Rajasthan High Court - Jodhpur
Shankerlal vs Municipal Board Through Its Chairman on 26 August, 2020
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 238/2018
Shankerlal S/o Sh Maganlal Pancholi, Aged About 75 Years, R/o
Begu, Tehsil Begu, District Chittorgarh (Raj.)
----Appellant
Versus
Municipal Board Through Its Chairman, Municipal Board Begu,
Tehsil Begu, District Chittorgarh (Raj.)
----Respondent
For Appellant(s) : Mr. Salil Trivedi for
Mr. Sajjan Singh Rajpurohit.
For Respondent(s) :
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 26/08/2020 This second appeal under Section 100 CPC is directed against the judgment & decree dated 11/10/2012 passed by Civil Judge (Jr. Div.) Begu, District Chittorgarh and judgment & decree dated 6/9/2019 passed by Addl. District Judge No.2, Chittorgarh, whereby, the suit & appeal filed by the appellant have been dismissed, respectively.
The suit was filed for mandatory and permanent injunction with the averments that a plot being plot no.1 ad measuring 60 ft. x 40 ft. situated at Chothmata Mandir Colony at Begu, on southern side of the said plot is plot no.2 - owned by the plaintiff. The plot no.1 being in possession of the plaintiff for a long time, he is owner of the same and is entitled to continue with his possession as he has constructed a wall around it. The defendant - Municipal (Downloaded on 31/08/2020 at 08:30:30 PM) (2 of 7) [CSA-238/2018] Board was earlier Gram Panchayat and the plot nos.1 and 2 were purchased by the plaintiff in the year 1980 and 1/10 th of the auction amount was deposited. It was claimed that the plaintiff went for depositing the balance amount, however, the same could not be deposited, no notice was issued for the same. Further, no notice for vacating the plot was issued. Thereafter, other plots in the colony were auctioned, however, plot no.1 was not auctioned. It was alleged that as now value of the plot has increased, the defendant, on account of political rivalry, has placed a board at plot no.2 on 1/3/2006, which was meant for plot no.1. It is claimed that the plaintiff was prepared to deposit the balance amount of the auction, he was entitled for getting the sale deed registered in his favour and that he cannot be dispossessed without due process of law. It was prayed that as the plaintiff is in possession for a long time, the plot be not auctioned, he be not evicted.
A written statement was filed by the Municipal Board claiming that it was in possession of plot no.1; the plaintiff was not in possession of the said plot. Patta for land ad measuring 15 ft. x 60 ft. has been issued on 21/3/2001 to one Govind Purohit and rest of the land is in its possession. It was claimed that the plaintiff had deposited 1/10th amount of the auction amount in the year 1980 and the balance consideration was required to be deposited within a period of two months, however, no amount was deposited, therefore, the auction proceedings came to an end automatically. It was denied that the plaintiff was being dispossessed inasmuch as, the plot was in possession of the Municipal Board.
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(3 of 7) [CSA-238/2018] A replication was filed by the plaintiff denying the averments made in the written statement. It was alleged that the defendant did not follow the due process of law and that the plaintiff had sent the draft of balance amount on 1/2/2010, which has been returned back.
Based on the submissions of the parties, the trial court framed 08 issues. On behalf of the plaintiff, seven witnesses were examined and 21 documents were exhibited. On behalf of the defendant three witnesses were examined and 18 documents were exhibited. After hearing the parties, the trial court came to the conclusion that the plaintiff had failed to prove his ownership and possession over the plot and the defendant had proved the same of its transferee on part of the plot and its possession on rest of the plot. The trial court also came to the conclusion that the Municipal Board was free to deal with the plot which is in its possession and as the plaintiff was not in possession of the plot in question, he was not entitled to any relief.
The issue pertaining to non-impleadment of necessary party was decided in favour of the plaintiff and the trial court came to the conclusion that simple suit for injunction without seeking declaration was not maintainable and consequently dismissed the suit.
Feeling aggrieved, the appellant filed first appeal. The first appellate court after considering the issues raised again decided the appeal issue-wise and has reiterated the findings recorded by the trial court and consequently dismissed the appeal.
It is submitted by learned counsel for the appellant that the trial court was not justified in rejecting the suit filed by the (Downloaded on 31/08/2020 at 08:30:30 PM) (4 of 7) [CSA-238/2018] appellant. It was submitted that the appellant was in possession of the plot in question and as he had deposited the part consideration in the year 1980 and, thereafter no notice was issued to him for depositing the balance consideration, it cannot be claimed that the auction of the plot in plaintiff's favour came to an end. It was submitted that in fact Ex.D/18 produced by the respondent shows that a notice was issued in the year 1989 to the plaintiff, which though plaintiff has denied having received it, the same clearly reflects that the plea raised regarding auction having come to an end on account of non-deposit of balance consideration is baseless.
Further submissions were made that the finding regarding plaintiff being not in possession of the plot is incorrect inasmuch as the plaintiff had constructed a common wall on plot nos. 1 and 2, therefore, the determination made in this regard is also without any basis.
Submissions were made that as the plot in question has not been auctioned by the Municipal Board, the possession of the plaintiff deserves to be protected.
Reliance was placed on Municipal Board, Nohar vs. Rajkumar & Ors. : 2010 (1) RLW 29.
I have considered the submissions made by learned counsel for the appellant and have perused the material available on record.
The plaintiff filed the suit for injunction with the following reliefs:
"14- vr% izkFkZuk gSa fd oknh ds i{k esa ,oa izfroknh ds foi{k esa fuEu fMØh dh tkosa %& (Downloaded on 31/08/2020 at 08:30:30 PM) (5 of 7) [CSA-238/2018] ¼d½& dye l[a;k ,d esa of.kZr IykV oknh ds yEcs le; ls vkf/kiR; esa fujUrj miHkksx&mi;ksx esa gksus ls izfroknh fuykeh dh dk;Zokgh u djsa vkSj u gh eq>s IykWV ls csn[ky djsa bl gsrq vkns"kkRed LFkk;h fu'ks/kkKk ls izfroknh dks ikcan Qjek;k tkosaA ¼[k½& okn [kpZ odhy esgurkuk Hkh fnyk;k tkosaA ¼x½& vU; okn ftldk oknh vf/kdkjh gks fnyk;h tkosaA"
It is not in dispute that the auction of plot took place in the year 1980 and the plaintiff claims to have deposited 1/10 th of the consideration i.e. Rs.730/- and balance consideration has not been deposited by him, despite that the relief claimed is that on account of long possession the respondent Municipal Board should not auction the plot and his possession be protected. The only basis for claiming the relief has been that as the respondent did not issue any notice for deposit of the balance consideration, the amount could not be deposited.
There is no legal plea in the suit seeking to justify the protection of plaintiff's alleged possession and restraint against the respondent from auctioning the plot despite the plaintiff having not deposited the balance consideration. No plea of adverse possession has been raised, rightly so as the auction had taken place in the year 1980 and even as per the claim of the plaintiff, he was in possession till filing of the suit for only 26 years. Merely because the plaintiff had participated in the auction proceedings and had deposited part consideration cannot and does not confer any right on him to hold possession of the land in question.
Rule 263 of the Rajasthan Panchayat (General) Rules, 1961 and/or Rule 17(5) of the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 specifically provide for automatic (Downloaded on 31/08/2020 at 08:30:30 PM) (6 of 7) [CSA-238/2018] cancellation of the allotment of land on failure to deposit the balance consideration within the given time. As admittedly the plaintiff had failed to deposit the balance amount within the prescribed time, the allotment of plot to the plaintiff through auction stood cancelled automatically.
So far as the reliance placed on the judgment in the case of Municipal Board, Nohar (supra) is concerned, the said judgment pertains to the notification issued by the Government allowing allottees to deposit the balance consideration with interest @ 24%, which is not the case in the present appeal.
The submission made that as a notice (Ex.D/18) was issued in the year 1989, under the provisions relied on by the respondent, the plot did not stand cancelled, also has no substance inasmuch as even if the notice had been issued in the year 1989, the same being contrary to the statutory provisions cannot create any estoppel against the respondent. This is besides the fact that the plaintiff has denied having received the said notice and even if he has received, he has not followed the said notice and has not deposited the requisite amount.
So far as the submission pertaining to the claim of possession of the plaintiff over the plot in question is concerned, both the trial and appellate court have meticulously analyzed the oral and documentary evidence led by the parties and have categorically come to the conclusion that the plaintiff has failed to prove his possession over the plot in question.
Learned counsel for the appellant has failed to point out any perversity in the findings recorded by the two courts below and as such the plea raised in this regard also has no substance. (Downloaded on 31/08/2020 at 08:30:30 PM)
(7 of 7) [CSA-238/2018] Both the courts below were also justified in coming to the conclusion that simple suit for injunction without seeking declaration in the circumstances of the present case was not maintainable, regarding which learned counsel for the appellant could not make any credible submission.
In view of the above discussion, the concurrent findings recorded by both the courts below on all the issues do not give rise to any substantial question of law. The appeal has no substance and the same is, therefore, dismissed.
(ARUN BHANSALI),J 8-baweja/-
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