of suit filed by plaintiff Smt. Prem Kumari against Mahaveer 9 (2011) (4) WLC 91 10 2007 (4) RLW 3214 11 AIR 1986 MP 134 12 AIR 1971 Calcutta 403 (Downloaded on 03/03/2025 at 10:12:50 PM) (14 of 49) [SAC-33/1997] Prasad in 1966 which was dismissed on 19.10.1974. Her appeal was also dismissed on 23.03.1990. That very plan was filed by Durga Shankar and Ors. on 17.03.1967 in their suit for declaration of title. In the present case, Smt. Prem Kumari-the plaintiff did not come out with the case that the plan was wrongly approved or approved against law in the year 1965. She never challenged the plan approved on 10.09.1965 but acted upon the same by selling all the plots.
18. Referring to documents Exhibit-A22 and Exhibit-A4 filed in Appeal No. 51/1997 with application under Order 13 Rule 2 CPC, it is submitted that application by Thakur Raj Singh to Land Acquisition Officer gives details of area of land left for public utility mentioning that 07.14 acres have been left for roads and 02.75 acres have been left for park in the proposed scheme.
19. Referring to Exhibit-A26 filed in Appeal No. 51/1997 along with application under Order 13 Rule 2 CPC, it is submitted that in the judgment in the Reference Case No. 109/1962 [Smt. Prem Kumari Vs. State], it has been recorded that by award dated 14.02.1961, 14.8 acres of land was acquired and further that the land lying in front of the main building on Sardar Patel Marg has already been sold by the claimant, whereas, rest of the vacant land has been acquired by the government. It has also been observed in the said judgment rendered in the reference case that whole land around Chomu Kothi House was in possession of claimant out of which, possession of front portion is retained, which has been developed by making roads and laying water and electricity lines and leaving the land for park etc. In the said judgment, it has also been recorded that out of 29.42 acres of (Downloaded on 03/03/2025 at 10:12:50 PM) (15 of 49) [SAC-33/1997] land, the land measuring about 7 acres for roads and 2.75 acres for park had to be left by the claimant.
20. Plaintiff Smt. Prem Kumari has not given any explanation about 2.75 acres of land left for park. The land in front of Kothi i.e. A, B, C, D park and circle X and Triangle Y as well as children park on the back side was included in 2.75 acres.
21. Exhibit-A5 to Exhibit-A13 proves that there exists a park which is under common use by public for different purposes as deposed by DW-1 Durga Shankar Purohit. The evidence that the land is being used for public park where Puja and other common activities are performed, the land used for sports and other events are organized, have not been controverted in the cross examination.
22. Mohini Devi and Mohan Lal encroached upon the part of the land of the park which the UIT tried to remove whereafter Mohini Devi and Mohan Lal filed suit. Their suit was dismissed and the UIT removed the encroachment. Smt. Prem Kumari did not take any action to prevent the removal of the encroachment. Therefore, this conduct shows that the land did not belong to her. Plaintiff-Smt. Prem Kumari did not raise any objection when UIT took action and removed encroachment.
23. There is evidence that there was a well in the park and after the lay out plan was approved, Public Health Engineer Department of the State installed its own motor in the well and pipeline and has been supplying water to the colony and others. Plaintiff-Smt. Prem Kumari denied this fact for want of knowledge.
24. Smt. Prem Kumari filed suit against Mahaveer Prasad in which the same lay out plan of the colony was under (Downloaded on 03/03/2025 at 10:12:50 PM)
(16 of 49) [SAC-33/1997] consideration. Suit was filed against the residents of the colony alleging that residents of the colony have constructed Chabutra on the land marked as Shiva Temple in the plan and the same may be removed. The suit was dismissed with the finding that the map of Shiva Temple was submitted by Thakur Raj Singh which was meant for the colony and a finding has been recorded that the land for Shiva temple was surrendered by Thakur Raj Singh and the same no longer remained his personal property. After approval of the sub-division, the road, parks and open land vested in UIT. The judgment/decree passed in the suit filed by Smt. Prem Kumari against Mahaveer Prasad attained finality. This was the suit filed in representative capacity under Order 1 Rule 8 CPC and is, therefore, a judgment in rem. Certified copy of the plan, written statement, judgment were filed in the first appeal no. 119/1995 filed by Durga Shankar with application under Order 41 Rule 27 CPC on 07.02.1995, but the application was not decided. The Court can take judicial notice of the judgments passed in two suits namely, the suit filed by Mohini Devi and Mohan Lal against UIT and the suit filed by Smt. Prem Kumari against Mahaveer Prasad.
25. Section 29 of UIT Act is not applicable as that relates to framing of scheme by UIT on its own which already vests in UIT or is acquired by UIT for the purpose of scheme, as is clear from Section 29, sub-section 2(a) which provides for acquisition of land for the scheme. Present is a case of sub-division of plots by the owner Thakur Raj Singh who submitted letter on 01.01.1958 along with the lay out plan in which land in dispute was shown and surrendered as park for the colony.
(Downloaded on 03/03/2025 at 10:12:50 PM)
(17 of 49) [SAC-33/1997]
26. The Rules of 1964 have been framed in exercise of powers under Section 74 (bb) of the UIT Act and it relates to sub-division, re-constitution and development of private property which does not belong to the trust. Therefore, present is not a case of framing of scheme by the UIT under Section 29 of the UIT Act, but sub- division of plots by the owner of the land by surrender of certain lands including the disputed land as park.
27. Submissions of learned Senior Counsel for the respondents are as below:
28 The plaintiffs claimed that the land marked as O, P, Q, R in the plan annexed with the plaint which includes well, fountain and swimming pool in front of the existing building of which the plaintiffs are the owner. Factum of surrender could be ascertained only by the plan which was actually submitted with the letter dated 01.01.1958. Defendants failed to prove submission of letter dated 01.01.1958 much less map alleged to have submitted with that.
29 The evidence led by three witnesses of the plaintiffs is that the suit property was never left for the use of the colony, nor handed over to it by late Thakur Raj Singh, nor any assurance was given to them to develop the disputed area for public use. Smt. Prem Kumari in cross examination denied that the plan was ever approved or released by UIT. Her statement has been misread. She denied about knowledge of the documents submitted by the defendants and also the signatures of Thakur Raj Singh on Exhibit A1 or on the plan Exhibit A1/1. She, in her cross examination, also denied other documents which were produced and with which she was confronted.
(Downloaded on 03/03/2025 at 10:12:50 PM)
(18 of 49) [SAC-33/1997] The defendants witnesses DW-1/A Durga Narayan, Inspector, JDA has admitted in his cross examination that no record was perused by him and he has given the statement on the basis of the plan A-1/1.
DW-2/A Gordhan Sharma, Engineer, JDA in his cross examination has stated that upon approval of the plan, it is understood that open spaces vest in JDA.
Both the witnesses have said nothing about date of filing of the plan Exhibit-A1/1.
30. The plan was said to be received from Chief Town Planner. However, the plan, which was alleged to have been approved subsequently by UIT, was never submitted, nor does the said plan bear any signatures of the Secretary and Chairman of the trust. Witnesses have not referred to any other document Exhibit-A1/1 regarding approval of plan.
31. As per statement of DW1/B Durga Shankar Purohit, defendant No. 2, Exhibit-A1/1 is the plan in which area marked as O, P, Q, R is shown as public garden and this plan was shown to him before purchase of the plot. However, this defendant claimed to have purchased plot in the year 1957. According to him, the plan prepared prior to 1958 was filed for approval. In cross examination, he states that the plan was approved after purchase of plot. He stated that before sale of plot, the plan of the entire colony was shown to him by Thakur Raj Singh on which assurance was given and is lying with him but the same was not filed.
DW 2/B Ratan Chand Bairagi and DW 3/B Hanuman Prasad claimed that disputed land O, P, Q, R was left for children park and they had signed the map when they purchased the plots in 1957. (Downloaded on 03/03/2025 at 10:12:50 PM)
(19 of 49) [SAC-33/1997]
32. All the defendants witnesses have completely failed to lead evidence with regard to approval of plan by UIT. The defendants have not referred to most of the documents which they led in cross examination of the plaintiffs. The plaintiffs having denied those documents, therefore, the burden was on the defendants to prove the contents of the documents. Exhibit-A/22 and A/4 dated 30.01.1959 said to be written to Land Acquisition Officer was neither proved by the defendants, nor any statement was made in that regard. With regard to Exhibit A/26 dated 31.01.1959, nothing was stated and proved by the defendant witnesses. Large number of documents were not proved by the defendants and they solely relied upon A1/1, lay out plan said to be filed on 01.01.1958 which is bearing approval of the Chief Town Planner dated 06.04.1961. It has no evidentiary value with regard to approval of plan by UIT and the defendants have failed to prove that area O, P, Q, R was left for public and children garden. Reliance is placed on decision rendered by Single Bench of this Court at Principal Seat, Jodhpur in the case of Kesrimal Vs. Harak Chand (S.B. C.F.A. No.26/1985 decided on 28.08.2012). In the cross examination, DW-1/B Durga Shankar admitted the fact that the plan with Exhibit-A/3 letter dated 01.01.1958 is not on record in the suit but he claimed that it was filed in another suit. As Exhibit-A/3 dated 01.01.1958 is not complete as the plan attached with this letter has not been filed much less proved, it being an incomplete document, is not admissible in evidence. Reliance is placed on the decision of the (Downloaded on 03/03/2025 at 10:12:50 PM) (20 of 49) [SAC-33/1997] Hon'ble Supreme Court in the case of Anil Kak Versus Kumari Sharada Raje & Others13.
33. As per the plan Exhibit-A1/1 submitted by the defendants area O, P, Q, R is in two parts. First part is grassing and fountain and the second part is existing garden, existing pool and well. Thus, the entire case of the defendants is on the basis of the letter dated 01.01.1958 and the lay out plan submitted along with the said letter. The plan which was filed, i.e. Exhibit-A1/1, was of the period after acquisition of land in the year 1959. In the plan, area behind the existing building is shown as Rajasthan Roadways Depot which came into existence only after acquisition of the land admeasuring 14.8 acres on 14.02.1959. Therefore, the defendants did not produce correct evidence before the Court and tried to deceive and mislead on the basis of wrong and irrelevant evidence. Thus, the entire basis of the defendants claim that plan Exhibit-A1/1 was submitted, which was not even in existence on 01.01.1958, was submitted along with letter dated 01.01.1958 by Thakur Raj Singh, is false and misleading. Therefore, the defendants failed to prove that the disputed land marked as O, P, Q, R was either surrendered or vested.
34. No plan after 10.09.1965 was ever prepared as per the provisions of the Rules of 1964. As per the rules, each and every part of the map, calculation of the claim with regard to area of road, facility, plots etc. is required to be given. The open spaces are also required to be marked specifically if they are left for public use. The plans which were said to have been approved earlier by the Chief Town Planner and Municipal Engineer were 13 (2008) 7 Supreme Court Cases 695 (Downloaded on 03/03/2025 at 10:12:50 PM) (21 of 49) [SAC-33/1997] only draft plans on which suggestions were given. The final plan was never prepared and the lay out plan was never approved, released or enacted by the UIT as required under Rule 28(1) of the Rules of 1964.
35. The entire case of the defendants is based on the premise that Exhibit-A1/1 was filed along with letter dated 01.01.1958 and as per the assurance given in the said letter, the area marked as O, P, Q, R in plan Exhibit-A1/1 was left for public garden. As plan Exhibit-A1/1 reflects area acquired under acquisition proceedings which happened only on 14.02.1959, the entire case of the defendants falls to the ground.
36. Having realised during hearing of the first appeal that defendants case that plan Exhibit-A1/1 was submitted along with letter dated 01.01.1958 had no legs to stand, a new case was sought to be made out by filing a new plan after 30 years by moving application under Order 41 Rule 27 CPC. The submission of new document was fraudulent, apart from being contradictory and against the defendants' own case in the suit.
37. The defendants failed to discharge their burden of proving the fact that plan Exhibit-A1/1 was filed along with letter dated 01.01.1958. The falsity and afterthought of testimony of defendants witnesses is exposed from their own statement that Exhibit-A1/1 was prepared in the year 1955-56 and was shown to defendants Durga Shankar and Shyam Sunder prior to purchase giving assurance verbally and in written to keep disputed area O, P, Q, R as children park. Plaintiff and her witnesses denied approval, release and authenticity of the lay out plan. The defendants failed to prove from the oral and documentary (Downloaded on 03/03/2025 at 10:12:50 PM) (22 of 49) [SAC-33/1997] evidence led by them as to which plan was submitted along with letter dated 01.01.1958. Neither plan along with letter dated 01.01.1958 was filed, nor the same was proved. The official witnesses of UIT only stated that Exhibit-A/1 is certified copy, but they failed to prove the date of submission. It is also incorrectly stated that Exhibit-A/2 is an agreement, whereas, the same is an application for submission of fresh plan.
38. Fresh letter dated 08.02.1960 Exhibit-A/2 was submitted after taking over possession of 14.8 acres of land on 14.02.1959 under the land acquisition proceedings. Therefore, new and revised application was filed and earlier application and plan ceased to exist and could not be considered, acted upon or approved.
39. After UIT Act came into force w.e.f. 31.07.1959, provisions contained in Section 29, 33, 37 and 38 mandatorily required a procedure to be followed before finalization of a development scheme. It being not the case, once the defendants failed to prove that it was a case of surrender upon sub-division of plots, the law required sanction of the government to be obtained followed by notification of scheme. On 09.07.1959, Jaipur Municipality Act was repealed and Rajasthan Municipalities Act, 1959 came into force. Therefore, upon submission of fresh scheme plan for lesser area on 08.02.1960-Exhibit A/2, all earlier applications/plans came to an automatic end.
40. Letter dated 08.02.1960 Exhibit-A/2 is wrongly described as agreement. As Durga Shankar and Shyam Sunder signed document, they are bound by the contents of the letter which (Downloaded on 03/03/2025 at 10:12:50 PM) (23 of 49) [SAC-33/1997] does not contain any recital to the effect that any land is reserved for public use, much less for public garden.
41. Contents of the letters dated 06.04.1961 and 08.04.1961 of the Chief Town Planner clearly show that as in the plan, existing garden was not proposed as public garden, a suggestion was given that the garden should become public garden along with suggestion regarding merger of certain plots. Chief Town Planner was not the competent authority to take decision, but it was only the Trust, that too by following the due process of law. Secretary, UIT or any other body of UIT did not take any decision with regard to declaring existing garden belonging to Thakur Raj Singh as public garden or for merger of plots, as suggested. Letter dated 25.07.1961 of Secretary, UIT to Chief Town Planner shows that suggestion for modification by Chief Town Planner were not accepted by the Trust in its resolution dated 10.09.1965-Exhibit A/15. The Trust considered the lay out plan of Chomu scheme in respect of shopping area only and decided that previously approved plan of Chomu containing shopping area be adopted. Thus, after the decision of the Trust dated 10.09.1965, the Trust's Engineer was required to prepare fresh plan as per the suggestions of Chief Town Planner. The new plan was required to be prepared and, thereafter, required to be processed in terms of Rules of 1964. The ultimate decision with regard to the plan was required to be placed before the Trust for final approval and after the approval by the Trust, the same could be released in terms of Rule 28(1) of the Rules of 1964 but, in the absence of any such steps having taken place, the defendants failed to prove approval of the plan.
(Downloaded on 03/03/2025 at 10:12:50 PM)
(24 of 49) [SAC-33/1997] Order passed in the suit of Mohini Devi is not binding on Smt. Prem Kumari, as Smt. Prem Kumari was not party to the same and, therefore, it does not operate as res judicata.
42. In the suit filed by Smt. Prem Kumari against Mahaveer and Ors., being members of the colony, JDA and UIT were not parties. That suit was related only to temple which was found to be existing prior to filing of the suit. The temple was a separate property marked in the plan submitted on 08.02.1960. The finding came to be recorded on the basis of the evidence that residents were performing worship in the temple, suit of Smt. Prem Kumari was dismissed. However, the subject land of the present suit was not subject matter of the suit filed by Smt. Prem Kumari against Mahaveer. Neither any issue was framed, nor any finding was recorded that the disputed property in the present case was either surrendered by Thakur Raj Singh for the common use of the residents or that it vested in UIT by operation of law. The present suit relates to open spaces in respect of which issues were framed and decided. Therefore, judgments/decrees passed in the cases of Mohini Devi Vs. UIT and Smt. Prem Kumari Vs. Mahaveer Prasad do not operate as res judicata.
43. The possession of the land in dispute always remained with the plaintiff and the defendants failed to lead cogent, clinching and reliable evidence of common use. The stray evidence in the form of some photographs or meeting, in the absence of clinching proof of surrender or vesting, has been rightly held to be insufficient evidence to discharge burden on the defendants, by the appellate Court.
(Downloaded on 03/03/2025 at 10:12:50 PM)
(25 of 49) [SAC-33/1997]
44. Though the suit filed by plaintiff-Smt. Prem Kumari and another was dismissed vide judgment and decree dated 10.08.1990, the learned Single Bench vide order impugned in this intra-court appeal, reversed the judgment and decree and allowed the suit of the plaintiffs. Learned First Appellate Authority proceeded on an admitted position on record that the land originally belongs to Thakur Raj Singh. The pleadings of the parties clearly show that while filing written statement, the defendants in the suit though denied the claim of the plaintiffs, they have also averred that the land originally belonged to Thakur Raj Singh, but their case is that the land in dispute was surrendered by Thakur Raj Singh for the purposes of park in layout plan and it has also been argued that it also vested in the UIT (Predecessor of Jaipur Development Authority). Therefore, the burden was on the defendants to lead clinching, oral and documentary evidence to prove their pleadings regarding surrender and vesting of the land in dispute.
45. We heard extensively learned counsel for the respective parties and perused records of first appeal and the suit.
46. Present is an intra-court appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 (hereinafter referred to as 'the Ordinance of 1949'). It is neither first appeal, nor a second appeal, but deals with the scope of interference in an intra-court appeal under Section 18 of the Ordinance of 1949.
47. In the case of Kirpal Singh Versus Mst. Kartaro and Others14, a Division Bench of this Court held that though it is open to examine even findings of fact, but unless there are glaring 14 AIR 1980 Rajasthan 212 (Downloaded on 03/03/2025 at 10:12:50 PM) (26 of 49) [SAC-33/1997] circumstances to warrant an interference with a finding of fact arrived at by the learned Single Judge, this Court would ordinarily be not justified sitting in an intra-court appeal or special appeal under Section 18 of the Ordinance of 1949 to re-appreciate the evidence.
In another case of Devaram Versus The State of Rajasthan & Others (76)15, the finding of fact was not interfered with the reasoning that the finding could not be established as perverse. Moreover, it was also observed that unless there are strong reason to justify the interference, the finding of fact should not be interfered with. The Court refused to interfere with the order taking the view that there are no strong reasons which justify interference with the findings recorded by the learned Single Judge. Relying upon earlier judgments, it was also held that in special appeal, this Court should not go into the details of all the findings of the learned Single Judge and a balanced reasoned judgment of the learned Single Judge would not call for interference.
In yet another decision of this Court in the case of M/s. General Produce Co. Ltd. Jaipuria Mansion, Jaipur Versus M/s. Sonmati Holdings, Johari Bazar, Jaipur 16, the scope of interference in intra-court appeal under Section 18 of the Ordinance, 1949 was considered and the findings with regard to possession being not perverse, were not interfered with and a new plea raised at the appellate stage, which was neither pleaded at the stage of trial, was also not accepted.
15 1992 (1) RLW 370
16 1996 (1) WLC (Raj.) 535
(Downloaded on 03/03/2025 at 10:12:50 PM)
(27 of 49) [SAC-33/1997]
In the case of Chhaju Ram Versus Jag Ram and Others17, the scope of exercising intra-Court appellate powers under Section 18 of the Ordinance of 1949, again came up for consideration. It was held as below:-
"8. The decision given in the case of Dr. K.C. Sikroria Vs. Smt. Saria Sikroria (5), is also relied wherein it was observed that the jurisdiction of this court in a special appeal under Section 18 of the Rajasthan High Court Ordinance has to be exercised sparingly, but that cannot be possibly means that injustice can be perpetuated. The interference in the findings arrived at by the Court given while exercising the powers under Section 96 CPC is only warranted when the findings of fact arrived at by the trial Judge are not based on the impressions he gathers from the demeanour of witnesses, and in that situation it becomes the duty of the Appellate Court to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from provided circumstances.
9. xxxxxx
10. xxxxx
11.xxxxx
12. From the various decisions cited above we are of the view that the jurisdiction in special appeal is as is vested in the Single Bench while hearing the appeal as this court while exercising the power of special appeal u/s. 18 of the Ordinance of 1949 acts as a Court of correction and correct its own orders in exercise of the same jurisdiction as is vested in the Single Judge. In other words, this court exercises the power of a court of error as has been held by the Apex Court in Buddala Lakshmaiah & Ors. vs. Sri Anjaneya Swami Temple & Ors. (8). In view of the law laid down by the Apex Court on this point the power in special appeal is quo-terminus with that of Single Judge and, therefore, (1) the evidence has to be read as a whole and if in special appeal the court comes to the conclusion that there is an element of improbability then in such a case the finding of fact can be Interfered; (2) where there is a concurrent finding of fact, this court would be extremely slow to interfere; (3) where any material evidence has escaped attention of the learned Single Judge it can be considered in special appeal. The concurrent finding of fact could be disturbed in a very rare case. Sec. 18 of the Ordinance of 1949 has not restricted the power of this court and, therefore, the proper interpretation which could be taken is that the powers could be 17 1997 (3) RLW (Raj.) 1748 (Downloaded on 03/03/2025 at 10:12:50 PM) (28 of 49) [SAC-33/1997] exercised by the learned Single Judge could alone be exercised in special appeal. While exercising with power the other principles like the demeanour of witnesses in case of oral evidence to the credibility of the witnesses is not to be interfered, even by the appellate court particularly in a case where an issue is to be adjudicated on the basis of oral evidence, unless there are special features which have escaped the notice of the trial court or conclusion arrived at is based on improbability.
48. The argument that the plaintiff's denial in the rejoinder to the written statement does not constitute specific denial of averments made in paragraphs 15 & 16 of the written statements, cannot be accepted. The plaintiff in the pleadings and in her suit, apart from the pleadings that the land in dispute belong to late Thakur Raj Singh, clearly pleaded that Thakur Raj Singh and after his death, the plaintiffs are in possession being title holder. Plaintiffs' cause of action was that the UIT (JDA) in collusion with the private respondents started interfering with their possession.
In the written statement of the UIT (JDA), it was pleaded that the land in dispute was reserved as public park for the use of the residents of the colony and it vested in UIT (JDA). The defendants pleaded that the land in dispute was left for use as public park by the residents at the time of submitting layout plan, which was also the plea setup in the written statement of defendants No.2 & 3 and in reply, the plaintiffs clearly pleaded that the plaintiffs are the owners in title of the property in dispute. In rejoinder pleadings, it has been clearly denied that the land in dispute was reserved for public park for the use of the residents. The pleading of vesting of the disputed land in UIT (JDA) for being used as public park was also specifically denied. It was also denied that the land was ever transferred by Thakur Raj Singh to any other person or UIT (JDA), rather it was pleaded that the disputed (Downloaded on 03/03/2025 at 10:12:50 PM) (29 of 49) [SAC-33/1997] land always remained in possession of Thakur Raj Singh and, thereafter, the plaintiffs and the possession was never handed over to anyone. In para 7 of the rejoinder pleadings, it was clearly pleaded that Thakur Raj Singh never submitted any layout plan under his signatures nor declared the land available for public use. It was also denied that the disputed land, Well, "Dhore" & "Hoj"
were ever surrendered by Thakur Raj Singh. Thus, surrender of land in dispute by Thakur Raj Singh, any layout plan in that regard submitted by him along with letter dated 01.01.1958 showing land in dispute as public park, approval of the same, were all denied by the plaintiffs. Thus, the pleadings of the plaintiffs, as made in the plaint and rejoinder, if read as a whole, do constitute plea of specific and implied denial. The submission in that regard that the denial of some of the facts for want of knowledge should be treated as admission proceeds on a basis as if they were made in isolation. The pleadings of the parties have to be looked into in their totality to find out as to whether there is any admission or denial. If the plea of the plaintiffs is taken as a whole, the same completely negates the submission that denial of some of the facts for want of knowledge should be taken as admission. Once there is a clear plea that Thakur Raj Singh had not submitted any letter/application under his signatures, the same constitutes specific denial. Therefore, reliance placed on Muddasani Venkata Narsaiah (Dead) through Legal Representatives (Supra), Gian Chand and Brother and Another (Supra) and Jahuri Sah and Others (Supra) is misplaced on facts of the case.
49. In support of his submissions, learned Senior Counsel for the appellant while referring to documentary evidence adduced by the (Downloaded on 03/03/2025 at 10:12:50 PM) (30 of 49) [SAC-33/1997] parties in the present case, has referred to many documents, which were filed along with Application under Order 13 Rule 2 CPC in the other case (in the suit filed by Durga Shankar Purohit against Smt. Prem Kumari, which has given rise to Special Appeal Civil No. 51/1997). Thus, documents filed in other proceedings at various stages of suit and appeal cannot be looked into in support of appellants' case of it having proved its case. Therefore, we shall look into the pleadings, oral and documentary evidence led by the respective parties in the present case only and not the documents filed in other case.
50. Plaintiff- Prem Kumari, examined as PW-1, in her evidence has deposed that open land with fountain, which is lying vacant in front of Chomu House Kothi is of their ownership and in the Map Exhibit-1 has been marked as 'ka', 'kha', 'ga', 'gha'. She has further deposed that during period from 1956 to 1960-61, Thakur Raj Singh divided plots and later on he died on 03.05.1993 but the open land in the front, when plots were taken out, continued to be in their possession. She has also stated that in her knowledge, the land in dispute was neither surrendered in favour of those to whom the plots were allotted, nor it was handed over to UIT (JDA), nor sold. Though attempt was made to take possession at the time when the constructions of "Dhore" was sought to be demolished, protest was lodged and a telegram in that regard was also sent to UIT (JDA) vide Exhibit-2 and notice was given vide Exhibit-3. Thus, in her evidence, she clearly deposed to be the owner and in possession of the land in dispute coupled with the statement that it was neither sold to anyone, nor surrendered in favour of the residents of the colony to whom plots (Downloaded on 03/03/2025 at 10:12:50 PM) (31 of 49) [SAC-33/1997] were sold or nor was it surrendered or handed over to UIT (JDA). In her cross-examination, she has stated that in the lifetime of Thakur Raj Singh, the plan was not approved and she has not seen the map, if any, submitted for approval of the same though she states that she recognises signature of Thakur Raj Singh, she denied his signatures in Exhibit-A-1/1. She denies submission of Map, Exhibit-1 or passing of any map saying that she cannot say regarding the same. She further deposed that in the lifetime of Thakur Raj Singh, no map submitted to Chief Town Planner on 06.04.1961, was passed. She has also denied signatures of Thakur Raj Singh on Exhibit-A-2/1 by saying that she does not know whether letter dated 01.01.1958 was submitted by Thakur Raj Singh before the Municipal Commissioner, Municipal Council, Jaipur. She further deposed that earlier land was taken for Roadways Depot, which was situated behind the Kothi. In cross- examination also, there is no admission by the plaintiff regarding Thakur Raj Singh having submitted letter dated 01.01.1958 in the UIT (JDA), much less any admission that Map Exhibit-A-1/1 was ever submitted by Thakur Raj Singh along with letter dated 01.01.1958. She has specifically denied suggestion that the land in dispute was surrendered by Thakur Raj Singh for public or for public park and has further deposed that if the land had been surrendered, it would have been documented through registry. She clearly deposed that neither any registered document was executed, nor in any of the registered document, it has been recited that the land in dispute is for public park. She has emphatically state that the land belong to them. (Downloaded on 03/03/2025 at 10:12:50 PM)
(32 of 49) [SAC-33/1997]
51. The other witness of the plaintiffs, PW-2, Rao Surendra Pal Singh has also clearly deposed that the land in dispute was never surrendered by Thakur Raj Singh for the residents of the colony, nor was it surrendered or handed over to UIT or JDA, though an attempt was made to take over the possession of the land by the UIT. He has also deposed that later on, an attempt was made to demolish "Dhore", which was objected to. He sent a telegram Exhibit-2 followed by a legal notice Exhibit-3. He has deposed that the land is even now in possession of the plaintiffs. He denied that the land in dispute was left as public park. Further in his cross- examination, he has stated that he has seen the land in dispute vacant and is in possession of the plaintiffs. Thus, in the cross- examination, this witness has not admitted the case of the defendants that the land in dispute was ever surrendered by Thakur Raj Singh for park or ever surrendered or handed over to UIT as park.
52. PW-3, Surendra Singh has deposed that he knows that he had seen the land in dispute since last 25-30 years and the same is in possession of Chomu Thikana and after death of Thakur Raj Singh, the disputed land is in possession of Smt. Prem Kumari and he has never seen the possession of the land in dispute with the UIT or JDA. In his cross-examination also, there is nothing elicited to say that the land in dispute was either surrendered or was handed over to UIT or that it was in possession of any person other than the plaintiffs.
53. Since admittedly the land in dispute belong to Thakur Raj Singh, and the plea setup in the written statement by the defendants was that the land was surrendered by Thakur Raj (Downloaded on 03/03/2025 at 10:12:50 PM) (33 of 49) [SAC-33/1997] Singh while subdividing the area into plots and selling it to various persons including defendants-Durga Shanker and Shyam Sunder, the burden was clearly on the defendants to prove by clinching evidence the fact of surrender of the land in dispute or vesting of the same in UIT (JDA). The defendants examined Durganarayan, Inspector Jaipur Development Authority as DW-1/A. In his evidence, he stated that he is working in UIT since 1965 and the approved Map of Chomu House Colony with UIT is Exhibit-A-1/1 in which the disputed land marked as O, P, Q, R is the existing park, which vested in the Government and the same is not in possession of anyone. He states that once he had removed encroachment on the land. In his cross-examination, he elicited that he is not the Officer-in-Charge of the case and no letter of authority has been issued in his favour by the JDA, but Director (Land) sent him to give his evidence as witness. Though he deposed that the land in front of Chomu Kothi marked as O, P, Q, R to be park, but he admitted in his cross-examination that there is no document wherein, the land marked as Exahibit-A-1/1 is government land. He states that since the Map is approved, the land is government land. The evidence of this witness neither proves that the letter dated 01.01.1958 was submitted in the UIT (JDA) by Thakur Raj Singh, nor he has produced any record to prove this fact. There is nothing in his evidence to prove that Map Exhibit-A-1/1 was submitted by Thakur Raj Singh, much less along with letter dated 01.01.1958.
54. DW-2/A, Gordhan Sharma, XEN, Jaipur Development Authority, Jaipur stated that he was working in UIT and, thereafter, in JDA since 1973. He deposed that agreement Exhibit- (Downloaded on 03/03/2025 at 10:12:50 PM)
(34 of 49) [SAC-33/1997] A/2 was submitted in JDA and forms part of JDA record. Exhibit- A/2 is not an agreement on its bare perusal, it was submitted on 08.02.1960. This is a letter addressed to Chairman, Urban Improvement Board, Jaipur. It only mentions that a layout plan regarding development of the area (Chomu Bagh) is being submitted. The letter submitted on 08.02.1960 talks of development of roads, electricity and water connection facility and it does not refer to earlier letter dated 01.01.1958. His evidence does not prove that it was signed by Thakur Raj Singh. The letter mentions a plan attached with the same, but the plan annexed with letter dated 08.02.1960 Exhibit-A/2 has not been produced.
55. The evidence of this witness is that the map of the scheme, which was received after approval of the Chief Town Planner and approved by UIT, is Exhibit-A-1/1. He deposes that it was received along with letter Exhibit-A-1/2 of Chief Town Planner, which mentions to be a garden and, therefore, the public park shown as O, P, Q, R in Exhibit-A-1/1, upon approval, vested in JDA. On perusal of the Map Exhibit-A-1/1, it contains description of workshop of Rajasthan State Roadways. The existing garden (land in dispute) shown in the map has not been described as the land surrendered for public park. In the map, stables and other constructions have also been described as "existing". It also describes "existing swimming pool". The main Kothi has been described as main building with platform on its either side. Grassing land has also been mentioned. If the evidence of the witness is read along with Exhibit-A/2 and Exhibit-A-1/1, it does not prove that the Map Exhibit-A-1/1 was submitted along with so called letter dated 01.01.1958. In the evidence, he further (Downloaded on 03/03/2025 at 10:12:50 PM) (35 of 49) [SAC-33/1997] deposed that Thakur Raj Singh had submitted letter on 01.01.1958 in Nagar Parishad and certified copy of which has been produced as Annexure-A-3/1. However, this witness does not depose that Map Exhibit-A-1/1 was submitted along with letter dated 01.01.1958 Exhibit-A-3/1. The letter mentions enclouser of copy of layout plan in duplicate. The two official witnesses of JDA have not stated that letter was submitted by Thakur Raj Singh in their presence. They have also not stated as to which plan was annexed along with letter dated 01.01.1958, but according to them Map/Layout plan Exhibit-A-1/1 was submitted by Thakur Raj Singh, but they are not clear whether that map was submitted long with letter dated 01.01.1958 or with letter dated 08.02.1960.
56. According to the testimony of the aforesaid two witnesses of the defendants namely Durganarayan and Gordhan Sharma, they were not working in UIT either in 1958 or in 1960, therefore, their evidence does not prove that letters were submitted in their presence or were received by them upon being submitted by Thakur Raj Singh. On the basis of the records, they have deposed regarding letters dated 01.01.1958 and 08.02.1960 and Map Exhibit-A-1/1. However, their evidence lack in proving as to whether Map Exhibit-A-1/1 was submitted along with letters dated 01.01.1958 & 08.02.1960. It is extremely relevant to mention here that though in letter dated 01.01.1958, it is stated that existing portion of the garden with a wall has been left for the use of the residents of the colony, this statement of fact is conspicuously absent in letter dated 08.02.1960. According to the defendants' pleadings/evidence only one letter was submitted i.e. 01.01.1958. According to the evidence of Durganarayan and (Downloaded on 03/03/2025 at 10:12:50 PM) (36 of 49) [SAC-33/1997] Gordhan Sharma defendants' witnesses, who are employee of UIT/JDA, more than one letters were submitted, but by whom and at what point of time, is not proved from their evidence and the same is based only on record. Moreover, both the letters referred to two Layout plans annexed with those letters said to be written by Thakur Raj Singh, but Map Exhibit-A-1/1 was attached which letter, whether letter dated 01.01.1958 or 08.02.1960, has not been clearly stated. In fact, evidence of these two witnesses is only with regard to the Map Exhibit-A-1/1 and they have neither produced, much less proved any other Layout plan/Map.
57. DW-1/B, Durga Shankar Purohit has been examined as independent witness on whose evidence much emphasis has been laid to lay foundation to the case of the defendants. In his evidence, this witness has deposed that Thakur Raj Singh had developed Raj Nagar Colony and he had purchased Plot No.D-63. According to him, he further deposed that Thakur Raj Singh got approved sub-division of plots in the colony as per Map Exhibit-A- 1/1 and the land O, P, Q, R was reserved for public park. According to this witness, when he purchased plot, Map Exhibit-A- 1/1 was shown to him by Thakur Raj Singh that area/space for park and road has been left and only after having seen that Map Exhibit-A-1/1, he had purchased the plot. He deposed that on 01.01.1958, Thakur Raj Singh had submitted a letter to Nagar Parishad and another letter was also submitted by him in 1959. He deposed that he recognises the signature of Thakur Raj Singh on Exhibit-A/2 in which he has also signed as one of the witness and proved his signatures. He further deposed that letter also bears signatures of Durlabh Ram & Shyam Sunder Kothari. He (Downloaded on 03/03/2025 at 10:12:50 PM) (37 of 49) [SAC-33/1997] further deposed that all of them had signed the documents. Referring to Exhibit-A/2, he deposed that Thakur Raj Singh had signed in his presence stating that the same is to be submitted before the UIT (JDA). As per this witness, Exhibit-A/3 is the certified copy obtained by him from Nagar Parishad and the original was submitted by Thakur Raj Singh. According to him, the scheme was approved by Chief Town Planner in 1961. He has also produced letter of the Chief Town Planner, Exhibit-1/2. In his cross-examination, he has deposed that approval of sub-division of plot was after purchase of plot by him and that very sub- division, plan was shown earlier by Thakur Raj Singh, He has not produced the copy of sale deed through which he purchased the plot and stated that as other purchasers have submitted their sale deed and as all were printed containing the same language, therefore, he has not produced his sale deed. According to him, this witness purchased the plot from Thakur Raj Singh in December, 1957 and for the first time in 1957, Thakur Raj Singh submitted map with the UIT followed by subsequent submission of Map in 1958. He admitted that Thakur Raj Singh had not given any letter to him regarding park, but he had submitted letter with UIT, which was shown to him, which contained area specified for park. In his cross-examination, it is elicited that though before sale of plot to him by Thakur Raj Singh, the map of entire colony was given to him, but he has not produced the same because at that time, it was not approved.
58. Another defendant witness is Ratan Chand Bairagi, DW-2/B, whose plot is situated in D-61 in Map Exhibit-A-1/1 and O, P, Q, R is the public park for the common use of the residents and the (Downloaded on 03/03/2025 at 10:12:50 PM) (38 of 49) [SAC-33/1997] children. He deposed that when he purchased plot, he was informed that part marked as O, P, Q, R is left as public park. He deposed that when he purchased the plot, he had seen the map. According to this witness, he had purchased the plot in 1957. In his cross-examination, he deposed that his plot is situated in front of the park, but in the sale deed, there is no mention of the plot but the public park is mentioned as per the Layout plan.
59. Hanuman Prasad, another defendant witness DW-3/B stated that as per the Map Exhibit-A-1/1, the land marked as O, P, Q, R was reserved for park and is in use by public. He deposed that he purchased his plot in 1960 or 1961 and when he had seen the map, the land marked as O, P, Q, R was described as park and Thakur Raj Singh stated that the same would be used for the residents of the colony. In his cross-examination, he deposed that the Plot No.S-20 was purchased by him. He stated that he was informed that the land of the park is behind his plot. Thus, none of the defendants' witnesses have proved that letter dated 01.01.1958 was submitted by Thakur Raj Singh in their presence or that they had seen Thakur Raj Singh having submitted the letter. Neither the official witnesses, nor other witnesses/purchasers of the plots have deposed that while submitting letter dated 01.01.1958, Exhibit-A1/1 was the Map/Layout plan, which was submitted by Thakur Raj Singh. The evidence of the witnesses also do not prove which was the Map/Layout plan which is said to be submitted along with letters dated 01.01.1958 or 08.02.1960. Both the documents contain a note that map was submitted. However, which map was submitted, is not clear. Letter dated 01.01.1958, on which heavy (Downloaded on 03/03/2025 at 10:12:50 PM) (39 of 49) [SAC-33/1997] reliance has been placed, while DW-1/B, Durga Shanker Purohit stated that Exhibit-A/2 bears the signatures of Thakur Raj Singh, none of the witnesses have proved the signatures of Thakur Raj Singh on letter dated 01.01.1958. DW-2/A Gordhan Sharma, defendant witness has filed certified copy of letter dated 01.01.1958. However, whether it was submitted by Thakur Raj Singh along with Map/Layout plan Exhibit-A1/1 has not been proved by this witness. It is oral evidence of Durga Shankar Purohit and Ratan Chand Bairagi that Map/Layout plan Exhibit- A1/1 was shown to them by Thakur Raj Singh at the time of purchase of plots by them. Both these witnesses have stated that they purchased plots in 1957. Thus, according to these witnesses, Map/Layout Plan Exhibit-A1/1 was in existence on the date when they purchased the pleadings in 1957 and on this basis, they are deposing that this was the map which was submitted by Thakur Raj Singh along with letter dated 01.01.1958.
60. Exhibit-A/4, letter dated 30.01.1959 stated to have been submitted by Thakur Raj Singh to the Land Acquisition Officer, mentions regarding areas left for roads, parks and area of 2.75 acres is shown to have been left for park. The date of sale of 74 plots is shown from October, 1957 to 19.01.1959. The letter also refers to a map attached along with it. However, which scheme was submitted along with this letter, has not been produced by the defendants.
61. Letter dated 15.09.1960 Exhibit-A14, which is stated to be submitted by Thakur Raj Singh on 10.09.1960 to the Secretary, The Government of Rajasthan, Local Self Department, Jaipur is regarding approval of Map/Layout plan of Chomu House Garden, (Downloaded on 03/03/2025 at 10:12:50 PM) (40 of 49) [SAC-33/1997] Sardar Patel Marg, Jaipur. At the top of the letter, date mentioned is 15.09.1960, whereas, at the bottom it contains the date as 10.09.1960. This refers to letter dated 08.02.1960 (described as agreement). In this letter, there is no reference to letter dated 01.01.1958, but only to agreement dated 09.02.1960. Exhibit-A/2 relied upon by the defendants is letter dated 08.02.1960. None of the defendants' witnesses have stated as to on which date this letter was submitted. The letter refers to letter dated 08.02.1960 addressed to Chairman, Urban Improvement Board, Jaipur. Letter dated 08.02.1960 Exhibit-A/2 does not refer to any park, but it refers to Layout plan annexed with letter dated 08.02.1960. Importantly, this letter does not refer to earlier letter dated 01.01.1958, nor to Map/Layout Plan along with letter dated 01.01.1958. Letter dated 15.09.1960, Exhibit-A/14, refers to Layout Plan submitted along with letter dated 08.02.1960 and not letter dated 01.01.1958. None of the defendants' witnesses have proved by placing on record that which Layout Plan was submitted with letter dated 08.02.1960.
62. From the evidence of the defendants' witnesses, defendants have sought to build up a case that Map/Layout Plan Exhibit-A1/1 was submitted along with letter dated 01.01.1958, which is wholly unexplained and rather misleading.
63. At this stage, it would be relevant to give details regarding acquisition of part of land belong to Thakur Raj Singh which formed part of Chomu Compund.
64. Learned Appellate Court has recorded a specific finding with regard to the acquisition of part of land comprising in Chomu Compound, which belonged to Thakur Raj Singh. The said finding, (Downloaded on 03/03/2025 at 10:12:50 PM) (41 of 49) [SAC-33/1997] based on oral and documentary evidence on record, has not been assailed. It has been recorded that the letter of UIT addressed to the Land Acquisition Officer reveals that initially, the State Government had issued a notification under Section 4 of the Land Acquisition Act, 1953 (hereinafter referred to 'the Act of 1953') on 22.03.1957 for acquisition of entire 33 acers of land, but later on while issuing notification under Section 6 of the Act of 1953 on 05.10.1957, only 28.53 acers of land was included which was published in the official Gazette by the State on 28.11.1957. From the award, it is revealed that 4.47 acres of land belonging to Thakur Raj Singh, in which his house and disputed land was situated, was excluded from acquisition. This culminated in an award given by the Land Acquisition Officer on 14.12.1961, which is clear from the judgment dated 31.01.1969 passed in reference case under Section 18 of the Act of 1953, copy of which is annexed as Exhibit-A26. The Map/Layout Plan Exhibit-A1/1 shows the acquired land also as workshop of Rajasthan State Roadways. The Layout plan which is said to be approved on 06.04.1961 included the land which was already proposed for acquisition, the land which was part of acquisition. Learned First Appellate Court has taken into consideration this aspect of the matter to record a finding that the plea and evidence of the defendants that this map was submitted by Thakur Raj Singh on 01.01.1958 along with letter dated 01.01.1958 is an act of misleading, as this map was not even in existence on that day. Therefore, plea and evidence of the defendants that Exhibit-A1/1 was the map, which was submitted for approval along with letter dated 01.01.1958 is an afterthought case of the defendants. This plan having shown the (Downloaded on 03/03/2025 at 10:12:50 PM) (42 of 49) [SAC-33/1997] land earmarked for workshop of Rajasthan State Roadways was prepared after acquisition only, at the stage of final acquisition of the land and not before that. On the other hand, the Map Exhibit- A-1 submitted by the plaintiffs while showing existing garden does not record any land proposed to be acquired. In this map, a land behind the residential part is shown as children park. In Map Exhibit-A1/1, land of acquisition has been shown as workshop of Rajasthan State Roadways. The oral evidence of the defendants' witnesses that the existing garden which belonged to Thakur Raj Singh was proposed to be surrendered by him, as shown in Exhibit-A1/1 is, therefore, fails, as this map was prepared long after at the time of acquisition of land and not even in existence on 01.01.1958. Evidence in this regard has been considered earlier also by us and learned First Appellate Court has also recorded empathetic finding in this regard that there is no evidence that Map Exhibit-A1/1 was submitted by Thakur Raj Singh on 01.01.1958, nor is there any evidence of the same having been approved. Moreover, the finding of the learned First Appellate Court that the Depot of Roadways, which was not constructed before 1960 leads to conclusion that the said map was not even prepared on 01.01.1958. Therefore, learned First Appellate Court had rightly recorded conclusion that Map Exhibit- A1/1 was not submitted by Thakur Raj Singh in Nagar Palika and it has been falsely stated that it was submitted on 01.01.1958.
65. Defendants' witnesses, the purchasers have, therefore, falsely stated that Map Exhibit-A1/1 was the map shown to them at the time of purchase of plots by them in 1957 and that was submitted.
(Downloaded on 03/03/2025 at 10:12:50 PM)
(43 of 49) [SAC-33/1997]
66. The impugned judgment further records a finding by the learned First Appellate Court that defendants did not produce any notification that after acquisition of land, any subsequent notification excluding part of land under acquisition was published. Order was passed by the Court on 04.04.1997 directing the UIT to produce original records pertaining to Exhibit-A4, Exhibit-A15 to Exhibit-A20, Exhibit-A22, Exhibit-A2/1 & Exhibit-A1/2. It was also ordered to produce original records and files upon submission of letter dated 08.02.1960 by Thakur Raj Singh. From the records and file, which were produced, it was found that the file produced on 08.11.1996 do not pertain to proceedings drawn on submission of letter dated 08.02.1960, therefore, again an order was passed to produce original file, but those records and file were never produced. Therefore, adverse inference was drawn that the defendants failed to prove that the disputed land was surrendered by Thakur Raj Singh for public use.
67. Though defendants failed to prove the signatures of Thakur Raj Singh on letter dated 01.01.1958, his signature on letter dated 08.02.1960 has been proved. This letter dated 08.02.1960 does not refer to surrender of existing garden, but only gives details regarding development of roads, electricity and water supply system under the plan. We have already recorded that defendants, despite repeated orders, failed to produce the map which is said to be submitted along with letter dated 08.02.1960. Even the original records showing any map attached to letter dated 01.01.1958 or 08.02.1960 were never produced. The oral and documentary evidence that Exhibit-A1/1 was produced along with letter dated 01.01.1958, for detailed reasons recorded by (Downloaded on 03/03/2025 at 10:12:50 PM) (44 of 49) [SAC-33/1997] learned First Appellate Court and by us, leads to conclusion that the defendants failed to produce that plan, which is said to have been submitted along with letter dated 01.01.1958 and rather made an attempt to make out a case that Exibhit-A1/1 was submitted along with letter dated 01.01.1958 which is falsified, as the said map contains the details of the land which was acquired in 1960.
68. Exhibit-A/4, letter dated 30.01.1959 submitted by Thakur Raj Singh which give details of park, refers to the park which was shown in Exhibit-A/1 and not the existing garden, as claimed by the defendants.
Letter dated 11.04.1961 of the Chief Town Planner Exhibit- A/20 refers to layout plan dated 08.04.1961. The Chief Town Planner amongst other things proposed that the garden shown in the plan should become a public garden. This clear leads to inference that the map which was submitted before the UIT did not even show the existing garden which belonged to Thakur Raj Singh, as proposed for public garden otherwise there was no occasion for the Chief Town Planner to propose that the existing garden should be declared, as public garden. Further another letter Exhibit-A/21 of the Chief Town Planner clearly shows that the scheme was originally approved by Office on 08.04.1961 with the conditions of certain modifications. It shows that subsequently UIT resubmitted the scheme with some modifications vide letter dated 25.07.1961. It dealt with certain aspects relating to shops and proposed school. The Chief Town Planner, therefore, suggested that the Layout Plan, which was originally approved by him vide his letter dated 08.04.1961 alone be followed and (Downloaded on 03/03/2025 at 10:12:50 PM) (45 of 49) [SAC-33/1997] building plans be approved accordingly. This further strengthens the case of the plaintiffs and goes against the defendants' case that the existing garden which belonged to Thakur Raj Singh was never included in the Layout Plan proposed as public garden. Therefore, entire case of the defendants based on Map/Layout Plan Exhibit-A1/1 is demolished.
69. Even if we assume for argument sake that the letter dated 01.01.1958 was submitted by Thakur Raj Singh, he initially proposed to surrender a portion of the garden for the use of the residents in the manner and to the extent as per Layout Plan (which was never produced before the Court by the defendants), but later on, in view of on going land acquisition proceedings, Thakur Raj Singh submitted fresh letter on 08.02.1960 with another Layout Plan. Again this Layout Plan was also not submitted before this Court by the defendants. Thus, both the Layout Plans were suppressed and not produced by UIT before the Court during trial. From letter Exhibit-A/20 of the Chief Town Planner, it is clear that the existing land was never proposed to be surrendered for public garden because Exhibit-A/1which was a map initially prepared and which perhaps Thakur Raj Singh proposed for being accepted including the land which was subsequently acquired for Roadways. With on going land acquisition proceedings, Thakur Raj Singh submitted a fresh letter dated 08.02.1960 and, thus, even if we assume for argument sake that a letter was initially submitted on 01.01.1958, the same was given up and proposal for development was made as per the Layout Plan annexed with letter dated 08.02.1960, as Exhibit-A/2. The defendants' witnesses having admitted that they had signed (Downloaded on 03/03/2025 at 10:12:50 PM) (46 of 49) [SAC-33/1997] letter dated 08.02.1960 which did not contain any stipulation regarding surrender of existing garden for public garden leads to conclusion that defendants have failed to prove that, fresh Layout Plan Exhibit-A1/1 was submitted by Thakur Raj Singh along with letter dated 08.02.1960 proposing existing garden for being left for public park. It is to be noted that in Plan Exhibit-A/1, park was shown behind the residential house, but it appears that the land was also taken in land acquisition proceedings. That appears to be the reason why Thakur Raj Singh submitted fresh letter on 08.02.1960. As the UIT failed to produce the original record, the map attached with letter dated 01.01.1958 and map attached with letter dated 08.02.1960, nor even the original record of the proceedings, an adverse inference has to be drawn that Exhibit- A1/1 was not submitted for being approved along with letter dated 08.02.1960.
70. None of the communications made after 08.02.1960 reveals that Thakur Raj Singh ever proposed to surrender existing garden which was in front of his Kothi for being developed as public park or children park. The burden was heavy on the defendants to produce original record to prove this fact. Once defendants failed to prove that Exhibit-A1/1, was submitted along with letter dated 01.01.1958, the map does not by itself prove that the existing garden was proposed as public garden. Map Exhibit-A1/1 shows various plots and roads along with existing garden and other existing constructions. All these constructions continued to belong to Thakur Raj Singh. Approval of this plan on 06.04.1961 by the Chief Town Planner, as is evident from his letter Exhibit -A/21, (Downloaded on 03/03/2025 at 10:12:50 PM) (47 of 49) [SAC-33/1997] does not support the case of the defendants that the existing garden was surrendered for public use, rather it continued.
71. Entire case of the defendants rests on the plea that the land in dispute was surrendered by Thakur Raj Singh and, therefore, Thakur Raj Singh divested his title in respect of the disputed land (existing garden). Once the surrender of the land itself is not proved, in the absence of any proceedings drawn under the law for acquisition of land, vesting under the law also does not arise. Trust resolution dated 10.09.1965, Exhibit-A15 is not a proof of the fact that the existing garden (land in dispute) was surrendered and included in Layout Plan, divesting Thakur Raj Singh of his title and ownership in respect of the land in dispute.
72. Once the defendants have failed to prove surrender of land in dispute by Thakur Raj Singh, sub-division of plots by itself would not result in vesting of the land under the provisions of the Rules of 1964 and the only course legally permissible was to invoke Section 29 of the UIT Act. In fact, there is no evidence that any plan after 10.09.1965 was ever prepared as per the provisions of the Rules of 1964. No plan after 10.09.1965 was ever prepared as per the provisions of the Rules of 1964. The rule required that each and every part of the map, calculation of claim with regard to the area of road, facility and plots etc. is required to be given. The plans, which were said to have been approved earlier by Chief Town Planner and Municipal Engineer, were only draft plans on which certain suggestions were given, but what was the final plan which was prepared and the Layout Plan which was approved, was not produced, therefore, it cannot be said that final plan was ever approved or released by the UIT under the (Downloaded on 03/03/2025 at 10:12:50 PM) (48 of 49) [SAC-33/1997] provisions of Rule 28(1) of the Rules of 1964. We have already recorded that Exhibit-A1/1 shows position after acquisition of the land in 1955 and, therefore, it is wholly improbable that the same was presented by Thakur Raj Singh in 1958. The defendants tired to establish their case by linking plan Exhibit-A1/1 with letter dated 01.01.1958, which has rightly been recorded, as false and misleading by the learned First Appellate Court. The oral evidence of the defendants that this plan Exhibit-A1/1 was shown to them at the time of purchase of plots in 1957 is, therefore, false and has already been rejected.
73. Much reliance has been placed on the judgment/decree passed in the suit filed by Smt. Prem Kumari against Mahaveer and Ors., being members of the colony where JDA/UIT were not parties. That suit was confined only to the temple which was found to be existing prior to filing of the suit. The temple was a separate property marked in the plan submitted on 08.02.1960. The finding came to be recorded on the basis of the evidence that residents were performing worship in the temple, which led to dismissal of suit filed by Smt. Prem Kumari. There is nothing in the judgment/decree passed in the case of Smt. Prem Kumari against Mahaveer and Ors. that the land in dispute was also subject matter of that suit filed by Smt. Prem Kumari against Mahaveer. Neither any issue was framed, nor any finding was recorded that the disputed property in the present case was either surrendered by Thakur Raj Singh for the common use of the residents or that it vested in UIT by operation of law.
74. The judgment passed in the suit filed by Mohini Devi seeking to protect her possession over a part of open land does not help (Downloaded on 03/03/2025 at 10:12:50 PM) (49 of 49) [SAC-33/1997] the defendants as Smt. Prem Kumari was not a party in that suit, nor in that suit any issue was framed much less any finding recorded that the land in dispute in the present case was surrendered by Thakur Raj Singh.
75. The defendants having failed to prove that the land in dispute was ever surrendered by Thakur Raj Singh for public garden, stray evidence of certain activities on that land or that a pump is being operated providing water to the colony by itself, without any other reliable evidence, do not prove surrender of land in dispute by Thakur Raj Singh so as to become part of public garden divesting Thakur Raj Singh of his title over the land in dispute.
76. Learned Single Judge, as Appellate Court, has minutely examined the submissions and recorded its detailed findings with which we have concurred by independent examination of pleadings, oral and documentary evidence led by the parties and we are of the view that the findings recorded and conclusion arrived at by the learned single Judge does not warrant any interference.
77. Accordingly, the appeal is found to be devoid of merit and the same is dismissed, affirming the judgment passed by the learned Single Judge/First Appellate Court.
(BHUWAN GOYAL),J (MANINDRA MOHAN SHRIVASTAVA),CJ Jayesh/Sanjay Kumawat (Downloaded on 03/03/2025 at 10:12:50 PM) Powered by TCPDF (www.tcpdf.org)