Rajasthan High Court - Jaipur
Kishan vs Smt. Premi And Ors. on 4 November, 1988
Equivalent citations: 1989WLN(UC)453
JUDGMENT N.C. Sharma, J.
1. This is a second appeal by defendants Nos. 3 & 4 against the appellate decree of the District Judge, Pratapgaih in Civil First Appeal No. 36 of 1970 dated September 6, 1974 reversing the decree by the Civil Judge, Chittorgarh in Civil Original Suit No. 70 of 1966 on March 25, 1970 and decreeing the suit of the plaintiffs-respondents Nos 1 to 3 for permanent injunction against the appellants and respondents Nos. 4 & 5.
2. Facts leading to the filing of this second appeal are that Madanlal Tamboli plaintiff instituted a suit on April 20, 1966 in the Court of the Civil Judge, Chittorgarh for permanent injunction against the appellants and respondents Nos. 4 & 5 for restraining them from interfering in his possession over a small plot of land measuring 13' east-west and 11 feet north-south located in village Begun with boundaries specified at the foot of para No. 1 of the plaint and from removing the betel shop carried on there by him. It was alleged by the plaintiff that this plot of land was granted to him by Municipal Committee Begun under a Bapi Patta dated March 16, 1959 after receipt of Nazrana and he was in its possession since then. There is a Chabutra made from Patties over this plot of land where upon the plaintiff carries on his betel shop. Subsequently this area formed part of Gram Panchayat Begun. The Gram Panchayat issued notice to the plaintiff on August 17, 1965 and on March 15, 1966 requiring the plaintiff to remove his possession over this plot of land. The plaintiff alleged that he was in lawful possession over the plot of land in pursuance of the Bapi Patta granted to him by Municipal Board Begun and the defendants have no right to interfere in his possession. So far as defendants NOS. 3 & 4 are concerned, it was alleged that they were instigating the Panchayat Samiti Begun to get the possession of the plaintiff removed from this plot of land. The plaintiff bad impleaded Gram Vikas Panchayat Begun and Panchayat Samiti Begun respectively as defendants Nos. 1 & 2 in the suit. The appellants were impleaded as defendants Nos. 3 & 4.
3. Gram Vikas Panchayat Begun and Panchayat Samiti Begun remained ex parte and the suit was contested by the appellants. The case set up by the appellants was that the plaintiff in collusion with Chosar Singh Bahel, the then Chairman of Municipal Committee Begun, obtained wrongly a Patta in respect of the disputed plot of land. On the protest from the residents of village Begun, the State Government by its order dated December 11, 1959 withdraw the rights from the Municipal Committees to dispose of the land and of the sales made after February 16, 1959 were cancelled. It was also pleaded that possession over the disputed plot of land was not delivered to the plaintiff under the Patta. As a matter of fact, the plaintiff only illegally occupied this plot of land on August 15, 1965 where upon the appellants moved to the Panchayat Samiti Begun and the Panchayat Samiti passed an order on August 22, 1966 for removing the possession of the plaintiff from the suit plot of land, It was stated that Gram Panchayat Begun is fully competent to remove the possession of the plaintiff who was only a trespasser over this land. The appellants further stated that there existed a temple in front of this land and the plaintiff wanted to injure the religious feelings of the worshippers of the temple by borrowing the view of the temple by placing an almirah to run his betel shop. Lastly, it was pleaded that the Bapi Patta was unstamped and unregistered and, therefore, the same was inadmissible in evidence.
4. The suit was tried by Civil Judge, Chittorgarh and he decided it on March 25, 1970. The Civil Judge held that the Bapi Patta Ex 1 dated 16th March 1959 was unstamped and unregistered documents and, therefore, it could not convey title in favour of the plaintiff over the suit plot of land. According to the trial court, the sale price was more than Rs. 100/- and, therefore, the Patta required registration It was also held by him that Bapi Patta Ex. 1 is only signed by Chosar Singh, Chairman of the Municipal Committee and was not signed by two more members of the Committee as required by Section 36(7) of the Rajasthan Town Municipalities Act 1954. He also stated that residents of village Begun had raised objection against transfers of various plots made by the Chairman Municipal Committee Begun whereupon the Collector, Chittorgarh had issued notices to all the persons topping them from making any constructions Plaintiffs name was also included in the list. An inquiry was made by the Sub-Divisional Officer in pursuance of the orders of the State Government dated February 17, 1959. The Government thereupon held these transfers by the Chairman Municipal Committee Begun as illegal and without authority and wrote to the Collector Chittorgarh to take back possession of the plots from the vendees. It was held that 31 transfers were cancelled and the list also included the transfer made in favour of the plaintiff of the suit plot. On this basis, the Civil Judge held that the plaintiff did not acquire any right title or interest under the Bapi Patta Ex. 1 and further that the patta also stands cancelled after due inquiry. The trial court also held that the plaintiff had occupied this plot of land on August 35, 1965 forcibly by placing an Almirah. Under issue No. 6 it was held that since the plaintiff bad no legal title to the said plot, Gram Vikas Panchayat Begun bad power under the statute to remove the encroachment and further that the plaintiff was not entitled to the grant of the relief for permanent injunction without getting the order of the State Government declared illegal. In view of its findings on issues Nos. 1,4 and 6 against the plaintiff, the trial court dismissed the suit.
5. Aggrieved by the decree, the plaintiff filed First Civil appeal No. 36 of 1970 before the District Judge, Pratapgarh. The District Judge held that the order passed by the Government on December 11, 1959 was without jurisdiction because there was nothing to show that the SDO, Chittoragarh was in any way appointed or authorised under Section 195 of the Rajasthan Town Municipalities Act to report to the State Government about the validity of the sales. The District Judge further held that the Bapi Patta was granted by the Municipal Committee Begun which had passed to exist and in its place Gram Vikas Panchayat Begun has been constituted. According to him, it was the Municipal Committee Begun who could question the Validity of the sale. Apart from that, the Gram Vikas Panchayat Begun had remained ex parte and had not appeared before the Court to raise any objection regarding the sale of the suit plot of the plaintiff. It was also held that in the written statement filed by the appellants they have not attacked the Bapi Patta on the ground that the provisions contained in Section 36(7) of the Rajasthan Town Municipalities Act were not complied with. Therefore, defendants Nos. 3 and 4 could not be permitted to attack the Patta issued by Municipal Board Begun on March 16, 1959 in favour of the plaintiff. The District Judge, therefore, allowed the appeal filed by the plaintiff and decreed his suit for permanent injunction restraining all the defendants from interfering with the possession of the plaintiff over the suit plot of land.
6. Bhanwar Lal and Kishan, who were defendants No. 3 and 4 in the suit, have filed this second appeal. Mr. Suresh Shrimali appearing on behalf of these defendants-appellants has urged that the District Judge was wrong in holding that the State Government had no power to cancel the sale of suit plot of land in favour of the plaintiff. It was argued that the plaintiff had no where challenged the order of the State Government cancelling the sale of the plot of land under its supervisory, administrative and general control. It was further contended that on complaint of public of Begun town against the wholesale illegal sales of the portions of public street it. Jhanda Chowk that the Government instituted an inquiry and appointed SDO Chittorgarh for that purpose and on his recommendations and sale of plots was cancelled. It was further correspondent that Gram Vikas Paanchayat as successor trial body of Municipal Committee Begun bad every right to challenge the validity of an earlier illegal action of Municipal Committee Begun. It was further urged that the Patta Ex. 1 was an unregistered document and was inadmissible in evidence and the plaintiff's suit could not be decreed on its basis Apart from that compliance of Section 36 of the Rajasthan Town Municipalities Act was also not made and, therefore, the Patta was void and conferred no right title or interest upon the plaintiff-respondent No. 1. Lastly, it was urged that the disputed land is just in front of the temple of the appellants and formed part of a public street. The trial court has found it as a fact and the Municipal Board had no authority to sell such lands and even otherwise the appellants have right to remove the obstructions in front of their temple and encroachment on a public street.
7. So far as defendants Nos. 3 and 4 in the suit are concerned, the allegations made by the plaintiff in his plaint were that as representatives of Mahran of Begun they were getting proceedings initiated against the plaintiff from Panchayat Samiti. The underlying idea of the appellants was that some how the possession of the plaintiff from the suit plot be got removed with the assistance of Gram Vikas Panchayat Begun and Panchayat Samiti Begun so that they may get this plot of land granted in their favour. There was no assertion in the plaint that the appellants themselves attempted to forcibly dispossess the plaintiff from the suit plot of land. The only assertion was that the appellants had moved defendants Nos. 1 and 2 for the purpose. The appellants in their written statement pleaded that the plaintiff had despite the cancellation of the sale entered into possession of the suit plot of land on August 15.1965 illegally whereupon they moved Panchayat Samiti for the purpose. The appellants further pleaded in the written statement that Gram Vikas Panchayat Begun and Panchayat Samiti Begun had statutory right to remove the encroachment. Lastly, their case was that the disputed plot of land is just in front of the temple and the placing of an almirah in order to run a betel shop at this place injured the religious feelings of the devotees of the temple. It cannot be denied that the plaintiff entered into possession over the disputed plot of land because he had been granted Bapi Patta on March 16, 1959 by the Municipal Board Begun It might be that the plaintiff may have actually started his betel shop on the suit plot on August 15, 1965 as found by the trial court, but the fact lies that he occupied this plot of land because a Patta (Ex. 1) had been issued in his favour. It is true that Patta Ex. 1 is neither stamped nor registered and, therefore, it is insufficient to convey a title in favour of the plaintiff in respect of the suit plot under Section 54 of the Transfer of Property Act. How ever, it can be looked upon for the collateral purposes of showing the nature and character of the possession of the plaintiff It is quite clear that under the Patta Ex 1 the plaintiff obtained permissive possession from the Municipal Board, Begun. The appellants have in their memo of appeal taken a ground that this Patta was not signed by two members of the Municipal Board Begun and, therefore, it violated the mandatory provisions contained in Section 36(7) of the Rajasthan Town Municipalities Act hence it was void and ineffective to effect the sale of the plot in favour of the plaintiff. It may be mentioned in this connection that such a plea was not raised by the appellants in their written statement and as a matter of fact, this plea was only at best open to the defendants Nos. 1 and 2. As already stated, defendants Nos. 1 and 2 remained ex parte before the trial court. They had been impleaded by the plaintiff as respondents Nos. 1 and 2 before the District Judge, Pratapgarh in first appeal Defendants Nos. 1 and 2 also remained ex parte before the first appellate Court. The first appellate court has passed a decree for permanent injunction restraining Gram Vikas Panchayat, Begun and Panchayat Samiti, Begun from interfering in the possession of the plaintiff. Gram Vikas Panchayat Begun and Panchayat Samiti Begun, against whom a decree for permanent injunction has been passed, have not come in second appeal against the decree of the first appellate court So far as defendants Nos. 3 and 4 are concerned, they are admittedly not owners of the disputed plot of land. As already stated, it was not at all the case of the plaintiff that defendants Nos. 3 and 4 were in any way forcibly dispossessing him from the suit plot of land and, therefore, no decree against them for permanent injunction was called for on the basis of the allegations contained in the plaint.
8. It is well settled that possession, even of a trespasser, is good against the whole worked except the true owner. The defendants Nos. 3 and 4 are undisputably not owners of the suit plot and the plaintiff is entitled to protect his possession from any interference from the side of the appellants, if any. The appellants have no more locus stand in the second appeal except to show that their rights were in any way infringed by the grant of the patta. It is quite clear that the Patta was not granted in respect of a lard belonging to the appellants As a matter of fact, the disputed plot of land as it some distance even from the temple No legal rights of the appellants have been infringed by the grant of patta Ex. 1, in any event if the appellants had any right, their remedy lay by way of filing a suit against the plaintiff claiming appropriate relief. The appellants cannot represent the true owner of the disputed plot of land which, admittedly at the relevant time, was Municipal Board Begun and which, as already stated has not challenged the appellate decree of the District Judge, Pratapgarh and has allowed it to become final
9. It has already been observed that there was no necessity to pass a decree for permanent injunction against the appellants because no overt act on their part to dispossess the plaintiff from the suit plot of land was alleged in the plaint and the only allegations was that they were instigating defendants Nos. 1 and 2 The instigation of the type alleged did not warrant the grant of a permanent injunction as against the appellants.
10. In the light of the view taken by me as above, the decree passed by the District Judge, Pratapgarh as against respondents Nos. 4 and 5 cannot be disturbed because it has already attained finality against them and they have cot filed any second appeal. It may be mentioned that this appeal was filed by Bhanwarlal and Kishan Bhanwarlal died during the pendency of this appeal. An application was filed on behalf of Kishan stating that as the suit against Bhanwarlal and Kishan was in representative capacity and as much the right to sue did not survive in favour of legal representatives of Bhanwarlal. Thus Kishan only remains appellant on record. The appeal so far of appellant is concerned deserved to be allowed for the reasons that it has not been established that Kishan or deceased Bhanwarlal were in any way interfering in the possession of the plaintiff over the suit plot of lard.
11. I, therefore, part;y allow this appeal, set aside the decree of the District Judge, Pratabgarh passed by him as against Bhanwarlal and Kishan defendants in their representative character. The decree as against Gram Vikas Panchayat Begun and Panchayat Samiti Begun for reasons aforesaid, remains final and intact. In the circumstances of the case, I shall leave the parties to bear their own costs throughout.