BENCH AT JAIPUR v. State Of Rajasthan Through Collector, Ajmer

Judgment

2. State Of Rajasthan Through Collector, Ajmer. District Forest Officer, Forest Department, Jaipur Road, Ajmer.

3. Ajmer Development Authority, Ajmer, Through Secretary, Opposite Revenue Board, Ajmer. ----Respondents For Appellant(s) : Mr. Rahul Agarwal with Ms. Priyanka For Respondent(s) : HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 24/03/2025

Order

1. Instant S.B. Civil Second Appeal is preferred by appellant- plaintiff aggrieved from judgment dated 27.02.2025 in Civil Regular Appeal (CIS) No.126/2021 (19/2017) (01/2014) passed by learned Additional District Judge No.5, Ajmer whereby on an appeal preferred by respondent Nos. 1 and 2, judgment and decree dated 23.11.2013 in Civil Suit No.01/2007 passed by learned Civil Judge (Junior Division) Ajmer City (East), Ajmer was set aside.

2. Learned counsel for appellant while relying upon grounds of appeal submits that plaintiff is in peaceful possession of suit property, wherein he constructed boundary wall along with a premises, but on apprehension of dispossession by defendant [2025:RJ-JP:15179] (2 of 12) [CSA-183/2025] No.2, the plaintiff has filed a civil suit for injunction and same was decreed in favour of plaintiff. He further submitted that the land in question was part of Khasra No.9485 Rakba (454-01-04) Kism Pahari Thok Maliyan and registered in the name of UIT, Ajmer (now upgraded to Ajmer Development Authority). He further submitted that the Patta issued by the defendant No.3 was registered and all charges were deposited by appellant-plaintiff. He also referred the approved construction plan and submitted that the land is not part of any forest area, but defendant No.2 is continuously trying to dispossess the plaintiff, therefore, plaintiff was forced to file a civil suit. He further submitted that the plaintiff has examined himself and PW-2-Priya Bhargava and exhibited 19 documents, whereas, no evidence was submitted by the defendants.

3. Learned counsel for appellant further submitted that based on documentary and oral evidence, the Trial Court has decided issues in favour of plaintiff and as a result of decision, the suit was decreed in favour of plaintiff. He further submitted that the defendant Nos. 1 and 2 have filed an appeal before the learned District Judge and same was transferred to learned Additional District Judge. He referred the findings recorded by Appellate Court and submitted that without an application under Order XLI Rule 27 CPC, a notification dated 11.08.1940 was relied upon by the Appellate Court. He submitted that the notification is not part of the record and same was not proved by evidence. He also referred the reversal of findings by Appellate Court and submitted that once UIT has issued a Patta and later approved plan for [2025:RJ-JP:15179] (3 of 12) [CSA-183/2025] construction in favour of plaintiff, the plaintiff has a case for consideration by this Hon’ble Court. He further submitted that the perversity is apparent on record and substantial question of law are suggested in Para “L” of memo of appeal.

4. Heard learned counsel for appellant and perused the entire record and also considered the photographs as shown by appellant-plaintiff.

5. The facts giving rise to file instant appeal are that the plaintiff (appellant herein) has filed a civil suit for injunction against respondents on the grounds that plaintiff was issued a Patta by defendant No.3 on 18.08.2003 and a building plan was approved on 03.11.2006/03.07.2006. The plaintiff is in possession on the suit property, and apprehensive of dispossession by defendant No.2 has sought an injunction against defendant Nos. 1 and 2.

6. After receipt of notice, defendant Nos. 1 and 2 have filed written statement denying claim of plaintiff and pleaded that the disputed property is part of reserve forest area and the registration in favour of plaintiff is liable to be canceled. The defendant No.3 has raised objection about non-service of notice under Section 98, but supported the case of plaintiff and admitted that a Patta was issued on the basis of regularization.

7. On the basis of pleadings of the parties, three issues were framed. Two witnesses were examined by plaintiff and 19 documents were exhibited whereas defendants have not submitted any evidence. Learned Trial Court has decided issue [2025:RJ-JP:15179] (4 of 12) [CSA-183/2025] Nos. 1 and 2 in favour of plaintiff and as a result, decreed the suit in the following manner:- ^^izfroknhx.k muds deZpkjhx.k] vf/kdkjhx.k] Bsdsnkj vkfn okn i= dh en la 1 esa of.kZr lEifRr la 1 o 2 esas dksbZ fdlh Hkh izdkj dh rksMQksM O;o/kku ugha djsa] u gh fdlh vU; ds tfj;s djkosa mDr lEifRr;ksa ls oknh dks tcju csn[ky ugha djsa] u gh fdlh vU; ls djkosa ,oa Lohd`r ekufp= ds vuqlkj fuekZ.k djokus esa dksbZ fdlh izdkj dh ck/kk] rksMQksM ugha djsas u gh fdlh vU; ls djkosaA^*

8. A regular first appeal under Section 96 of CPC was filed by defendant Nos. 1 and 2 on the ground that the land in question is part of reserve forest area and same was declared as reserved forest vide notification dated 11.08.1940 issued by Chief Commissioner, Ajmer Merwara. Defendant No.2 has also pleaded that the encroachment made by plaintiff was removed on

19.10.2005, but the plaintiff again trying to raise construction after encroachment.

9. A perusal of facts of the case clearly indicate that the plaintiff has claimed that a Patta was issued by Urban Improvement Trust, Ajmer on 18.08.2003, as the land in question belongs to Khasra No.9485 Rakba 454-01-04 Kism Pahari Thok Maliyan. The admission of defendant No.3 in its written statement also indicates that the land was regularized by defendant No.3. It indicates that the UIT has regularized an encroachment of plaintiff.

10. The facts narrated in pleadings of plaintiff and reply of defendant No.3 clearly shows that the plaintiff has not disclosed the source from whom he acquired the land. The admission of defendant No.3 makes it clear that the encroachment of plaintiff was regularized, meaning thereby, the plaintiff was an encroacher on the land, but same was regularized by the Urban Development Body. [2025:RJ-JP:15179] (5 of 12) [CSA-183/2025]

11. Since, the suit was filed by plaintiff and he sought injunction against Forest Department and in the instant case, the forest officials have not defended their case before the Trial Court. The counsel appointed by the Government remained absent after filing written statement. It shows that the system of appointment of counsels in State of Rajasthan is defective. The counsels, who are appointed by the State was irresponsible, careless and acted like self-propelled individual. The Officer In-charge of the case before learned Trial Court and District Forest Officer have also not protected the interest of Forest Department before the Trial Court.

12. After the decree, an appeal is preferred and it was pleaded that the land in question was declared as reserved forest by notification dated 11.08.1940. The basic objection raised by the counsel for appellant is that without any application under Order XLI Rule 27 of CPC and tendering the notification in evidence, same cannot be relied upon by the Appellate Court.

13. Section 57 of Indian Evidence Act, outlines the facts of which the Court must take judicial notice, it means the facts which are so well-known and established that they do not require formal proof. Section 57 of Indian Evidence Act is reproduced as under:- [(1) All laws in force in the territory of India;] (2)All public Acts passed or hereafter to be passed by Parliament [of the United Kingdom] and all local and personal Acts directed by Parliament [of the United Kingdom]to be judicially noticed; (3)Articles of War for [the Indian] Army, [Navy or Air Force] (4)[The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the Legislature established under any laws for the time being in force in a Province or in the State] [2025:RJ-JP:15179] (6 of 12) [CSA-183/2025] (5)The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland; (6)All seals of which English Courts take judicial notice; the seals of all the Courts in India and of all Courts out of [India] established by the authority of the [Central Government or the Crown Representative]; the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorised to use by [the Constitution or an Act of Parliament of the United Kingdom or an] Act or Regulation having the force of law in [India] (7)The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in [any Official Gazette"; (8)The existence of title, and National Flag of every State of Sovereign recognized by [the Government of India]; (9)The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette; (10)The territories under the dominion of [the Government of India]; (11)The commencement, continuance and termination of hostilities between [the Government of India] and any other State or body of persons; (12)The names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorised by law to appear or act before it; (13)The rule of the road [on land or at sea].In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

14. A perusal of aforesaid clearly indicate that existence of law, official act including notification, Gazettes and official records are examples of some of the facts requiring no proof.

15. Herein, the Appellate Court has noticed that the Trial Court has ignored notification dated 11.08.1940 whereby the land in [2025:RJ-JP:15179] (7 of 12) [CSA-183/2025] question was declared as reserved forest. The plaintiff has not raised any objection about genuineness or authenticity of notification dated 11.08.1940. The plaintiff remain silent before the First Appellate Court about the notification, therefore, he has no right to build a case in second appeal about the notification, for which a Court of law can take judicial notice.

16. Learned Appellate Court has also placed reliance upon judgment of Hon’ble Supreme Court in case of T.N. Godavarman Thirumulkpad Vs. Union Of India & Ors. AIR 1997 SC 1228 (Civil Writ Petition No.202/1995 order dated

12.12.1996).The judgment of Hon’ble Supreme Court was also considered by the Appellate Court while considering the case of defendant Nos. 1 and 2.

17. Section 78 of Indian Evidence Act deals with the proof of other official documents including notifications and same is reproduced as under:- The following public documents may be proved as follows:–– (1) Acts, orders or notifications of [the Central Government] in any of its departments, [or of the Crown Representative] or of any State Government or any department of any State Government, –– by the records of the departments, certified by the head of those departments respectively, or by any document purporting to be printed by order of any such Government [or, as the case may be, of the Crown Representative]; (2) the proceedings of the Legislatures, --by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed [by order of the Government concerned]; (3) proclamations, orders or regulations issued by [Her Majesty] or by the Privy Council, or by any department of [Her Majesty’s Government, –– by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s Printer; (4) the Acts of the Executive or the proceedings of the Legislature of a foreign country, [2025:RJ-JP:15179] (8 of 12) [CSA-183/2025] –– by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some [Central Act]; (5) the proceedings of a municipal body in [a State], –– by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body; (6) public documents of any other class in a foreign country, –– by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of [an Indian Consul] or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

18. A perusal of aforementioned provision of law and notification also reflect that notification dated 11.08.1940 is a public document within the meaning of Section 74 of Indian Evidence Act. A formal proof of such a document is neither needed nor required.

19. The plaintiff has brought its own case, and the facts mentioned by plaintiff and the written statement submitted by defendant No.3 clearly indicate that the encroachment of plaintiff (appellant herein) was regularized and a Patta was issued after regularization. The plaintiff has failed to show his source of acquisition of land. If the plaintiff has no source of acquisition then he cannot succeed against defendant No.2 (Forest Department) as the land was declared as reserved forest by notification dated

11.08.1940. Thus, the duty lies upon the plaintiff to establish the facts and if the Trial Court has committed an error then plaintiff cannot raise this ground in second appeal.

20. The case of plaintiff is dependant upon the Patta issued by UIT and same is just a regularization of an encroachment. Herein, when the land belongs to Forest Department and same was [2025:RJ-JP:15179] (9 of 12) [CSA-183/2025] declared as reserved forest in 1940 then without notice to Forest Department, the UIT has no authority to regularize the encroachment under any of its campaign. The order of regularization dated 18.08.2003 is passed after judgment dated

12.12.1996 in T.N. Godavarman Thirumulkpad Vs. Union Of India & Ors. (supra) by Hon’ble Supreme Court. Thus, appellant-plaintiff has no right to seek injunction on a land declared as reserved forest way back in 1940.

21. The appellant-plaintiff has failed to file any of document which can show that the land in question was ever de-reserved from forest to general land. The Collector of Ajmer has no authority to change or transfer the forest land to UIT or any other private individual.

22. Having considered the grounds raised by appellant and also the judgment of the Courts below, I am of considered view that the grounds does not give rise to any of substantial question of law. The Appellate Court was well competent under Section 96 of CPC to consider fact and law and decide the issue of fact. The law of evidence also provides for taking of judicial notice of Government notifications and same does not require any formal proof before being relied by any Court of law.

23. In view of aforesaid, the appellant has failed to show his case for admission as mandated under Section 100 of CPC. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on [2025:RJ-JP:15179] (10 of 12) [CSA-183/2025] facts and in second appeal normally cannot re-appreciate the evidence or facts.

24. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

25. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under:

13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 [2025:RJ-JP:15179] (11 of 12) [CSA-183/2025] CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273.

16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. [2025:RJ-JP:15179] (12 of 12) [CSA-183/2025] c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.

26. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

27. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

28. In view of discussion made hereinabove, the instant second appeal sans merit and same is liable to be dismissed.

29. As a result, the instant second appeal by appellant-plaintiff is hereby dismissed.

30. Misc. application, if any, stands disposed of. GAURAV /20 (ASHOK KUMAR JAIN),J