Rajasthan High Court - Jaipur
Tota Ram Son Of Lochi Ram vs Deep Chand on 6 August, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL SECOND APPEAL NO.110/1984 Tota Ram S/o Lochi Ram & Ors. vs. Deep Chand & Ors. DATE OF ORDER : : 6th August, 2013 HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Shri Parag Rastogi for the appellants Shri Tripurari Sharma ) Shri Girish Khandelwal ) for the respondents.
REPORTABLE This is plaintiff's second appeal against the judgement dated 8.12.1983 passed by the Additional District Judge, Deeg, District Bharatpur who thereby reversed the judgement and decree dated 26.6.1978 passed by the Munsiff Magistrate, Deeg with direction to the learned Munsiff Magistrate to return the plaint to the plaintiff for presenting the same before the competent court of jurisdiction. The Munsiff Magistrate had decreed the suit filed by the plaintiff against the defendant-respondents restraining them by perpetual injunction from interfering with the possession of the plaintiff and directed by mandatory injunction to demolish the wall constructed over the disputed land. According to the plaintiff-Lochi Ram, he was recorded as gair-khatedar of the land of khasra no.484 measuring 18 biswas. The disputed land was part of that land, whereas the name of the defendants was recorded as gair-khatedar in the land of khasra no.483. The defendants by making encroachment into the land of the plaintiff in khasra no.484 have constructed a 50' long and 5' high wall indicated as 'X' to 'Y' in the map enclosed with the plaint between 26.1.1970 to 29.1.1970. The trial court upholding the contention of the plaintiff decreed the suit whereas the appellate court reversed that judgement holding that the defendants have not made encroachment over the land of the plaintiff and also that the civil court would have no jurisdiction to entertain the suit pertaining to a revenue dispute and that only revenue court would be competent to decide such matter.
The appeal was admitted for hearing on 1.10.1985 on the basis of separately proposed questions of law on 30.11.1984:
1. Whether the land in dispute is agricultural land when it is not being used for agricultural purposes for a long time and whether suit is triable by revenue court?
2. Whether the lower court was right in rejecting the site inspection note of Munsif which was used only for appreciating the evidence of parties?
3. Whether the lower court was right in giving finding on merits while deciding that civil court has no jurisdiction?
4. Whether adverse inference against the appellant could be raised for non-production of partition deed when it was not relevant for decision of case?
Shri Parag Rastogi, learned counsel for the appellants has argued that the learned lower appellate court was wholly unjustified in reversing the finding on Issue no.1 recorded by the trial court, which was based on correct appreciation of evidence. The learned first appellate court erred in discarding the inspection note prepared by the Presiding Officer of the Munsiff Court. The learned Munsiff carried out the inspection in the presence of both the parties only with a view to better understanding the evidence on record. Inspection of the site was carried on 24.4.1978. Such inspection could not have been ignored merely because the note of inspection mentions the word khet. The learned trial court has given sound reasoning in support of the judgement. The first appellate court could not have lightly interfered with the finding recorded by the trial court. The learned first appellate court erred in drawing an adverse inference against the plaintiff for non-production of the partition deed between appellant and Rajmal. The defendants, who were trespassers, had no locus to challenge the question of the partition deed. Lochi Ram appeared as PW-1 and supported the case on that aspect. Even if it is accepted that appellant is one of the co-owners, a single co-owner can also maintain a suit against the trespasser. The learned first appellate court further erred in law in not believing the version of the appellant when he appeared as PW-1 by observing that he has not stated as to how much land was utilised for construction of the road. It was not necessary for the appellant to state everything. Even otherwise, other witnesses deposed that how much land was utilised for construction of the road. Evidence of those witnesses could not be ignored. Even if the site plan was prepared with the help of already existing map, but if the measurements were verified at the spot and also the encroachments were marked by the learned Munsiff Magistrate, who personally inspected the site, such site plan could not have been ignored.
Shri Paras Rastogi, learned counsel for the appellant has stated that the first appellate court has committed a grave illegality in holding that the civil court had no jurisdiction to entertain a dispute of the present nature. In the first place, the land even though was recorded in the revenue records as agriculture land, but was actually used for residential purposes. There were pucca constructed houses in both khasra no.484 and 483 for last many years. Part of the land was being used for commercial purpose, which fact was admitted by the witnesses of the defendants and finding to which effect was recorded by the learned trial court. The trial court was wholly justified in entertaining the suit. Besides, main relief of the suit was demolition of encroachment made by the respondents by constructing wall and only a civil court would have jurisdiction to decree such a suit. If at all the first appellate court held that the civil court would not have jurisdiction, it should have returned the plaint rather than requiring the learned Magistrate to do so.
Shri Parag Rastogi, learned counsel for the appellants has argued that even otherwise, the plaintiff was recorded as gair-khatedar of the disputed land, therefore, he could not file any injunction suit of revenue nature as per Section 188 of the Rajasthan Tenancy Act, 1955, which could be filed only by a khatedar. Besides, Section 92A of the Rajasthan Tenancy Act provides for filing of the suit in respect of all or any of his rights conferred by the said Act and not otherwise. Section 251 of the Tenancy Act provides for filing of suit for claiming right of way and other private easement. Sub-section (2) of section 251 inter alia provides that no order passed under Section 251 shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent court of civil jurisdiction. Thus, it is evident that civil courts wields wider powers than the revenue courts. It was argued that Harchand, defendant-respondent was not made a party to the first appeal, whereas he was a party to the suit and, therefore, the appeal filed before the first appellate court was not competent. Learned counsel further argued that the appellant has filed an application under Order 41 Rule 27 CPC on 10.10.2000 in this appeal placing on record the certified copy of duly attested compromise deed showing that respondent-Deep Chand entered into a compromise with Kishore Kumar, grandson of original appellant Lochi Ram, who claimed title in part of disputed land through him only and in that compromise deed it has been accepted by defendant-Deep Chand that the land in dispute in fact belongs to the plaintiffs. The application was allowed on 29.3.2001.
Shri Paras Rastogi, learned counsel for the appellants further argued that the inspection, which was carried out by the learned Magistrate proves that the existence of the wall from the boundary of Dak Bunglow situated in khasra no.483, was 236 feet, whereas in the map of the defendants, this distance is shown as 218 feet (Ex.A3). The revenue map, Ex.A1 has shown the distance to be 33 `gathha', which corresponds to the distance indicated by the plaintiffs in their map Ex.1. It is for this purpose that the learned Munsiff Magistrate carried out the inspection and found that the wall has been constructed by the defendants in the land of the plaintiffs. Shri Parag Rastogi, learned counsel for the plaintiff-appellants in support of his arguments relied on the judgements of the Supreme Court in Ugam Singh & Anr. vs. Kesrimal & Ors.-AIR 1971 SC 2540., Smt. Sarifabibi Mohmed Ibrahim & Ors. vs. Commissioner of Income-tax, Gujarat-AIR 1993 SC 2585, judgments of this Court in Vishnuavtar & Ors. vs. Mawasi & Ors.-1975 Volume II WLN (UC) 443, Gopal vs. Durga Prasad-1974 Volume XXV RLW 151, and judgement of Patna High Court in Union of India vs. Gyani Ram Bharat Ram-AIR 1967 (Patna) 32 and judgement of Madras High Court in T.R.S. Mani vs. I.R.P. (Radio) Pvt. Ltd., Calcutta-AIR 1963 (Mad.) 30.
Shri Tripurari Sharma, learned counsel for the respondents opposed the appeal and submitted that the disputed land was recorded as agriculture land and this is evident from the fact that the land claimed by the plaintiff-appellants comprised in khasra no.484, whereas the land of the defendants was falling in khasra no.483. The first appellate court was therefore justified in holding that the civil court would have no jurisdiction and only revenue court would have jurisdiction to entertain the suit. It was argued that the learned trial court should have decided the suit on the basis of evidence collected and not on the basis of inspection note. The first appellate court rightly doubted the correctness of measurement given by the plaintiffs. The plaintiffs failed to prove as to how much land of khasra no.484 was utilised for construction of road. The plaintiffs could not give any definite answer as to what was the distance between the boundary of the Dak Bunglow and their land. Plaintiff-Lochi Ram himself as PW-1 and PW-2 Bhagwan Das, son of the plaintiff, also could not explain the same. PW-3 Ajeet Prasad, the Draftsman admitted in cross examination that Ex.1 was prepared by him on the basis of another map given to him by the plaintiff. The learned appellate court therefore rightly reversed the judgment of trail court on merits though on the question of maintainability also it was justified in holding that only revenue court would have jurisdiction to entertain the dispute. It is therefore prayed that the appeal be dismissed.
I have given my anxious consideration to the rival submissions and perused the material on record.
I shall first deal with the question of jurisdiction before proceedings to examine the matter on merits. The learned trial court in holding the suit maintainable relied on the judgement of the Supreme Court in Commissioner of Wealth-tax, Andhra Pradesh vs. Officer-in-charge, (Court of Wards), Paigah-AIR 1977 SC 113. The Supreme Court in that case held that an agriculture land is the land which can be said to be either actually or ordinarily used for agricultural purposes. In other words, agriculture land must have a connection with an agricultural user or purpose. The trial court on analysis of the evidence of DW-1 Deep Chand and DW-2 Ram Kishan held that part of the land was being used for construction of shops and bus stand. PW-5 Govind Prasad also admitted that shops were constructed in the land of khasra no.483 and 484. He has admitted that for last 10-12 years he has not seen any of these khasras being cultivated for agriculture purpose. Presiding Officer of the trial court in his inspection report also observed that the land was not being put to agriculture use and that it was mostly populated by abadi. Ex.A1, the revenue map was relied on by the learned trial court to hold that according to which, the distance of the land from the south eastern corner of the Dak Bunglow situated in khasra no.482 to khasra no.483 was 33 `gathha' which is equivalent to 218 feet. Both the parties in their respective maps Ex.1 and Ex.A3 have treated the south-eastern boundary of the Dak Bunglow as the fixed point. DW-1 Deep Chand, DW-2 Ram Kishan and DW-5 Govind Prasad stated that they have seen the Dak Bunglow there ever since they gained senses. The defendant Ram Narayan, Girdawar (DW-4), who prepared Ex.A1 for defendants however asserted the distance from the wall of the Dak Bunglow to the land of khasra no.483 to be 237 feet. Learned counsel for the defendants in the courts below sought to explain the distance of 218 feet indicated in Ex.A3 map submitted by him by stating that it was a mistake in writing. DW-4 Ram Narayan, Girdawar in cross examination however denied the suggestion that this distance was 234 feet and not 218 feet. It can be noted at this stage that the learned trial court has directed his prosecution for making such misleading statement. PW-1 Lochi Ram has however said that the land of khasra no.483 measuring 18 biswas was situated 33 `gathha' away from the land of Dak Bunglow and that the defendants constructed the boundary 18 feet inside his land. PW-2 Bhagwan Das has supported him. PW-3 Ajeet Prasad, the Draftsman has proved that the boundary has been constructed 16-17 feet inside khasra no.484. The learned Magistrate found these facts corroborated from his inspection. DW-1 Deep Chand when asked to explain this, has pleaded ignorance about the actual distance of the disputed land from the boundary of the Dak Bunglow, whereas DW-3 Bhuvneshwar Sharma has also described this distance to be 33 `gathha'. DW-5 Govind Prasad has stated that defendant was put in possession of the disputed land by the revenue department.
On critical examination of all this evidence, the learned trial court held that the wall was constructed inside the land of the plaintiff in khasra no.484. In view of the reasonings given by the learned Magistrate, the first appellate court was not justified in reversing those findings by giving undue weightage to minor contradictions in the statement of the plaintiff. The fact that khasra no.484 was in joint name of the plaintiff-appellant and Bhagwan Das lost significance once he appeared in witness box and supported the plaint. PW-2 Bhagwan Das has also fully proved the case of the plaintiff, but his statement was not correctly read by the first appellate court. The defendants could not have disputed the case of the plaintiff. Vide Ex.A3, the map produced by the defendant himself indicated the distance to be 218 feet which correspondent to the distance indicated by the appellant in his map Ex.1 and the revenue map Ex.A1. It is thus proved that the land on which the wall was constructed belongs to the appellant being khasra no.484. This fact even otherwise has to be accepted by granting application under Order 41 Rule 27 and taking the certified copies of the compromise deed filed by the plaintiff-appellant on record. That compromise was entered into between Kishore Kumar, grandson of the plaintiff-appellant Lochi Ram and Deep Chand during his lifetime on 2.12.1999 with respect to the part of land of khasra no.484. In that compromise deed, it was original defendant-Deep Chand, who admitted that the plot ABCD shown in the map enclosed with the compromise deed, which form part of the land of khasra no.484, in fact, belongs to plaintiff and the land on its northern side vis-a-vis land of khasra no.483 belongs to the defendants. It was precisely in this context that the learned Munsiff Magistrate conducted site inspection with reference to Order 18 Rule 18 of CPC. The memo of site inspection assumes significance and said site inspection report cannot be ignored because it was carried out by the learned Munsiff Magistrate only for the purpose of better understanding the evidence lead by the parties. It goes without saying that the learned Magistrate did not decide the matter only on the basis of inspection report, rather he used the inspection carried out by him in aid of evidence adduced by the parties.
The Supreme Court in Ugam Singh & Anr., supra held that if the inspection is made by the Presiding Officer of a Court only for the purpose of understanding the evidence and his judgement is not entirely based on the result of the inspection, it would not vitiate the proceedings.
Coming now to the question of jurisdiction, reliance in this connection was placed by the trial court on a judgement of the Supreme Court in Commissioner of Wealth-tax, Andhra Pradesh, supra. That judgement was though rendered in the context of the term agriculture land within the meaning of Section 2(e)(i) of Wealth Tax Act, is equally relevant even for the present controversy. Therein, the Supreme Court held that agriculture land must be a land, which can be said to be either actually used or ordinarily used or meant to be used for agricultural purposes. In other words, agricultural land must have a connection with an agricultural user or purpose. Merely because the said term has not been defined, it does not mean that the land to be considered can be divorced from its actual or natural or ordinary user.
In the present case, the evidence on record overwhelmingly proved that the land of both the khasras i.e. khasra no.483 and 484, is predominantly now falling in the abadi area which is further corroborated from the fact that adjoining land of khasra no.482 was used for construction of the Dak Bunglow long ago and there is also mention in the judgement of courts below regarding construction of road, shops and houses in lands of both the disputed khasras, only because the land was recorded as agriculture land in revenue record cannot be in the facts of the case, basis to oust jurisdiction of the civil courts if it is otherwise falling in the abadi area.
This Court in Gopal, supra on consideration of Section 103(b) of the Land Revenue Act held that merely because a portion of the abadi land is being used as garden or for cultivation will not change the character of the land. This Court in Banshidhar & Anr. vs. Ram Narain-1997 WLC (Raj.) UC 676 was dealing with a case where the disputed `bara' though shown to be part of particular khasra number in the revenue record, but was having on it five shops constructed. The `bara' was in the midst of abadi. There was no evidence of its being ever cultivated or land revenue being paid. The dispute was held to be cognizable by civil court.
In view of above, it must therefore be held that the civil court was fully competent to independently decide the dispute in the present case. The appeal therefore succeeds and is accordingly allowed. The impugned order passed by the learned first appellate court dated 8.12.1983 is set aside and that of the learned trial court dated 26.6.1978 is restored.
(Mohammad Rafiq),J.
RS/ All corrections made in the judgement/order have been incorporated in the judgement/order being emailed. (Ravi Sharma,P.A.