Rajasthan High Court - Jaipur
Durga Shankar Purohit Thr Lr vs Thkurani Prem Kumari And Ors ... 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. 51/1997
Durga Shankar S/o Shri Birdhi Chand Purohit, R/o D-63, Chomu
House Colony, Sardar Patel Marg, C-Scheme, Jaipur- now
substituted by Secretary:-
1/1. Shri Dinesh Shah S/o Shri Radhakrishnaji, aged 50 years,
Resident of D-37, Chomu House, C-Scheme, Jaipur.
----Plaintiff/Appellant
Versus
1. Thakurani Smt. Prem Kumari W/o Late Thakur Raj Singh R/o
Plot No. A-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)
3. Abdul Sattar S/o Shri Mohammad Kasim, R/o Tazia House,
Maliyon Ki Gail, Chandpole Bazar, Jaipur (died)
4. Jaipur Development Authority through its Commissioner,
Jaiupr.
5. Nanga S/o Badri.
6. Badri S/o Bhoorji (Died)
Both by caste Barber R/o Chomu Kothi, Resident Road, Jaipur
----Defendants/Respondents
For Appellant(s) : Mr. N.K. Maloo, Senior Advocate assisted by Mr. Pratyush Sharma Mr. Amit Kuri, Mr. Shivam Mishra For Respondent(s) : Mr. Anil Mehta, Senior Advocate assisted by Mr. Yashodhar Pandey & Mr. Ranvijay Singh Ms. Suruchi Kasliwal, through V.C. (Downloaded on 03/03/2025 at 10:12:56 PM) (2 of 25) HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE BHUWAN GOYAL (THROUGH V.C.) Judgment PRONOUNCED ON: 27/02/2025 (PER HON'BLE THE CHIEF JUSTICE):
1. This appeal under Section 18 of the Rajasthan High Court Ordinance 1949 is directed against the judgment/decree dated 29.05.1997 passed by the learned first appellate Court whereby, the appeal of the appellants has been dismissed and the judgment/decree of the trial Court has been affirmed, dismissing the suit of the appellant.
2. The appellants filed a civil suit no. 165/1967 [30/1995] on 17.03.1967 in the Court of Munsif (East) Jaipur City. Appellants/plaintiffs filed suit under Order 1 Rule 8 CPC in the nature of representative suit on the pleadings inter alia that Thakur Raj Singh, husband of defendant-Prem Kumari was Jagirdar of Thikana Chomu known as Chomu Compound/Chomu Bagh. Thakur Raj Singh intended to develop a new colony in the Chomu Bagh land and with this intention, he submitted map and layout plan before the Nagar Palika, Jaipur and Urban Development Trust, Jaipur. The assurance in writing was submitted that towards development of colony, proper arrangements for road, electricity, water connection and children park would be suitably made by surrendering land for such common use. On submission of such layout plan and assurance, permission for development of colony was sought. It was further pleaded that on the basis of the application and the map/layout plan submitted by (Downloaded on 03/03/2025 at 10:12:56 PM) (3 of 25) Thakur Raj Singh, Municipality and UIT allowed construction and development with slight changes and modifications in the proposed map regarding width of the road. It was further pleaded that the portion of land described A, B, C, D, Circle X and Triangle Y in the map appended with the plaint were surrendered for public use and for the facility of the colony. According to the plaintiffs, in the map, A, B, C, D was proposed to be surrendered for development of garden, whereas, Circle X which was proposed to be surrendered for common use, comprised of a Shiv temple standing on a square shaped platform. Further pleading was that Thakur Raj Singh gave such assurance of development of colony and on such assurance, sold out plots to plaintiffs and other persons that area A, B, C, D, Circle X and Triangle Y and well, fountain, "hauj", fencing, temple and open spaces shall remain available for open use and the same will not be transferred. It was also assured that proper development of the colony by providing electricity, water facility, roads, children park would also be done. This was also described in the sale deeds of the plaintiffs and other purchasers. On such assurance, plaintiffs purchased plots No.D63 and D41. After Thakur Raj Singh died on 05.03.1963, the legal representatives-defendants no. 1 and 2, against the scheme of development of the colony and the written and oral assurance held out by Thakur Raj Singh with regard to land in dispute, have sold a part of the land comprised in Circle X and Triangle Y, as shown in the map, to defendants no. 3, 5 and 6 and are attempting to dispose off other part of the disputed land comprised in the area A, B, C, D, Circle X and Triangle Y. On such pleadings, plaintiffs prayed for declaration that the sale deed (Downloaded on 03/03/2025 at 10:12:56 PM) (4 of 25) executed on 06.04.1966 in favour of defendants no. 3, 5 and 6 be declared as illegal and inoperative. Plaintiffs also prayed for decree of permanent injunction that defendants no. 1 and 2 be restrained from changing the nature of the land in dispute or altering the land in dispute, in any manner, and they be also restrained from transferring land in dispute to third parties. Plaintiffs also prayed for mandatory injunction for development of the colony as per the approved scheme and make necessary arrangements for roads, children park, water, electricity connection etc.
3. Later on, in response to the defendants application for providing proper particulars and facts of the case, plaintiffs further pleaded that Thakur Raj Singh had submitted an application on 01.01.1958 before the Nagar Palika, Jaipur and an application dated 08.02.1960 before UIT, Jaiur. The map was approved on 08.04.1961 by UIT which was accepted by Nagar Palika on 26.03.1963. The plaintiffs and other persons, at the time of sale of land to them by Thakur Raj Singh, were also given assurance for development of the area as per the approved plan.
4. Prem Kumari defendant no. 1 and Smt. Shakuntala Kumari defendant no. 2 filed written submission and denied the plaintiffs' case that Thakur Raj Singh had developed colony in Chomu Bagh, as claimed by the plaintiffs, or ever submitted any undertaking before the Nagar Palika, Jaipur or UIT, as claimed by the plaintiffs. It was denied that Thakur Raj Singh had ever submitted application on 01.01.1958 to Nagar Palika, Jaipur or application dated 08.02.1960 before the UIT along with any map and layout plan. It was also denied that Nagar Palika, Jaipur granted any sanction on 26.03.1963 or 28.04.1961. Defendants stated that the (Downloaded on 03/03/2025 at 10:12:56 PM) (5 of 25) map which has been filed, appended with the plaint, was not submitted by Thakur Raj Singh as it does not contain his signature nor it contains any changes made with regard to the width of the road. Defendants further pleaded that insofar as their knowledge goes, Thakur Raj Singh never proposed to surrender disputed land in the area A, B, C, D, Circle X or Triangle Y for common use of the residents of the colony nor any application in writing was submitted nor any written assurance was given to Nagar Palika or UIT that those lands will not be transferred to third parties. It was also denied that the scheme was approved as per written assurance but it was further pleaded that the land shown in A, B, C, D is not a park, though existence of well and water pipeline was admitted. It was further pleaded that without the permission of the defendants, some of the residents have unauthorizedly entered into possession of the land described in Circle X and raised a platform, in respect of which a suit has been filed and pending. It was also denied that late Thakur Raj Singh had held out assurance to the purchasers of the plots that area A, B, C, D, Circle X and Triangle Y and the well, fountain, "hauj", fencing and open spaces shall be preserved and not transferred to any other person. In the sale deed, no such agreement or assurance was given by Thakur Raj Singh and if any such claim is made, the same is not binding on the defendants. The defendants, being the legal representatives of deceased Thakur Raj Singh, have all the title in respect of the disputed land and are, therefore, entitled to sell the land to defendants no. 3, 5 and 6.
5. Defendants no. 5 and 6 filed their separate written statement and denied the plaintiffs' claim on the pleadings that valid title was (Downloaded on 03/03/2025 at 10:12:56 PM) (6 of 25) transferred in their favour by the defendants no. 1 and 2. Thakur Raj Singh had never held out any assurance or entered into any agreement that the land in dispute would be available for public use.
6. On the basis of the pleadings of the parties, learned trial Court framed as many as 8 issues amongst other issues.
7. Out of the issues farmed, issue no. 2 was whether Thakur Raj Singh had given assurance to Nagar Palika and UIT for providing facilities and leaving open area for public use, as pleaded in para 4 of the plaint. Issue no. 3 framed was whether Thakur Raj Singh while selling out plots had given written assurance that the land comprised in area A, B, C, D, Circle X and Triangle Y would not be handed over to anyone. An issue was also framed as to whether defendants no. 1 and 2 had right to execute sale deed dated 06.09.1966 in favour of the defendants no. 3, 5 and 6 and whether those sale deeds are liable to be declared illegal. The issues with regard to mis-joinder of parties and improper valuation were also framed.
8. While the suit was being tried and the evidence of the plaintiffs was over and the defendants evidence was in progress, the records of the civil suit were transferred to the Court of Additional District and Sessions Judge No. 6, Jaipur. At this stage, it is relevant to mention that later on, Prem Kumari and another had filed a suit against Durga Shanker and Shyam Sundar, as also JDA, seeking decree of permanent injunction in respect of the land comprised in area A, B, C, D described in the plaint appended with the suit of appellant Durga Shanker. Thus, as far as the land A, B, C, D is concerned, the same was subject matter of the suit filed by (Downloaded on 03/03/2025 at 10:12:56 PM) (7 of 25) Prem Kumari against JDA, Durga Shanker and others. Though that suit was filed subsequent in point of time, the suit was tried and decided first. The suit of Prem Kumari was dismissed, aggrieved by which Prem Kumari preferred first appeal registered as S.B. Civil First Appeal No. 73/1991. The Appellate Court having been apprised of the fact that records of the suit filed by Durga Shanker against Prem Kumari were summoned by the ADJ while trying the suit of Prem Kumari and trial was not completed, sent the entire records to the Court of ADJ for deciding the suit filed by plaintiff Durga Shanker. The trial of the suit filed by the appellant Durga Shanker Purohit was completed and vide judgment/decree dated 29.04.1995, the suit was dismissed. Aggrieved by the same, Durga Shanker filed S.B. Civil First Appeal registered as S.B. Civil First Appeal No.109/1995. That appeal having been dismissed, vide impugned judgment/decree dated 29.05.1997, present intra Court appeal has been filed. Even though the land comprised in area A, B, C, D as described in the plaint of the suit filed by Durga Shanker Purohit and land in dispute for being subject matter of suit filed by Prem Kumari against Durga Shanker Purohit and JDA were one and the same, both the suits were tried separately. Though the suit by Prem Kumari was filed subsequent in point of time, the same was tried earlier. The parties led their oral and documentary evidence in the suit of Prem Kumari and another. After the order passed by the first appellate Court in the appeal filed by Prem Kumari and another, the suit filed by appellant/plaintiff-Durga Shanker was also tried and the parties led their oral and documentary evidence. Thus, even though the subject matter of both the suits, except land described in Circle X (Downloaded on 03/03/2025 at 10:12:56 PM) (8 of 25) and Triangle Y in the plaint of the suit filed by Durga Shanker, were one and the same as in the suit of Prem Kumari, the two suits were tried separately giving rise to two different first appeals and then to two special appeals. Thus, both the appeals were heard analogously.
9. In the present appeal filed by Durga Shanker Purohit, learned senior counsel appearing for the appellant made following submissions.
9.1 In the written statement filed by Prem Kumari and another, all material averments have been denied for want of knowledge and as there is no specific denial, the learned Courts below have recorded their finding by trying suit and by framing issues without taking into consideration the consequences of denial for want of knowledge and there being no specific denial as laid down in 2013 (2) SCC 606, AIR 1967 SC 109.
9.2 That the plaintiffs, by leading cogent, oral and documentary evidence, have proved specific plea and the case set up in the suit that Exhibit 1- Plan was duly approved by the competent authority. Plaintiffs have also proved letter dated 01.01.1958- Exhibit 3 written by Thakur Raj Singh along with the layout plan submitted to Municipal Council, Jaipur for approval. From original file produced by Nagar Nigam during trial, it is proved that existing portion of the garden with a well was left for use of the residents of the colony and the Municipal Council may declare streets and gardens as public lands.
9.3 Certified copy of the application/undertaking dated 08.02.1960 Exhibit-P 4 with layout plan submitted by Thakur Raj Singh for approval on stamp paper to UIT has also been proved. (Downloaded on 03/03/2025 at 10:12:56 PM)
(9 of 25) Denial for want of knowledge of application dated 01.01.1958 and agreement/undertaking dated 08.02.1960 is not a specific denial. Thus it was not necessary to prove those documents, therefore, the learned Single Judge while deciding appeal and the learned trial Court ought to have held the case of the plaintiffs in that regard, as proved.
9.4 Referring to the letter dated 10.09.1960-Exhibit-6 submitted by Thakur Raj Singh as reminder for approval of layout plan submitted on 08.02.1960 and evidence of PW-1-Durga Shanker, it has been argued that in the absence of effective cross- examination to controvert submission of application dated 01.01.1958 and agreement dated 08.02.1960, these facts were proved which have been ignored and incorrect finding of fact has been recorded that the plaintiffs have failed to prove that land A, B, C, D was left for public park.
9.5 Referring to letter dated 30.07.1966 and Exhibit-12 and 13, it is argued that these documents prove that in the layout plan, the garden, Shiv temple and Circle were left for common use upon surrender by Thakur Raj Singh.
9.6 After the records of the suit filed by the appellants were returned to the Court of ADJ for completion of the trial, the appellants filed certified copies of relevant documents along with the application under Order 13 Rule 2 CPC but the application was illegally rejected by the learned trial Court. The learned first appellate Court also illegally rejected the grounds on which the rejection of the application under Order 13 Rule 2 CPC was challenged.
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(10 of 25) 9.7 Referring to the documents submitted along with the two applications under Order 13 Rule 2 CPC dated 09.03.1995 and 13.03.1995, it is argued that these documentary evidence prove that Thakur Raj Singh submitted application on 01.01.1958 followed by agreement dated 08.02.1960 along with the layout plan and written assurance that the lands in dispute were left for common use of the residents of the colony. While recording finding, material documents have been ignored from consideration as also ignoring the provisions contained in Section 274 of the Rajasthan Municipalities Act, 1959, Section 99 of the Urban Improvement Act and Section 80 of the JDA Act.
9.8 The suit filed by Prem Kumari against Mahaveer Prasad was dismissed and appeal was also dismissed. The layout plan in the present case as also in the case of Prem Kumari Vs. Mahaveer Prasad was one and the same. Therefore, the plaintiffs were entitled to decree as prayed for. Layout plan as submitted by Thakur Raj Singh was approved by UIT vide resolution dated 10.09.1965 as required under Section 73A, 74 of the Urban Improvement Act, 1959 read with Rajasthan Urban Areas (Sub- Division, Reconstitution and Improvement of Plots) Rules, 1964. 9.9 Relying upon evidence of PW 1-Durga Shanker, PW 2-Shyam Sundar, PW 3-Parasaram Sharma, PW 4-Hari Singh, PW 5-Ratan Chand Bairathi, PW 6- Radhey Shyam, PW 7- Durga Lal and as also what has been deposed in the cross-examination by DW 1- Thakurani Prem Kumari, DW 3-Surendra Pal Singh, DW 4-Arun Puri, it has been submitted that the plaintiffs proved its case as pleaded in the plaint and, therefore, the suit was liable to be decreed. As it is a case of implied surrender of lands in dispute by (Downloaded on 03/03/2025 at 10:12:56 PM) (11 of 25) Thakur Raj Singh, while submitting application and layout plan which was duly approved, the fact of approval of sub division plan resulted in vesting the lands in dispute in local authority. Reliance has been placed on 2004 (5) SCC 182, AIR 1986 MP 134, AIR 1971 CAL 407, 2011 WLC 91, 2007 RLW 3214 and 2016 SCC OL Madras 21937.
10. On the other hand, learned counsel for the respondents- defendants Prem Kumari and another made following submissions:
10.1 The plaint averments made by the plaintiff were denied by the defendants and the defendants clearly stated that Thakur Raj Singh never submitted any application nor surrendered the land in dispute for common use of the purchasers of plot. The defendants denied submission of application, layout, approval and surrender, as pleaded by the plaintiffs. Therefore, it is a case of denial and the plaintiffs are not entitled to any decree on the ground of so called admission.
10.2 The plaintiffs have failed to prove their case as pleaded in the plaint. Though in para 4 of the plaint, it has been pleaded that Thakur Raj Singh submitted map/development scheme/layout for proposed colony before the Municipality and UIT and gave written assurance of surrendering the adequate land for common use and open spaces and thereby sought permission for development, however, plaintiff has failed to produce any written assurance in the Court. In para no. 6 of the plaint, the plaintiff pleaded that as per the approved map, area A, B, C, D, Circle X and Triangle Y was proposed to be left open for common use and facility of the residents of the colony and written assurance was given that those lands shall not be transferred to third parties but no such (Downloaded on 03/03/2025 at 10:12:56 PM) (12 of 25) documentary evidence in the form of written assurance was filed by the plaintiff. Therefore, the plaintiff failed to prove his case, as pleaded. The plaintiff's case stands on written applications and assurances, which were neither filed nor proved. 10.3 The plaintiff failed to lead by way of documentary evidence, the so called layout plan said to be submitted by Thakur Raj Singh wherein, the disputed land has been shown as spaces for common use.
10.4 The plaintiff failed to prove that the map submitted by him were submitted by Thakur Raj Singh in the Nagar Palika and UIT.
None of the plaintiff's witnesses have deposed that the map relied upon by the plaintiff was submitted by Thakur Raj Singh in their presence in the office of either Nagar Palika, Municipality or UIT, much less, the date on which the same was submitted. 10.5 The plaintiff's case that maps Exhibit A1 and A2 were submitted by Thakur Raj Singh and approved by UIT is not supported by any evidence. The map submitted by the plaintiff show the land of workshop of Rajasthan Roadways and a case is sought to be made out that the same was submitted by Thakur Raj Singh in 1958 and was also shown to the plaintiff at the time of sale of plots, which is false and misleading inasmuch as the acquisition proceedings were drawn and concluded by passing of award at a later point of time. The map shows area of workshop which was not even in existence in the year 1958. Therefore, the entire case of the plaintiff is based on false and misleading documents which were fabricated and filed before the Court. 10.6 The plaintiff's case, as pleaded in para no. 8 of the plaint, that plots were sold to the plaintiff and other persons by Thakur (Downloaded on 03/03/2025 at 10:12:56 PM) (13 of 25) Raj Singh by registered sale deed on the assurance that disputed land shown as A, B, C, D, Circle X and Triangle Y with well, fountain, "hauj", fencing and temple and other open spaces will remain as it is and would not be sold, is not supported from any documentary evidence. The plaintiffs did not produce their respective sale deeds regarding purchase of plot from Thakur Raj Singh prior to 01.01.1958 and no such recital regarding written assurance was made. The sale deeds were submitted as rebuttal evidence to avoid adverse inference being drawn against them. Though pleaded in para no. 8 that while selling the plots, recital to the effect that the lands in dispute will not be sold out to anyone but no such evidence has been led by the plaintiff. 10.7 Even though the plaintiff had impleaded UIT, Jaipur as one of the parties, they neither appeared nor filed any written statement and were proceeded ex parte. Neither UIT led any evidence nor the plaintiff made any prayer for production of records containing the map relied upon by the plaintiff. The plaintiff witness PW 1- Durga Shankar, in his evidence, has deposed that Thakur Raj Singh stated in the month of August/September, 1957 regarding sale of plots and layout was also shown which was submitted by him alongwith his application dated 01.01.1958 before the Municipal Council but has stated that when the map of the scheme was submitted, is known to Thakur Raj Singh only, meaning thereby that the plaintiff-Durga Shankar did not have any personal knowledge. He has admitted in his evidence that the map which was prepared and shown to PW1-Durga Shankar has been filed in the case and except this, no other map was prepared by Thakur Raj Singh. There were only four maps Exhibit 1, Exhibit 2, Exhibit (Downloaded on 03/03/2025 at 10:12:56 PM) (14 of 25) A and Exhibit 12 on record. The map which has been subsequently submitted and marked as Exhibit A1 was thus, not in existence, at the time of division of plots. The witness has not deposed details and conditions regarding Shiv temple and children park whether it was stated or not in the sale deed.
10.8 The learned trial Court rightly rejected application under Order 13 Rule 2 CPC as also application under Order 6 Rule 17 CPC, as the plaintiff sought to build a new case, inconsistent with the case as pleaded by him. Revision filed against rejection of application under Order 13 Rule 2 CPC was also rejected by this Court.
10.9 As it is an admitted position on the pleadings of the parties that the land originally belonged to Thakur Raj Singh, the burden to prove that the land was surrendered by Thakur Raj Singh was on the plaintiff. It was the burden of the plaintiff to prove which layout plan was submitted by Thakur Raj Singh in the Municipality. Since the case of the plaintiff rests on the layout plan said to have been submitted by Thakur Raj Singh with the Municipality, no oral evidence to the exclusion of the documentary evidence as pleaded was admissible and the proof of fact regarding Thakur Raj Singh having submitted the layout plan proposing to surrender disputed land could be proved only by production of the said layout plan and not otherwise.
10.10 Out of total land owned by Thakur Raj Singh, a part of land was acquired leaving behind 4.47 acres of land comprising the house and disputed land of Thakur Raj Singh. Since the notification under Section 6 of the Land Acquisition Act was issued on 05.10.1957, it is wholly improbable that Thakur Raj Singh (Downloaded on 03/03/2025 at 10:12:56 PM) (15 of 25) would submit a map on 01.01.1958 for development of colony by submitting map relied upon by the plaintiff. In any case, once a part of land was acquired, it was legally not permissible to approve the layout of entire 33 acres of land.
10.11 The judgment/decree in the case of Prem Kumari Vs. Mahaveer Prasad is in relation to Shiv temple and did not involve the subject matter of the land in dispute in the present suit. Therefore, the plaintiff is not entitled to any decree on the basis of judgment/decree passed in the case of Prem Kumari Vs. Mahaveer Prasad.
10.12 The judgment/decree passed in the suit filed by Mohini Devi against UIT is not binding on the defendant Prem Kumari as she was not party in that suit.
10.13 Only on the basis that the well situated in the disputed garden was being used for supply of water, is not an evidence of surrender of land.
10.14 The so called approval by UIT vide resolution dated 10.09.1965 was not with regard to any layout plan and map submitted by Thakur Raj Singh surrendering land in dispute for common use. In the absence of proof of submission of map and layout plan relied upon by the plaintiff, there is neither surrender nor vesting upon sub-division of plots under the provisions of the UIT Act or Rajasthan Urban Areas (Sub-division, Re-constitution and Improvements of Plots) Rules, 1964. The judgment/decree passed by the first appellate Court is based on minute and meticulous examination of the oral and documentary evidence led by the parties and it is a case of concurrent finding by the learned (Downloaded on 03/03/2025 at 10:12:56 PM) (16 of 25) trial Court as well as learned first appellate Court and, therefore, no interference is warranted in the intra Court appeal.
11. One of the submissions of learned counsel for the appellant is that there is no specific denial of pleadings made by the plaintiff and, therefore, in the absence of specific denial, averments made in the plaint are deemed to be admitted and the suit was liable to be decreed. This submission does not merit acceptance.
In reply to the averments made in the plaint defendants no. 1 and 2 in their written submission have pleaded that as the plaintiff has not stated in his pleadings as to when the application and scheme was submitted, the same is denied for want of knowledge and it is the burden of the plaintiff to prove those facts, after making proper pleadings in that regard. Defendants further pleaded that plaintiff has not made clear pleadings on which date Thakur Raj Singh had submitted written assurance before Nagar Vikas Mandal or Nagar Palika and the pleadings are incomplete, therefore, the defendants have no knowledge of the same. It was clearly pleaded that it is the burden of the plaintiff to prove that Thakur Raj Singh has submitted application and map of scheme dated 01.01.1958 and 08.02.1960. In further pleadings, defendants have stated that insofar as it is within their knowledge, Thakur Raj Singh had not submitted any undertaking in favour of Nagar Palika, Jaipur or Nagar Vikas Nigam. It was emphatically pleaded that the maps, copies of which have been filed along with the plaint, were not the maps submitted by Thakur Raj Singh as it does not contain his signature. Therefore, the pleadings contained in para no. 5 are false and denied. It was further pleaded that as far as knowledge of the defendants goes, Thakur Raj Singh never (Downloaded on 03/03/2025 at 10:12:56 PM) (17 of 25) proposed to surrender area A, B, C, D, Circle X, Triangle Y for common use of the residents of the colony nor any written assurance was submitted with Nagar Palika or Nagar Vikas Nigam that he would not transfer the lands to any third parties. It was further denied that on the basis of such so called written assurance, the scheme was approved. Not only this, it was pleaded that without the authority, a platform has been constructed for development of temple area without the permission of the defendants, against which, a suit has been filed. It was also specifically denied that the plots were sold with the assurance, as pleaded by the, plaintiff that area A, B, C, D, Circle X, Triangle Y, fountain, "hauj", fencing and open spaces shall remain as it is and will not be transferred to third parties. It was further denied that any assurance was held out that colony would be developed with facilities of electricity, water, etc. The defendants also pleaded that Thakur Raj Singh had never executed any agreement or given any assurance to the purchasers of the plots.
It was also denied that in the sale deeds of plots sold to the plaintiffs and other purchasers, Thakur Raj Singh gave written assurance not to sale disputed lands. Defendants stated that they are the owners of the land in dispute and they have all rights to sale those lands and the sale made by them in favour of defendants no. 5 and 6 was within their rights.
On the basis of such pleadings of denial by the defendants, argument of learned counsel for the appellant that the defendants have not denied specifically or by implication, the pleadings of the plaintiff is liable to be rejected. The decision relied upon by (Downloaded on 03/03/2025 at 10:12:56 PM) (18 of 25) learned senior counsel for the appellant are completely distinguishable on the facts of the case.
12. The case, as pleaded by the plaintiff, in para no. 4 of the plaint is that a written assurance was given by Thakur Raj Singh that Thakur Raj Singh had submitted map and scheme for development of proposed colony before the Nagar Palika and Nagar Vikas Nigam, Jaipur and that Thakur Raj Singh assured to develop a fully developed colony. One of the pleadings is that written assurance was given by Thakur Raj Singh to develop the colony according to the rules and regulations of the UIT with facilities of electricity, water supply and children park for the facility and use of the residents of the colony as lands of common and public use. It is pleaded that permission to develop colony was sought by showing such facilities in the map. According to the plaintiff, the map which is submitted, has been filed along with the plaint. Further pleadings are that after formal and necessary correspondence between Thakur Raj Singh, Nagar Palika and UIT permission was granted to Thakur Raj Singh to develop the colony and the map which was approved is also produced.
It was further pleaded that in the proposed and approved map, places A, B, C, D, Circle X and Triangle Y were left for common use of the residents of the colony and proposal to that effect was submitted by Thakur Raj Singh before the Nagar Palika and UIT and assurance was given not to transfer those lands to third parties. Thakur Raj Singh also submitted an undertaking in favour of the Nagar Palika and UIT. It is further pleaded that on such assurance of having submitted and approved map proposing to surrender land of area A, B, C, D, Circle X and Triangle Y and on (Downloaded on 03/03/2025 at 10:12:56 PM) (19 of 25) the assurance of developing the colony as per the submitted and approved map, plots were sold to the plaintiffs and other residents.
13. The burden was, therefore, on the plaintiff to approve that Thakur Raj Singh submitted application along with the maps and plan, wherein, he expressed to surrender the land in dispute for common use of the residents of the colony, before the Nagar Palika and UIT, which were approved.
14. In the plaint it has not been averred by the plaintiff that the application or map/plan was submitted by Thakur Raj Singh in the presence of the plaintiff nor any date has been stated.
15. Durga Shankar-plaintiff no. 1 and the first witness states that the maps were got prepared by Thakur Raj Singh in the year 1955-56 which were submitted for approval in the Municipality and UIT. In his cross-examination, however, he admits that the application or map was not submitted in his presence. Moreover, according to him, the map was got prepared by Thakur Raj Singh in the year 1955-56. The map-Exhibit-1 is stated to have been submitted by Thakur Raj Singh. The plaintiff-Durga Shankar-PW-1 having admitted that the applications/maps were not submitted by Thakur Raj Singh in his presence, the application dated 01.01.1958-Exhibit-3 is not an original document and was, therefore, not admissible in evidence without production of the original copy, as submitted with Nagar Palika. In the present case, even though the Urban Improvement Trust was impleaded as one of the defendants, it did not file any written statement to support the case of the plaintiff that application and maps were submitted by Thakur Raj Singh in the then Nagar Palika. Even during trial, (Downloaded on 03/03/2025 at 10:12:56 PM) (20 of 25) the plaintiff did not make any application for summoning the original records in possession of the UIT sofaras to prove the application dated 01.01.1958-Exhibit-3 or map-Exhibit-1. In order to prove the fact that Exhibit 1 was actually submitted by Thakur Raj Singh and application dated 01.01.1958-Exhibit 3 was actually submitted by Thakur Raj Singh, the plaintiff was required to either examine the concerned officers of the Nagar Palika/UIT who could have produced the original records containing the application alleged to have been submitted by Thakur Raj Singh. Even if it is assumed for the sake of arguments that the map contains signature of Thakur Raj Singh, in order to prove the fact of submission of that map with the Nagar Palika/UIT, the plaintiff was required to led evidence of actual submission of the same. The originals which are claimed to have been submitted with the Nagar Palika/UIT could have been proved by seeking production of the original records. A copy of the letter dated 01.01.1958-Exhibit E3 is only a photocopy and does not contain signature. In the absence of production of any records of UIT or evidence of any of the officials of the Nagar Palika/UIT regarding submission of map, the evidence of the plaintiff with regard to submission of application dated 01.01.1958 and map-Exhibit 1 by Thakur Raj Singh before the Nagar Palika/UIT, cannot be said to be proved.
16. Moreover, in the absence of proof of submission of application dated 01.01.1958 by Thakur Raj Singh, the map- Eshibit 1 by itself is not proof of the fact that the lands in question were surrendered by Thakur Raj Singh for the common use merely because they were shown in the map. Even in this map, various spaces have been marked as "Existing". Therefore, use of word (Downloaded on 03/03/2025 at 10:12:56 PM) (21 of 25) "Existing" does not mean that they were left open for public use. Unless there is emphatic evidence that Thakur Raj Singh surrendered those lands while submitting layout plan, the map- Exhibit 1 by itself is not proof of the fact that the lands in dispute were left open for public use. The map shows existing stable, existing swimming pool, existing plantation, existing water body, existing well etc.
17. According to PW 1-Durga Shankar, Exhibit P2 was approved. Again in the absence of any proof of surrender of existing spaces like garden, swimming pool, stable and other areas shown as existing, it cannot be said that those areas were surrendered by Thakur Raj Singh for common use.
18. The plaintiff, therefore, failed to prove as pleaded in the plaint that Thakur Raj Singh had submitted written assurance to surrender the disputed lands.
19. The other important aspect of the case is that the maps which have been filed as Exhibit- P1 and P2 shows workshop of Rajasthan State Roadways. According to the evidence of PW1, the map was got prepared by Thakur Raj Singh in the year 1955-56 and it is that map which was submitted by him with the Nagar Palika/UIT. Thus, according to the plaintiff, the map which was submitted was prepared in the year 1955-56.
20. It is on record that larger chunk of the land situated in the Chomu compound, which belonged to Thakur Raj Singh, was acquired by the land acquisition officer under the Rajasthan Land Acquisition laws. A copy of the judgment dated 31.01.1969 of the Civil Judge, Jaipur City in the land acquisition reference no. 109/1962/2/1968 [Thakurani Prem Kumari and another Vs. State] (Downloaded on 03/03/2025 at 10:12:56 PM) (22 of 25) reveals that a reference under Section 18 of the Rajasthan Land Acquisition Act was made against the award given by the land acquisition officer on 14.12.1961 regarding acquisition of 14.8 acres of land belonging to Thakur Raj Singh. However, the map which is claimed to have been prepared in the year 1955-56 as per the evidence of PW 1 shows the land of Rajasthan Roadways. As Rajasthan Roadways came into existence only after acquisition on part of land, it is clear that the map Exhibit- P1 and P2 on which the plaintiffs are relying could not have been prepared in the year 1955-56. This clearly shows that the plaintiffs have led in evidence the map as self serving document which was prepared much after the acquisition of the land and not even in existence prior to the acquisition of land.
21. The evidence of PW1 and all other plaintiff witnesses is that at the time of sale of land to the witnesses, the map prepared in the year 1955-56 by Thakur Raj Singh was shown to them and on that basis an assurance was held out that lands in dispute would be left as common spaces for various facilities for the use of the residents of the colony. Therefore, it is amply clear that the witnesses of the plaintiff are making incorrect statements that map Exhibit P1 was prepared in the year 1955-56, it was shown to them and on the basis of assurance held out to them by Thakur Raj Singh, they proceeded to purchase their plots.
22. Further pleadings made in the plaint are that written assurance was given to the plaintiffs and other purchasers of the plots by Thakur Raj Singh regarding leaving of open spaces (lands in dispute). Thus, according to the plaintiffs, written assurances (Downloaded on 03/03/2025 at 10:12:56 PM) (23 of 25) were given, however, no such document of written assurance has been led in evidence, much less proved by the plaintiffs.
23. The applications dated 08.02.1960-Exhibit P4 and 10.09.1960-Exhibit 6 also do not prove the case of the plaintiff that Thakur Raj Singh, while submitting application for grant of permission for development, had surrendered the lands in dispute in favour of the residents of the colony. The argument that in the absence of effective cross-examination with regard to submission of application dated 01.01.1958 and agreement dated 08.02.1968, the evidence has to be treated as uncontroverted and, therefore, proof of submission of application and map cannot be accepted. The plaintiffs having failed to prove submission of application by Thakur Raj Singh, much less proving Exhibit 3 in accordance with law and the same having not been admitted with emphatic statement that no such application was ever submitted, on holistic reading, did not make out the plaintiffs' case on the ground that evidence was not controverted in cross-examination.
24. The judgment/decree rendered in the case of Prem Kumari Vs. Mahaveer Prasad was in relation to Shiv temple and in the said judgment there was neither an issue framed nor decided that Thakur Raj Singh surrendered the lands in dispute while submitting an application and map which were later on proved. In that case, preparation of a platform and worshiping in the temple by Mahaveer Prasad and others was the cause of action. It was the case of the plaintiffs' Prem Kumari and Shakuntala Devi that on the lands sold by them vide registered sale deed in favour of Abdul Sattar defendant no. 1, constructions were raised by defendants Mahaveer Prasad and others. Plaintiffs' case was that (Downloaded on 03/03/2025 at 10:12:56 PM) (24 of 25) defendants no. 1 to 4 could not have constructed platform and established "Shivling" except in accordance with the provisions of law. The defendants' case was that in the scheme of development of colony, a temple was pre-existing and it is not a case that it was later constructed. A finding was recorded that Shiv temple was pre-existing and the plaintiffs failed to prove that it was constructed in the year 1966. On this basis, the suit was dismissed. Therefore, the plaintiffs' case of surrender of land in dispute by Thakur Raj Singh was neither raised nor decided in the suit of Prem Kumari and others Vs. Mahaveer Prasad and others.
25. As far as the judgment in the case of Mohini Devi Vs. UIT is concerned, plaintiff Prem Kumari was not party in that suit and the dispute of the present case was neither raised nor decided.
26. Learned counsel for the appellant also argued that two applications under Order 13 Rule 2 CPC were wrongly rejected by the learned trial Court. We further find that against rejection of those applications, the appellant filed revision petition before the High Court, which was dismissed. Therefore, the said issue cannot be allowed to be reopened.
27. All other submissions and judgment relied upon by the appellant are of no help in the absence of proof of the fact that Thakur Raj Singh had surrendered the land while submitting layout plan. The approval of map by UIT and the approval of plan vide resolution dated 10.091965 also does not prove the plaintiffs' case as the resolution does not contain any recital regarding surrender of the lands in dispute by Thakur Raj Singh while developing colony for the common use and facility of the plaintiffs and other residents of the colony. Submission of map without any (Downloaded on 03/03/2025 at 10:12:56 PM) (25 of 25) co-relation with the proof of fact that the area A, B, C, D, Circle X and Triangle Y as shown in the plaint were surrendered by Thakur Raj Singh, does not lead to surrender of those lands. As these maps show existence of depot of Rajasthan Roadways, it is amply clear that these maps were prepared much after the acquisition of part of the land owned by Thakur Raj Singh. The area marked as "Existing" by itself, without anything more, does not prove surrender of disputed lands by Thakur Raj Singh.
28. Therefore, in view of above consideration, the concurrent findings recorded by the learned trial Court as well as the first appellate Court do not warrant any interference in this appeal and the appeal is, therefore, dismissed.
(BHUWAN GOYAL),J (MANINDRA MOHAN SHRIVASTAVA),CJ Jayesh/ (Downloaded on 03/03/2025 at 10:12:56 PM) Powered by TCPDF (www.tcpdf.org)