Rajasthan High Court - Jodhpur
Pratapa vs Gram Panchayat Ahor Th. Sarpanch on 22 March, 2018
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Civil Second Appeal No. 271 / 2016
Pratapa Son of Roopa, Resident of Hanuman Colony, Khara Road,
Ahor, District Jalor
----Appellant
Versus
Gram Panchayat Ahor Through Its Sarpanch, Tehsil Ahor District
Jalor
----Respondent
(2) S.B. Civil Second Appeal No. 52 / 2017
Smt. Sakudi Daughter of Shri Gamanaram, By Caste Meena,
Resident of Hanuman Colony, Jalore.
----Appellant
Versus
1. Sarpanch, Gram Panchayat- Ahore, Teh. Ahore, District Jalore.
2. Okharam Son of Shri Narsaji, By Caste Meena, Resident of
Kasturba Colony, Ahore, Teh. Ahore, District- Jalore.
3. Bhanwarlal Son of Shri Tejaji, By Caste Meena, Resident of
Kasturba Colony, Ahore, Teh. Ahore, District- Jalore.
4. Jeevaram Son of Shri Okharam, By Caste Meena, Resident of
Kasturba Colony, Ahore, Teh. Ahore, District- Jalore.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. R.J. Punia and
Mr. Amit Mehta
For Respondent(s) : Mr. R.K. Rathi
_____________________________________________________
JUSTICE DINESH MEHTA
Judgment
22/03/2018
The present appeal under Section 100 of the Code of Civil
Procedure has been preferred by the appellant-plaintiff, laying
(2 of 10)
[CSA-271/2016]
challenge to the judgment and decree dated 26.10.2016 passed
by learned District Judge, Jalore (hereinafter referred to as
"Appellate Court"), whereby his appeal against the judgment and
decree dated 08.09.2011 passed by learned Additional Civil Judge
(Sr. Div.) No.1, Jalore (hereinafter referred to as 'the trial Court')
in Civil Original Suit No.28/2005 (52/2004) has been rejected.
Succinctly stated the facts, relevant for deciding the present
appeal are that the appellant - plaintiff filed a suit for mandatory
injunction with the assertion that a plot, ad-measuring 165x86ft.,
total area 1575 sq. yards, situated at Khara Road, Hanuman
Colony of Ahore, Distt. Jalore, has been in his peaceful possession,
wherein the appellant had constructed a hut 'Bada' for keeping
cattle and other facilities therein. The plaintiff approached the trial
Court, on receiving a notice dated 15.10.2004 issued by the
Gram-Panchayat Hanumangarh, vide which he was asked to
remove his encroachment, failing which the same was threatened
to be removed in accordance with provisions under Rajasthan
Panchayat Raj Act.
In response to the suit, so filed by the plaintiff, the
respondent Gram-Panchayat, Ahore filed a written statement and
contended that the plaintiff belonged to wandering Community
(Ghumakkad), who does not stay at one place; hence his
assertion that the land in question is under his possession for last
30-35 years is factually incorrect, while maintaining that since the
plaintiff had not issued requisite notice under Section 109 of the
Panchayat Raj Act, the suit filed by the plaintiff is liable to be
rejected.
(3 of 10)
[CSA-271/2016]
On the basis of the pleadings of the rival parties, the Trial
Court had framed the following issues:-
^^1- vk;k okn&i= ds iSjk la[;k ,d esa of.kZr Hkw[k.M oknh ds
dCts esa xr pkyhl o"kksZa ls vf/kd le; ls gS vkSj og Hkw[k.M dk
'kkafriwoZd mi;ksx miHkksx cgSfl;r ekfyd fjgk;l dj jgk gSa \
2- vk;k fookfnr Hkw[k.M xzke iapk;r vkgksj dh futh lEifRr gS
vkSj ml ij dCtk Hkh xzke iapk;r vkgksj dk gS \
3- vk;k oknh us /kkjk 109 iapk;r vf/kfu;e dk oS/k uksfVl ugha
fn;k \ ;fn gkW rks okn ij vlj \
4- vk;k fookfnr lEifRr ckcr~ 126@96 fnukad 2-4-96 dks Qsly
gks pqdk gSA vr% okn iks"k.kh; ugha gS \
5- vuqrks"k \**
The Trial Court decided the issues No.1 & 2 against the
plaintiff and has held that the land in question belongs to Gram-
Panchayat, Ahore and that the plaintiff is not having possession
over the land for past 40 years as claimed. Learned Trial Court
has given a finding that the plaintiff has failed to bring any
documentary evidence on record evincing his possession and that
the voter list of 1995 and electricity connection are not sufficient
to prove his possession on the said land; as requisite particulars
of the land or area have not been given on these documents.
While deciding the issue No.2, the Trial Court had given a
categorical finding that the land belongs to Gram-Panchayat. In
wake of these findings, the Trial Court rejected the suit filed by
the plaintiff.
In an appeal filed there-against, the Appellate Court dealt
with the evidence available on record and aptly considered the
arguments advanced by the appellant while affirming the order of
(4 of 10)
[CSA-271/2016]
the Trial Court and rejected the appeal vide order dated
26.10.2016.
Mr. R.J. Punia, learned counsel appearing for the appellant
contended that upon perusal of the voter-list of 1995 (Exhibit -
4), it is clear that the plaintiff has been living on the subject land
at least since 25 years. He contended that in any event the
appellant is having a settled and peaceful possession over the
land and he cannot be removed by the respondent - Gram-
Panchayat. Mr. Punia, cited judgment of Hon'ble the Supreme
Court in case of Rame Gowda (Dead) by LRs. Vs. M. Varadappa
Naidu (Dead) by Lrs. & Anr., reported in (2004) 1 SCC 769 and
inviting attention of the Court towards para No.8, he contended
that a person having settled possession over the land cannot be
evicted. Said para No.8 of the judgment relied upon by Mr.
Punia, is reproduced hereunder :-
"8. It is thus clear that so far as the India law is
concerned, the person in peaceful possession is
entitled to retain his possession and in order to protect
such possession he may even use reasonable force to
keep out a trespasser. A rightful owner who has been
wrongfully dispossessed of land may retake possession
if he can do so peacefully and without the use of
unreasonable force. If the trespasser is in settled
possession of the property belonging to the rightful
owner, the rightful owner shall have to take recourse
to law; he cannot take the law in his own hands and
evict the trespasser or interfere with his possession.
The law will come to the aid of a person in peaceful
and settled possession by injuncting even a rightful
owner from using force or taking the law in his own
hand, and also by resorting him in possession even
(5 of 10)
[CSA-271/2016]
from the rightful owner (of course subject to the law of
limitation), if the latter has dispossessed the prior
possessor by use of force. In the absence of proof of
better title, possession or prior peaceful settled
possession is itself evidence of title. Law presumes the
possession to go with the title unless rebutted. The
owner of any property may prevent even by using
reasonable force a trespasser from an attempted
trespass, when it is in the process of being committed,
or is of a flimsy character, or recurring, intermittent,
stray or casual in nature, or has just been committed,
while the rightful owner did not have enough time to
have recourse to law. In the last of the cases, the
possession of the trespasser, just entered into would
not be called as one acquiesced to by the true owner. "
Mr. Punia, further cited the judgment of this Court rendered
in case of Kanti Lal Vs. Smt. Shanti Devi & Ors., reported in 1998
(3) WLC (Raj.) and in light of observation made in para No.27, he
submitted that the appellant - plaintiff cannot be evicted from the
premises in question, as he is having settled possession over the
contentious piece of land. Para 27 of the said judgment is
reproduced hereinfra:-
"27. In my humble opinion, the concept of English Law
to the effect that possession is good title against all
except the true owner and authorised a possessor to
file a suit for ejectment against violent invasion of
possession got statutory recognition under Section 110
of the Indian Evidence Act raising presumption about
ownership in favour of possessor. The proposition of
law on these two points arose before the Privy Council
in case of Perry v. Clissold and others, reported in
1907 AC 73, where their Lordships of Privy Council
(6 of 10)
[CSA-271/2016]
summed up proposition of law, which reads thus-
"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 agaisnt all the world but the
rightful owner. And if the rightful owner
does not come forward and asset this title
by process of law within the period
prescribed by the provisions of the Statue
of Limitations application to the case his
right is for ever extinguished and the
possessor owner acquires an absolute title."
Mr. R.K. Rathi, learned counsel appearing for the respondent,
per contra, argued that the appellant is a rank trespasser and has
encroached over the huge government land. He further submitted
that the appellant, belongs to Gypsi Community, who instead of
staying at one place, keeps on wandering from one village to
another; hence it cannot be believed that the plaintiff is having
possession over the land as claimed. He submitted that as the
plaintiff had made encroachment over the land, Gram-Panchayat
has taken legal action against him and issued a notice dated
15.01.2004 (Exhibit-3), ensuring the removal of the
encroachment.
Mr. Rathi, further submitted that both the Courts below have
concurrently held that the plaintiff is having no settled possession
over the land and the land in question belongs to Gram-
Panchayat Ahore; and that the appeal in question does not
involve any substantial question of law, requiring consideration of
(7 of 10)
[CSA-271/2016]
this Court.
I have heard learned counsels for the parties and perused
the material available on record.
As far as, the voter-list of 1995 relied upon Mr. Punia, is
concerned, a look thereupon reveals that the same does not even
have the address of the appellant and the same is a proof that
the plaintiff is a voter as per the elect-roll of Ahore. The oral
evidence in support of his assertion that he is having possession
over the land for more than 40 years is of little avail to the
appellant.
In case like this, when the case of the plaintiff is based on
oral evidence, the Court is also required to consider the oral
evidence and the documentary evidence led by the defendant -
Gram-Panchayat. On behalf of the defendant, Sarpanch, Gram
Panchayat, DW-1 came in the witness box and deposed that the
land in question was earlier Gochar/posture land, which has
subsequently been converted to Abadi land; while maintaining
that the plaintiff is not having possession for 40 years. It was
also asserted by DW-1 that on earlier occasion, when the plaintiff
tried to make encroachment, he was ejected.
In light of the oral evidence and assertion of the Gram-
Panchayat that the encroachment of the appellant was very
recent one and the land belongs to the defendant - Gram-
Panchayat, there is nothing on record to show that the appellant
is having possession of more than 40 years.
Even if, for a moment, it is assumed that the plaintiff's
encroachment over this land is since 1995, the notice dated
(8 of 10)
[CSA-271/2016]
10.01.2004 issued by the Gram-Panchayat was well within the
limitation of 12 years, which is available even to a common man,
whereas the land being Government land and Gram-Panchayat
being an arm of the State Government, enjoys 30 years period of
limitation for taking any action against a tresspasser.
The judgments cited by Mr. Punia, are of hardly any help to
him, inasmuch as in judgment of Rame Gowda (Dead) by LRs
(supra), Hon'ble the Supreme Court has simply held that the true
owner cannot take recourse to force or take law in his own hands.
This judgment cannot be read to mean that Hon'ble the Supreme
Court has protected possession of even trespasser from the true
owner, if the true owner takes resort to appropriate legal
proceedings. In other words, the protection given by Hon'ble
Supreme Court to the trespasser or a person having settled
possession over the land is only with a view to save them from
illegal use of force; and not against the lawful action taken by the
true owner.
In the present case, the Gram-Panchayat had issued a notice
to the appellant - plaintiff for removing his possession, it was
informed that failing which it would take lawful means, for
evicting the plaintiff. Hence, the judgments of Hon'ble Supreme
Court, cited by Mr. Punia, is not applicable in the facts of the
present case, as the defendant has taken a lawful action for
eviction.
Similarly, the judgment of this Court, rendered in Khanti Lal
(supra) is also not of any help to the plaintiff as it has been
clearly held that the settled possession cannot be removed and if
(9 of 10)
[CSA-271/2016]
the rightful owner does not come forward and assert his title by
process of law, within the period prescribed by the provisions of
the statute of limitation, such owner cannot use force for
ejectment.
In the present case, since the Gram-Panchayat had kick-
started the proceedings for evicting the plaintiff well within the
period of limitation, no fault can be found in their action. The
plaintiff cannot be permitted to encroach upon such a huge public
land and then seek protection from the Court of law, taking plea
of settled possession.
In view of the discussion aforesaid, this Court concurs with
the findings recorded by the Courts below and does not find any
question of law, much less substantial question of law, requiring
determination by this Court.
The appeal therefore fails and is dismissed accordingly. No
order as to costs.
(S.B. Civil Second Appeal No. 52 / 2017)
The facts of the present case are almost identical to the facts
of S.B. Civil Second Appeal No.271/2016 titled as "Pratapa vs.
Gram Panchayat Ahore" decided today. The only minor difference
in the facts is that the appellant herein had produced evidence of
her possession over the land in question since 1982, whereas in
the aforesaid Second Appeal No.271/2016, the appellant had
produced evidence of his possession (voter list of 1995). Learned
counsels for the parties are ad idem that except the minor
(10 of 10)
[CSA-271/2016]
difference as indicated earlier, there is no substantial difference in
the facts and question(s) involved in these two cases.
In the considered opinion of this Court, even the fact that
the plaintiff was in possession since 1982 would hardly make any
difference as the impugned notice of eviction came to be issued on
15.01.2004, well within period of limitation, available to the
defendant - Gram Panchayat.
Following the judgment of even date passed in Civil Second
Appeal No.271/2016 titled as "Pratapa Vs. Gram Panchayat,
Ahore", this appeal is also dismissed.
No order as to costs.
(DINESH MEHTA), J.
Upendra/83 & Himanshu-85