Rajasthan High Court - Jodhpur
State Of Rajasthan vs Aman Yadav on 25 November, 2021
Author: Devendra Kachhawaha
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 67/2021
1. State Of Rajasthan, through District Collector, Sirohi
2. Municipal Board Aburoad, through its Executive Officer,
Minicipal Board, Abu Road, Sirohi (Raj.)
----Appellants/Defendants
Versus
Aman Yadav W/o Shri Sukhveer Singh Yadav, r/o Aburaod,
District Sirohi
----Respondent/plaintiff
For Appellant(s) : Mr. Rajesh Parihar
For Respondent(s) : Mr. Sandeep Saruparia
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Judgment Reserved on :- 17/11/2021 Pronounced on :- 25/11/2021 Appellants-Defendants have preferred this first appeal under Section 96 C.P.C. to challenge the impugned judgment and decree dated 19.11.2020 passed by Additional District Judge No.1, Aburoad, District Sirohi (for short, 'learned trial Court') in Civil Original Suit No.46/2009 (49/2009) (CIS No.876/2014) titled as "Smt. Aman Yadav Vs. State of Rajasthan & Anr.". Learned trial Court, by the impugned judgment and decree, decreed the suit filed by the respondent-plaintiff for declaration, permanent and mandatory injunction.
Succinctly stated, the facts of the case are that initially a suit for declaration, permanent and mandatory injunction was filed by respondent-plaintiff Smt. Aman Yadav against the State of (Downloaded on 25/11/2021 at 08:52:42 PM) (2 of 14) [CFA-67/2021] Rajasthan and Municipal Board, Aburoad on the ground that one property of plaintiff's ownership situated in Ward No.1 of Mouja Manpur, Aburoad and four corners of the property are mentioned at para no.1 of the plaint and khasra numbers of the property are mentioned in para no.2 of the plaint. The land was allotted in favour of plaintiff vide allotment letter dated 25.04.1959 for the purpose of installing and developing poultry and dairy farm and since then, the plaintiff is in possession over the land in question.
After allotment of the land in question in favour of the plaintiff, in the year 1961, the Gram Panchayat, Aakarabhatta proceeded to issue pattas in favour of the different persons over the same land then, the plaintiff had filed her objections on 29/31.10.1961 and reiterated the fact of her ownership over the land in question. Despite of that, pattas were issued by the concerned Gram Panchayat and the land in question was sold to one Himmat Singh. Thereafter, Himmat Singh had filed a civil suit claiming possession and mesne profits in relation to the land in question. The issues framed in that suit regarding possession and ownership were decided in favour of the present respondent- plaintiff. In the year 1962, the plaintiff had dug one well on the land in question, thereupon, the Gram Panchayat had issued a notice to the plaintiff on 26.05.1962 for being using the land in question for the purposes other than the conditions of allotment. In the year 1972, the Tehsildar, Abu Road had issued a letter to the plaintiff stating that the proposal for resuming the land in question in favour of the State Government but nothing happened thereafter. In the year 1977, a representative of the District (Downloaded on 25/11/2021 at 08:52:42 PM) (3 of 14) [CFA-67/2021] Collector had informed the plaintiff that the land in question is being used in violation of the conditions of allotment. Thereafter, the Tehsildar, Abu Road issued three notices under Section 91 of the Land Revenue Act and threatened the plaintiff for dispossessing her from the land in question. Despite all these proceedings, the plaintiff remained in possession over the land in question as its owner. Thereafter, in the years 1981 and 1984 Gram Panchayat, Aakarabhatta further issued the notices for dispossession of the plaintiff from the land in question but she disowned the order and claimed to be owner of land in question. In 1996, Gram Panchayat, Aakarabhatta again sent notice to vacate the possession and further Gram Panchayat, Aakarabhatta issued Pattas to some other persons. Proceedings of which has been challenged by Panchayat Prasar Officer, Panchayat Samiti, Aburoad before District Collector, Sirohi in the revision petition in which plaintiff was also made party without any reason and District Collector, Sirohi cancelled those Pattas vide order dated 03.11.1998 and the same has been challenged before the High Court and further challenged before Hon'ble Apex Court, in which, Hon'ble Apex Court on 14.08.2006 directed that possession to be taken back from the illegal allottees and thereafter allotment to be made through public auction. The plaint which was placed before Hon'ble Apex Court, one of the important fact was concealed by respondent No.1 that from 1959 plaintiff was having peaceful possession over the land in question without any obstruction as the owner. As the said fact was not placed before Hon'ble Apex Court for consideration, therefore no such finding was made by the Hon'ble Court in this regard. One of the another fact was also (Downloaded on 25/11/2021 at 08:52:42 PM) (4 of 14) [CFA-67/2021] concealed by respondent No.1 which is stated in the plaint that during pendency of the appeal before Hon'ble Apex Court, in the year 2006, land of khasra No.676 has been altered to 612 and same has been entered in the name of Municipal Board, Aburoad and the name of Gram Panchayat Aakarabhata has been deleted. The defendants gave threatening/warnings to the respondent- plaintiff to vacate the land in question many times by different means. Thereafter plaintiff-respondent had served a notice through her advocate under Section 80 CPC & Section 271 of the Rajasthan Municipal Act to the Appellants-defendants on 27.01.2009 which was duly received by the defendants but neither the compliance of that notice had been made nor any reply had been filed by the defendants.
In the circumstances, as mentioned above, the suit was filed with a prayer that a decree for declaration to this effect may be issued in favour of the plaintiff that plaintiff is only the original owner of the property, as mentioned in para Nos.1 & 2 of the plaint. It was also prayed that decree of permanent injunction may also be passed in favour of plaintiff; that appellant Nos.1 & 2 will not create any obstruction in peaceful possession of the property and not alienate, auction, allot and transfer the property in question by any other means. It was also prayed that if right of plaintiff was wrongly effected during pendency of the suit, the decree of mandatory injunction may also be passed in favour of plaintiff directing the defendants to restore the position, as it was existed before filing of the suit, upon the land in question, at the (Downloaded on 25/11/2021 at 08:52:42 PM) (5 of 14) [CFA-67/2021] cost of defendants and any other relief which is just and proper in the interest of justice may also be passed in favour of the plaintiff.
The suit was contested by the defendants/appellants by filing written submissions refuting all the allegations and averments as taken by the plaintiff.
On the basis of the pleadings of the parties, the learned Trial Court had framed the following issues:-
^^1& D;k oknh okni= dh pj.k la- 1 esa of.kZr prqfnZ"kk ds e/; fLFkr rFkk oknin la- 2 esa of.kZr iqjkus [kljk uacjksa dh Hkwfe dh Lokeh ?kksf'kr fd;s tkus dh vf/kdkjh gS\ &&oknh 2& D;k fopkjk/khu Hkwfe ds xzke iapk;r }kjk iV~Vs dkVs x;s Fks ftUgsa fujLr fd;k tkdj fooknk/khu Hkwfe o mlds vklikl dh vkcknh Hkwfe dh uhykeh dh dk;ZokbZ ekuuh; mPpre U;k;ky; ds vkns"k ds vuqlkj dh x;h gS vkSj uhykeh dh dk;ZokbZ iw.kZ ugha gqbZ gS\ &izfroknhx.k 3& D;k izfroknhx.k dks okn izLrqr djus ls iwoZ nks ekg dk uksfVl ugha fn;s tkus ls ;g okn iks'k.kh; ugha gS\ &&izfroknhx.k 4& vuqrks'k\^^ The rival parties led their evidence. The respondent-plaintiff with a view to substantiate her case herself appeared in the witness box as P.W.1 and also examined one more witness P.W.2 Rajiv Yadav besides tendering five documents, which were exhibited as Ex.P/1 to Ex.P/5 respectively.Contrary to the evidence of the respondent-plaintiff, statement of D.W.1 Tikamdan Charan, Executive Officer of Municipal Board, Aburoad recorded besides three documents, which were exhibited as Ex.D/1 to Ex.D/3. (Downloaded on 25/11/2021 at 08:52:42 PM)
(6 of 14) [CFA-67/2021]
Upon conclusion of the evidence, learned trial Court
proceeded to hear final arguments and decided Issue No.1 in favour of respondent-plaintiff as she was able to prove her possession and title ownership over the land in question and she was never dispossessed from the land in question. Thereafter, Issue No.2 was decided against the appellants-defendants as they were not able to prove that proceedings of auction in regard to disputed land was initiated as per direction given by Hon'ble Apex Court. Likewise Issue No.3, was also decided against the appellants-defendants as the notice under Section 80 CPC and 271 of the Rajasthan Municipal Act was served to the appellants- defendants on 27.01.2009 which was duly received by the appellants-defendants and the copy of notice was exhibited as Ex.5., but neither the compliance of that notice had been made nor any reply had been filed by the defendants.
After hearing both the parties, learned trial Court decreed the suit in favour of the plaintiff-respondent by judgment and decree passed by learned trial Court on 19.11.2020.
For ready reference, the order dated 19.11.2020 is reproduced herein as under:-
(Downloaded on 25/11/2021 at 08:52:42 PM)
(7 of 14) [CFA-67/2021]
^^&% vkns"k %&
55& vr% oknh;k Jhefr veu ;kno /keZifRu Jh lq[kohjflag ;kno] mez 77 o'kZ] fuoklh is"kk iksYVªh ,oa Ms;jh QkeZ] fuoklh vkcwjksM }kjk izfroknhx.k jktLFkku ljdkj tfj;s ftyk?kh"k egksn;] fljksgh ,oa uxjikfydk vkcwjksM tfj;s mlds vf/k"kk'kh vf/kdkjh uxjikfydk dk;kZy; vkcwjksM ds fo:) izLrqr ;g okn okLrs mn~?kks'k.kk ,oa LFkk;h fu'ks/kkKk Lohdkj dj fuEukuqlkj fMdzh fd;k tkrk gS & 1& fd bl vk"k; dh mn~?kks'k.kk cgd oknh;k fo:) izfroknhx.k tkjh dh tkrh gS fd oknh;k oknin la- 1 esa ntZ prqfnZ"kk ds e/; fLFkr rFkk oknin la- 2 esa of.kZr iqjkus [kljk uacjku dh Hkwfe dh tfj;s vkoaVu ,oa vkoaVu dh fnukad ls dCts/kkjh gksus ds vk/kkj ij Lokeh gSA 2& fd izfroknhx.k oknh;k ds oknxLr Hkwfe ds dCts] vf/kdkj esa fof/k fo:) izos"k ugha djsa ,oa mlesa {kfr dkfjr ugha djsa rFkk oknh;k dks vkoafVr Hkwfe dks fdlh vU; dks gLrkUrj.k] cspku] vkoaVu bR;kfn ugha djsa] uk gh oknh;k ds dCts esa gLr{ksi djsa vFkok fdlh ds ek/;e ls djkosaA okn O;; i{kdkjku~ viuk&viuk ogu djsaxsA mijksDrkuqlkj fMdzh ipkZ eqfrZc fd;k tkosA^^ To challenge the above mentioned decree, the present appeal has been filed by State of Rajasthan as well as Municipal Board, Aburoad.
Heard learned counsel for the appellants as well as learned counsel for the respondent at length and perused the impugned judgment and scanned the entire record of the case as well as case laws relied upon by both the sides.
I have given my thoughtful consideration to the arguments advanced at bar and on thorough examination of the evidence and (Downloaded on 25/11/2021 at 08:52:42 PM) (8 of 14) [CFA-67/2021] other materials on record in conjunction with the impugned judgment, the observations of this Court upon each issues framed by learned trial Court are given below.
So far as Issue No.1 is concerned, burden of this issue was upon the respondent-plaintiff and that issue was decided in favour of the respondent-plaintiff after a detail discussion by learned trial Court. In this regard, learned counsel for the appellants- defendants stated that the suit for adverse possession was filed by respondent-plaintiff before learned trial Court for the relief of declaration, permanent and mandatory injunction and it is an admitted position that land was initially allotted in favour of respondent-plaintiff for the purpose of poultry and dairy farm. The finding of learned trial Court starts from para 21 of the impugned judgment and defence taken by appellants-defendants is mentioned at para Nos. 22 & 26 of the impugned judgment. Earlier a revenue suit was filed by respondent-plaintiff which is registered as Suit No. 13/84 and the same was dismissed by ADM, Abuparvat. At para 2 of the plaint, document in regard allotment order was not filed by respondent-plaintiff and allotment was made in the year 1959 for ten years. Learned trial Court decreed the suit in favour of respondent-plaintiff on the ground that earlier suit was decreed in favour of respondent-plaintiff by competent Civil Court wherein Government was not a party to the earlier suit, therefore, finding of the judgment was not binding upon the appellants-defendants. In support of pleadings, statement of D.W.1 Tikamdan Charan, Executive Officer of Municipal Board, Aburoad has been recorded before learned trial Court and there is (Downloaded on 25/11/2021 at 08:52:42 PM) (9 of 14) [CFA-67/2021] no pleading regarding adverse possession, therefore, it was wrongly held by learned trial Court that on the basis of adverse possession, respondent-plaintiff is entitled for injunction.
P.W.1 Aman Yadav has repeated all the relevant facts in affidavit which has been given in examination-in-chief and even during cross-examination she has stated that :-
bl Hkwfe ij jgdj iksyVªh dk;Z dk O;olk; dj esa esjs ifjokj dk Hkj.k iks'k.k djrh gw¡A ------------------------------------------ ekSds ij rhu edku iksyVªh dk;Z o Ms;jh dk;Z o pkjk :e oxsjgk cus gq;s gSA ----------------------------------------- dqvk tehu feyus ds FkksM+s le; ckn gh [kqnok fn;k FkkA vt [kqn dgk fd eqfxZ;k xUnk ikuh ugha ihrh Fkh blfy, dqvk [kqnok;k FkkA dqvk [kqnokus dh Lohd`fr eSaus ugha yh Fkh esjs ifr us yh gks rks eq>s ;kn ughaA ---------------------------------------------------------- ;g lgh gS fd vkdjkHkV~Vk iapk;r us ges tehu ls gVus ds uksfVl fn, Fks vt[kqn dgk fd ysfdu ge vkt fnu rd ogka ls ugha gVs gS vkSj dCtk gekjk gh gSA -------------------------------------- ;g dguk xyr gS fd okn izLrqfr ls iwoZ eSaus fof/kd uksfVl izfroknhx.k dks ugha fn;k gksA ;g dguk xyr gS fd oknxzLr tehu ij gekjk dCtk mi;ksx miHkksx ugha gksA
----------------------------------- ;g dguk xyr gS fd eSaus oknxzLr Hkwfe ij voS/k vfrØe.k dj j[kk gks vt[kqn dgk fd eSa crkSj ekfyd dh gSfl;r dkfct gwaA Similarly, P.W.2 Rajiv Yadav has also made all relevant submissions in affidavit which has been given in examination-in- chief although he has admitted some facts during cross- examination which has been pointed out by learned counsel for the appellants during arguements and these facts are relevant to the legal notice required prior to the suit which can be replied by plaintiff herself and these are relevant to Issue No.3. In this way learned trial Court has rightly held that respondent-plaintiff has proved the issue in her favour by above mentioned evidence. In (Downloaded on 25/11/2021 at 08:52:42 PM) (10 of 14) [CFA-67/2021] this regard, sole witness Tikam Dan Charan examined as D.W.1 on behalf of appellants-defendants. He has admitted during cross- examination that :-
eSa ugh crk ldrk fd iksyVªh QkeZ o Ms;jh QkeZ ds dk;Z ls oknh;k o mlds ifjokj dk xqtkjk pyrk gSA ----------------------------------- ;g lgh gS fd gekjs tokcnkok esa oknh;k }kjk 1962 esa dqvk [kqnokus dh ckr fy[kh gqbZ gSA -------------------------- eSa ;g ugha crk ldrk fd okfn;k rc ls vius vki dks ekfyd dgrs gq,s [kqysvke vkt fnu rd fujUrj izfroknh dh tkudkjh esa dkfct pyh vk jgh gSA He has admitted that earlier after giving notice, proceeding of dispossession was held but it is admitted that no documents in regard these proceedings were filed before the Court and therefore, in the considered opinion of this Court, in absence of filing of relevant documents, learned trial Court was not wrong in not accepting the plea of the appellants-defendants. It is further relevant to mention here that he has admitted that earlier case which was decided before Hon'ble Apex Court, respondent-plaintiff was not party to that suit. The facts mentioned in para nine of his affidavit were not mentioned in written submissions. He further admitted that as per para nine, no document in regard to proceeding of dispossession in relation to respondent-plaintiff submitted on record and the house and other construction of the plaintiff are presently situated upon the present disputed land.
Per contra, learned counsel for the respondent stated that plaintiff has proved her case through oral evidence as well as plaintiff's case is admitted by D.W.1 Tikamdan Charan during cross-examination; plaintiff was in peaceful possession of the (Downloaded on 25/11/2021 at 08:52:42 PM) (11 of 14) [CFA-67/2021] disputed land since 1959 without any interruption and in the capacity of owner. Therefore, finding on issue No.1 is correct and no interference is required.
Having regard to the facts and circumstances of the case and the evidence mentioned above as well as the fact that pleading in regard to adverse possession made at para Nos. 11 & 14 of the plaint which was proved by P.W. 1 & P.W. 2 and as mentioned above was also accepted by D.W.1 during cross-examination and only notices were given by Gram Panchayat, Aakarabhatta and Tehsildar Aburoad, still plaintiff remained in possession over the disputed land without any interruption and she was never dispossessed from the property; no documentary evidence in regard to proceedings of dispossession was submitted before learned trial Court or before this Court; Hon'ble Apex Court issued direction in regard to the illegal allottees and there is no case that allotment in favour of the plaintiff is illegal. Therefore, in the opinion of this Court, learned trial Court has not committed any error while deciding Issue No.1 in favour of the respondent-plaintiff and finding of learned trial Court in regard to Issue No.1 is affirmed.
So far as Issue No.2 is concerned, burden of the issue was cast upon the appellants-defendants and after detail discussion, that issue was decided against the appellants-defendants. In this regard, learned counsel for the appellants-defendants stated that Issue No.2 was wrongly framed and burden of that issue was wrongly cast upon the appellants-defendants. This issue was (Downloaded on 25/11/2021 at 08:52:42 PM) (12 of 14) [CFA-67/2021] framed on the basis of pleadings in para 18 and 23 of the plaint. It is an admitted position that initially land was allotted for ten years and after ten years that allotment was not renewed in favour of respondent-plaintiff. Earlier when proceeding was pending before the Hon'ble Apex Court, respondent-plaintiff filed an application to implead her as a party but the same was dismissed by Hon'ble Apex Court.
Per contra, learned counsel for the respondent stated that it is wrong to say that Issue No.2 was wrongly framed by learned trial Court and burden was also wrongly cast upon the appellants- defendants because above issue was framed on the pleadings made by appellants-defendants at para Nos. 18 and 23 of the written statement and also the evidences laid by the parties. It is admitted position that auction proceeding was not completed.
Since, it is true that Issue No.2 was framed on the basis of pleadings of defendant at para Nos. 18 and 23 of the written statement, therefore, in the considered opinion of this Court, issue No.2 is correctly framed and burden is rightly cast upon the appellants-defendants. Therefore, learned trial Court has not committed any error in deciding Issue No.2 against the appellants- defendants and in favour of the respondent-plaintiff.
So far as Issue No.3 is concerned, burden of the issue was cast upon the appellants-defendants and after discussion that issue was decided against the appellants-defendants. In this regard, learned counsel for the appellants-defendants stated that (Downloaded on 25/11/2021 at 08:52:42 PM) (13 of 14) [CFA-67/2021] no notice was given prior to the filing of suit, therefore, suit is not maintainable. Despite of that, this issue was wrongly decided against the appellants-defendants.
Per contra, learned counsel for the respondent-plaintiff stated that notice was given prior to filing of the suit which is proved by Ex.5 and by evidence of P.W.1 and P.W. 2.
Having regard to the facts and circumstances of the case and the fact that at the one hand, P.W.1 and P.W.2 stated on oath in regard to notice (Ex.5) and so far as question of delivery of that notice is concerned, although no documentary evidence was submitted in this regard but it was admitted by D.W.1 that no reply to the notice Ex.5 was given by the appellants-defendants, which shows that notice Ex.5 was duly received by appellants-defendants prior to filing of suit, therefore, in opinion of this Court, learned trial Court has not committed any error while deciding Issue No.3 against the appellants-defendants.
I am principally agreed by the law laid down by Hon'ble Apex Court in case of A. Subramanian and Anr. Vs. R. Pannerselvam reported in (2021) 3 Supreme Court Cases 675 cited by learned counsel for the appellants but facts and circumstances of the present case are different from the facts of above case; in that case, the suit was filed only for permanent injunction whereas in the present case, the suit was filed for declaration, permanent and mandatory injunction. It was held that finding of High Court is (Downloaded on 25/11/2021 at 08:52:42 PM) (14 of 14) [CFA-67/2021] correct and, in result, appeal is dismissed. As per para 24 of the judgment Hon'ble Apex Court has held :-
"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires in absolute title."
The judgment cited by learned counsel for the respondent in case of Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors. reported in (2019) 8 Supreme Court Cases 729, it was held by Hon'ble Apex Court that such adverse possessee/possessory owner cannot only seek to protect his title as defendant in a suit but can also file suit for declaration of his title and for permanent injunction restraining defendant from interfering with his possession.
In view of the discussion foregoing, the findings of learned trial Court on Issue Nos.1, 2 & 3 are affirmed and the judgment and decree dated 19.11.2020 passed by Additional District Judge No.1, Aburoad, District Sirohi in Civil Original Suit No.46/2009 (49/2009) (CIS No.876/2014) titled as "Smt. Aman Yadav Vs. State of Rajasthan & Anr." is hereby affirmed.
Consequently, the appeal fails and same is hereby dismissed. Stay petition also stands disposed of.
In the circumstances of the case, the parties are directed to bear their own costs.
(DEVENDRA KACHHAWAHA),J 2-Bharti/-
(Downloaded on 25/11/2021 at 08:52:42 PM) Powered by TCPDF (www.tcpdf.org)