Kajod Mal v. Nagar Parishad Sawai Madhopur

Judgment

1. S.B. Civil Second Appeal No. 555/1998 is filed against judgment dated 22.07.1998 in civil regular appeal No. 44/1996 [2025:RJ-JP:13112] (2 of 10) [CSA-555/1998] passed by learned District Judge, Sawai Madhopur whereby on an

appeal preferred by respondent-defendant judgment and decree dated 20.08.1996 in civil suit No. 43/1991 titled as ‘Kajod Mal Vs. Nagar Parishad Sawai Madhopur’ passed by learned Additional Civil Judge (Junior Division), Sawai Madhopur was set aside and suit of plaintiff-appellant was dismissed.

2. S.B. Civil Second Appeal No. 557/1998 is filed against judgment dated 22.07.1998 in civil regular appeal No. 39/1996 passed by learned District Judge, Sawai Madhopur whereby on an appeal preferred by respondent-defendant judgment and decree dated 01.08.1996 in civil suit No. 44/1991 titled as ‘Bajrang Lal Vs. Nagar Parishad Sawai Madhopur’ passed by learned Additional Civil Judge (Junior Division), Sawai Madhopur was set aside and suit of plaintiff-appellant was dismissed.

3. Since both the appeals are identical in nature raising common question of law, therefore, they were tagged together and decided with common order.

4. While considering S.B. Second Appeal No. 555/1998 on

07.12.1999 following substantial question of law was framed by this Court:- (i) Whether, a piece of land allotted by the Gram Panchayat on 12.05.1965 which was within the competence and jurisdiction, can be said to be illegal if later on vide order dated

27.09.1965 the area in question became within the jurisdiction of Municipal Board? [2025:RJ-JP:13112] (3 of 10) [CSA-555/1998] (ii) Whether the finding of learned appellate Court in observing that there is possibility of allotting land on later date by Gram Panchayat is without material on record and such judgment and decree which is based on surmises and conjectures are liable to be quashed? (iii) Whether, once the Gram Panchayat allotted the land in question to the appellant and permission for construction was granted according to the rules, the same is legal, even later on the area in question transferred to the Municipal Board?

5. While considering S.B. Civil Second Appeal No. 557/1998 following substantial question of law were framed on 03.01.2001. (i) Whether a piece of land allotted by the Gram Panchayat on 12.05.1965 which was within, the comptence and jurisdiction, can be said to be illegal if later on vide order dated 27.09.1965, the area in question comes within the jurisdiction of Municipal Board? (ii) Whether the finding of learned appellate Court in observing that there is possibility of allotting land on later date by Gram Panchayat is without material on record and such judgment and decree which is based on surmises and conjectures are liable to be set aside?

6. Learned counsel for appellant while relying upon grounds raised in appeal would submitted that land in question was within the jurisdiction of Village Panchayat, Sherpur before being merged in the area of Municipality latter in Nagar Parishad, Sawai Madhopur. He further submitted that the land was allotted by [2025:RJ-JP:13112] (4 of 10) [CSA-555/1998] Village Panchayat by proposal dated 12.05.1965 and same is proved from oral evidence of plaintiff and Sarpanch by tendering original Patta in evidence. He also submitted that Village Panchayat was having full authority to allot Aabadi land and within the authority, this Aabadi land was allotted by Village Panchayat and further a plan was sanctioned for construction. He also referred the findings recorded by learned Trial Court and submitted that the Appellate Court without considering the evidence on record has reversed the findings. He further referred the evidence on record and submitted that the plaintiffs were able to establish that from 1965 to 1991 they have maintained the possession and at no point of time the title and ownership of plaintiff was challenged by respondent-defendant. He also referred the conclusion drawn by the Appellate Court and submitted that the conclusion was based on surmises and conjectures as same is not part of pleadings of defendant and same is not based on any legal evidence. At last, he submitted that for no reason the Appellate Court has set aside a reasoned finding recorded by the Trial Court.

7. Aforesaid contentions were opposed by learned counsel for respondent-defendant and submitted that the Patta was issued in back date and within one day the entire process of allotment and approval of plan was completed. He further submitted that the land in question is situated on highway and 75 feet on both sides from Central line the land belongs to highway. He also submitted that land in question belongs to municipality and it has vested in municipality after conversion of Panchayat into municipality. At [2025:RJ-JP:13112] (5 of 10) [CSA-555/1998] last, he submitted that the Appellate Court has considered the grounds raised by both the parties and there is no perversity in the order passed by the Appellate Court.

8. The ground gives rise to instant second appeals are that the appellant-plaintiff has filed a civil suit for permanent injunction on the ground that a piece of land was allotted by Village Panchayat, Sherpur on 12.05.1965 and price of land was deposited on very same day by the plaintiff. Later on 27.09.1965, the area of Village Panchayat Sherpur was converted (merged) into Municipal Area, Mantown Sawai Madhopur which has been upgraded to Municipal Council, Sawai Madhopur. The plaintiff has further averred that an earlier permission was granted by Village Panchayat for construction but the plaintiff has moved application for permission to raise construction but same was not granted by the defendant. The defendant has denied the averments made in plaint and raised a serious doubt about allotment of land to plaintiff. The defendant has further stated that the Village Panchayat has not handed over any record relating to disputed plot. The defendant had pleaded that after conversion of Panchayat area to Municipal area, the entire proceeding was conducted in back date by Sarpanch of Panchayat.

9. On the basis of pleadings of the parties 8 issues were framed. Two witnesses were examined by plaintiff and 3 documents were exhibited, in each of each, whereas two witnesses were examined and one document was exhibited by defendant in one case and one witness in another case. The Trial [2025:RJ-JP:13112] (6 of 10) [CSA-555/1998] Court after considering the facts on record has decided issue No.1 in favor of plaintiff and ultimately decreed the suit in favour of plaintiff. The defendants have filed an appeal under Section 96 of CPC and same was allowed by learned District Judge resulting in dismissal of civil suit filed by plaintiff (appellant herein). Hence, the second appeal.

10. Substantial question of law Nos. 1 to 3 in S.B. civil second appeal number 555/1998 and substantial question of law Nos. 1 and 2 in S.B. Second Appeal No. 557/1998 are related to each other but substantially the question of law framed by this Court were identical, therefore, we are deciding these questions altogether.

11. The appeal is preferred by appellant-plaintiff and issue No.1 was decided in favor of plaintiff by learned Trial Court. Learned Appellate Court has affirmed the findings on issue Nos. 2, 3, 4, 6 and 7 to set aside the findings recorded on issue Nos. 1 and 5. The Appellate Court considered the written statement filed by defendant wherein defendant have pleaded that there was no plot as claimed by plaintiff on site. The defendant has raised a doubt on the process of allotment and approval of construction plan on very same day and same is part of pleading of defendant. The main objection of learned counsel for appellant is that plaintiff has able to establish that on 12.05.1965, a Patta was issued in his favor. Learned Appellate Court has referred the Patta and observed that the Patta was issued on 12.05.1965 and construction was approved on very same day. The area wherein [2025:RJ-JP:13112] (7 of 10) [CSA-555/1998] the disputed plot is situated was included in notified area Mantown on 27.09.1965. There is a time gap of 4 and a half months.

12. In order to verify the contention of plaintiff, we have gone through the evidence of PW-1 (Kajod Mal) particularly cross examination. The admission of PW-1 (Kajod Mal) in civil suit No. 43/1991 clearly indicate that this witness was not able to name members and Deputy Sarpanch. The admission also indicate that the copy of decision is not filed on record. Similarly, the cross objection of PW-2 (Kalyan Mal), who was Sarpanch on 12.05.1965 shows that deputy Sarpanch was Heera Lal, area members were Bishan Lan and Prahalad whereas Secretary was Ramphool Bairwa. The admission of PW-2 also indicate that the record relating to disputed plot was not handed over to municipal body. The admission also indicate that application filed by plaintiff is not available on record.

13. Similarly, in civil suit No. 44/1991 Sarpanch-Kalyan Mal was examined as PW-1 and his admission also indicate that for disposal of any land a report of two Panch is taken before making a decision on the property. The admission also indicate that plaintiff was not in possession of disputed property at the time of disposal. The plaintiff was examined as PW-2 and his cross- examination indicate that he is not aware who purchased the property in his vicinity.

14. The evidence of plaintiff and supportive witness Kalyan Mal in both the civil suit clearly suggest that record of Village Panchayat was not handed over to the Municipal Committee after merger and [2025:RJ-JP:13112] (8 of 10) [CSA-555/1998] conversion on 27.09.1965. In both the cases, neither application form of plaintiff nor report of two members were produced to prove patta. The admission further suggested that plaintiff- appellant was not in possession on allotted plot before

12.05.1965. There is no document of handing over of possession to plaintiff by Secretary of Panchayat.

15. In civil suit No. 43/1991 DW-1 Mahesh Sharma and DW-2 Kajod Mal Sharma was examined by defendant whereas in civil suit No. 44/1991, DW-1 Kajod Mal was examined by defendant, we have gone through the evidence of defendant, in both the cases. Herein, in this case, it is apparent that the application filed by plaintiff is not available on the record. The report is required to be obtained from two members i.e. (Ward Punch) is also not available on record. It also indicate that Patta and map was signed by Sarpanch and not by Secretary or any other member who was present in the meeting of village Panchayat on 12.05.1965. The meeting of village Panchayat was attended by 8 persons but signature of no one is available on record. Herein, this case the cross examination of plaintiff and also of Sarpanch clearly raised a doubt about process of issuance of Patta issued favor of plaintiff. The main issue is conversion of village Panchayat into municipal area and after the conversion, the record relating to patta was not transferred to municipal body. It also indicate that the procedure a transfer of record as prescribed under the law was not followed, meaning thereby, there was no office record of issuance of Patta in pursuant to decision of Village Panchayat. The record relating to allotment of land is not filed to establish that the Patta was issued [2025:RJ-JP:13112] (9 of 10) [CSA-555/1998] by Village Panchayat, under the authority of local body. The cross examination of Sarpanch clearly suggest that an irregular process was adopted and same is sufficient to cast a doubt upon Patta. Herein, this case, the plaintiff was not able to establish his own fact and the trial court only on the basis of documents available on record has found that the plaintiff has prima facie case to procure injunction.

16. The Appellate Court on the basis of pleadings and evidence has set aside the finding recorded on issue Nos. 1 and 5. Herein, a suit for permanent injunction was filed by the plaintiff, only when the Municipal body (defendnt) has refused to grant him a permission for construction. The fact narrated by the plaintiff clearly suggests that on 12.05.1965, when the land was allotted, the permission for construction was also accorded by village Panchayat. Herein, the plaintiff has failed to establish that the amount recovered by Village Panchayat was deposited to States’ Exchequer. There is no official record submitted in support of Exs. 1 to 3 filed by plaintiff. The admission of Sarpanch is enough to dent the case of plaintiff, thus, the Appellate Court has not committed any error while setting aside the finding on issue Nos. 1 and 5. The Appellate Court has not traveled beyond pleadings and record while setting aside findings.

17. In view of aforesaid, the authority of Village Panchayat about disposal of land in accordance with law is not established and the duty lies upon the plaintiff to establish the fact, that he acquired suit property in accordance with procedure prescribed. If [2025:RJ-JP:13112] (10 of 10) [CSA-555/1998] disposal of land was in accordance with law, then only after conversion of Panchayat area to municipal area, the plaintiff has a right to bound municipal body for the decision taken by the Village Panchayat. The admission of plaintiff indicate that no construction was raised despite permission by Village Panchayat on

12.05.1965. The plaintiff has claimed that only few masonary stones were there to establish the possession, but municipal body has denied the possession of plaintiff. Herein, on the basis of rock stones, no one can claim his possession, therefore, the Appellate Court has rightly decided Issue Nos. 1 and 5.

18. The findings recorded by the Appellate Court is based on oral and documentary evidence and same is not contrary to the record of the case. There is no perversity in the conclusion drawn by the Appellate Court while exercising authority under Section 96 of CPC.

19. In view of discussions made hereinabove, the substantial question of law as framed hereinabove are answered in negative, therefore, the appeals are liable to be dismissed.

20. In the wake of above discussion and findings, the present appeals Nos. 555/1998 and 557/1998 are hereby dismissed with pending application(s), if any.

21. No order as to costs. MONU /189-190-S (ASHOK KUMAR JAIN),J