Tehsil Baseri, District Dholpur v. All residents of Kayastha Para Bari, District Dholpur

Judgment

1. The present second appeal has been filed on behalf of the appellants under Section 100 of the Civil Procedure Code, 1908 ('CPC') against the judgment and decree dated 27.11.2001, passed by learned Additional District Judge, Dholpur in civil regular appeal No.36/1998, whereby the appeal filed by the

defendant/appellants was dismissed by way of upholding the judgment and decree dated 24.11.1993, passed by learned Munsiff, Bari, District Dholpur in civil suit No.31/1993 (46/1984), whereby the learned Trial Court decreed the suit for declaration and permanent injunction filed by the plaintiff/respondents.

2. Brief facts giving rise to the present second appeal are that on 18.12.1984, the plaintiff/respondents filed a suit for declaration and permanent injunction in respect of a suit property situated at Kayastha Para, Bari while stating that the suit property described as ABCDEFG in the map annexed as Ex.-1 with the plaint is in possession of the plaintiff/respondents. From the time of their ancestors, out of the said land, the property measuring 30x20 feet was purchased by their predecessor vide registered sale deed on

03.01.1964 from Babu s/o Bucha Ram and the rest part of the land is in possession of the plaintiff/respondents from the time of his ancestors i.e. 03.01.1964 wherein the plaintiff/respondents used to tie their cattle and used to keep various articles, thus, the land was in possession of the plaintiff/respondents. The plaintiff/respondents alleged that defendant/appellant Nos.2 to 3 wanted to dispossess the plaintiff/respondents forcibly; therefore, [2025:RJ-JP:27606] (3 of 9) [CSA-76/2002] on 30.09.1981, proceedings under Section 145 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') were initiated, and the property was attached. It was further stated by the plaintiff/respondents that defendant/appellant Nos.2 to 6 wanted to purchase the said land from Municipal Corporation; therefore, plaintiff/respondents filed the suit for declaration and permanent injunction and prayed that the plaintiff/respondents may be declared owners of the suit property as described in para No.2 of the plaint and shown with map (Ex.1) mark with ABCDEFG and, further prayed that defendant/appellants may be restrained not to dispossess the plaintiff/respondents forcibly. Further, the Nagar Palika, Mandal Badi (hereinafter referred to as the "Nagar Palika") may be restrained from selling/alienating the suit property to defendant/appellant Nos.2 to 6.

3. That on 12.07.1985, the present defendant/appellants filed the written statement to the suit, denying the averments made in the suit and submitted that the plaintiff/respondents is not having possession over the entire suit property, therefore, the plaintiff/respondents is not entitled to any relief as claimed in the suit property and prayed for dismissal of the suit.

4. The Nagar Palika filed a separate written statement to the suit on 10.09.1985 and denied the averments made in the suit. In the written statement, Nagar Palika took the stand that part of the land in dispute, being a Nazul Land, belongs to the Nagar Palika and the plaintiff/respondents are not the owners of the said property and it was further stated that Nagar Palika is fully competent to sell/alienate the said property, accordingly, prayed for dismissal of the suit. [2025:RJ-JP:27606] (4 of 9) [CSA-76/2002]

5. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:- 1- D;k okn i= ds [k.M&2 esa of.kZr Hkwfe [k.M] tks okn i= ds lkFk layXu ekufp= esa A, B, C, D, E, F, G ls n’kkZ;k x;k gS o yky jax ls jaxk x;k gS] oknhx.k ds LokfeRo ,oa vf/kiR; dk gS \ 2- vuqrks" kA

6. Thereafter, in order to substantiate the averments made in the plaint, the plaintiffs examined PW-1 Anil Kumar, PW-2 Chunni Lal, PW-3 Shankar Lal, PW-4 Mool Chand, PW-5 Ram Dayal, and PW-6 Akbar and produced documents Ex.1 to Ex.19 including Ex.1- site plan of disputed land, Ex.2- sale deed dated

03.01.1964, Ex.3- Map attached with sale deed, Ex.4- Order dated

09.06.1987 passed by SDM, Bari, Dholpur, Ex.5- Order dated

02.11.1987 passed by ADJ, Dholpur, Ex.6- memo in regard rendering possession, Ex.7- site plan, Ex.8- Notice for cancellation of sanction for construction dated 31.08.1982, Ex.9- Notice u/s 271 of the Rajasthan Municipality Act,1959 dated 04.11.1982, Ex.10- Post Office receipt, Ex.11- Acknowledgment Receipt, Ex.12- Notice u/s 271 of the Rajasthan Municipality Act, 1959 dated

03.10.1984, Ex.15- Reply to the notice, Ex.16- Site Plan submitted by Municipality, Ex.17- Report FIR, Ex.18- Statement Ram Prasad, Ex.19- Application by Ajmer Singh to Nagar Palika.

7. In rebuttal, the defendant/respondent No.7 examined DW-1 Hamid Ali, and the defendants/appellants examined D2W1 Kishan Lal, D2W2 Ram Prasad, D2W3 Ajmer Singh, and D2W4 Mahesh Chandra Sharma.

8. After hearing arguments of learned counsel for the respective parties, the learned Trial Court vide judgment and decree dated 24.11.1993 decreed the suit filed by the [2025:RJ-JP:27606] (5 of 9) [CSA-76/2002] plaintiff/respondents. The plaintiffs were declared as owners of the suit land described as ABCDEFG in the map annexed to the plaint, and also restrained the defendant/appellants from creating a hindrance in the peaceful use and occupation of the plaintiff/respondents, and not to dispossess the plaintiff forcibly. The Nagar Palika was also restrained from selling/alienating the suit property to the present appellants.

9. Being aggrieved by the said judgment and decree, the present defendant/appellants, as well as the Nagar Palika, preferred a joint appeal, Civil Appeal No.36/1998, and after hearing arguments of the appellants, the learned Appellate Court dismissed the appeal.

10. Being aggrieved of which, S.B. Civil Second Appeal No.502/2007 was preferred by Nagar Palika Mandal, Badi titled as "Nagar Palika, Mandal, Bari v. Ram Shree & Ors." and the said second appeal was rejected by this Court vide order dated

09.08.2007, wherein, this Court has observed that the issue involved in the present case are related to questions of fact and there is a concurrent finding of fact recorded by both the Courts below, which cannot be interfered with by this Court in second appeal filed under Section 100 of the CPC and no substantial question of law are involved in this second appeal and the same is accordingly, dismissed. Meaning thereby, against the same impugned award, the second appeal preferred by the Nagar Palika was dismissed.

11. The present second appeal has been admitted by this Court on 10.11.2006, prior to dismissal of the S.B. Civil Second Appeal No.502/2007 vide order dated 09.08.2007. [2025:RJ-JP:27606] (6 of 9) [CSA-76/2002]

12. The submission of the learned counsel for the defendant/appellants herein is that both the learned Courts below seriously erred in decreeing the suit merely on the basis of fact that the possession of the suit property was handed over to the plaintiff/respondents under the proceedings initiated under Section 145 Cr.P.C., therefore, the impugned judgment and decree suffers from the perversity and may kindly be set aside.

13. Per contra, learned counsel for the plaintiff/respondents vehemently opposes the said submissions and submits that in view of the rejection of the earlier second appeal filed by Nagar Palika in S.B. Civil Second Appeal No.502/2007, the present second appeal on the same set of facts is not maintainable. He further submits that both the Courts below, after due examination of the pleadings of the parties and evidence available on record, categorically recorded a finding that the plaintiff/respondents are the owners and issued a prohibitory injunction against the defendant/appellants, and submits that the present second appeal may kindly be dismissed.

14. Heard and considered the submissions made by learned counsel for the parties and perused the material available on record.

15. From a bare perusal of the record, it is revealed that both the Courts below have decreed the suit for declaration and permanent injunction while considering the evidence of the parties in detail and has held that the plaintiff/respondents are in possession of the suit property since long and restrained the defendant/appellants not to dispossess the plaintiff/respondents [2025:RJ-JP:27606] (7 of 9) [CSA-76/2002] forcibly and also restrained Nagar Palika not to sell/alienate the suit property.

16. The submission of learned counsel defendant/appellants is that both the Courts below have erred in granting a decree and not considering the fact that the plaintiff/respondents have acquired possession of the suit property under the proceedings of Section 145 Cr.P.C., therefore, the suit ought not to have been decreed.

17. From the cross-examination of Kishan Lal (D2W1) dated

02.05.1992, it is clear that he has admitted that "the ownership of the land in dispute belongs to the Nagar Palika". Similarly, Ajmer Singh (D2W3) also stated that the ownership of the disputed land vests in the Nagar Palika. Further, as per Ex.-4, the order dated

09.06.1987, the SDM has directed the SHO, Bari, to hand over the possession of the disputed land to Anil Kumar, Shantilal, Prem Devi and Ramdai, and at the same time restrained Appellant No.1- Kishan Lal, Karan, and Rame not to create hindrance in use and occupation, and further to maintain peace.

18. Further, from a bare perusal of the record, especially Ex. 4 & 5, it is clear that proceedings under Section 145 Cr.P.C. were culminated in favour of the plaintiff/respondents and the present appellants herein have challenged the order dated 09.06.1987 by filing a criminal revision No.21/1987 before the Court of Additional District and Sessions Judge, Dholpur and learned Additional District and Sessions Judge, Dholpur vide order dated 02.11.1987 (EX-5), has dismissed the revision petition filed by the present appellants. Admittedly, no further remedy was availed against the order dated 02.11.1987; consequently, finding that plaintiff was [2025:RJ-JP:27606] (8 of 9) [CSA-76/2002] put in possession after the Order dated 09.06.1987 attain finality and thereafter, the appellant has not filed any title or possession suit to reclaim the said possession while asserting his right.

19. In view of the aforesaid facts, the arguments advanced by learned counsel for the defendant/appellants lack merit and cannot be accepted.

20. It is also pertinent to mention here that the judgment and decree passed by the learned Trial Court was challenged by the defendant/appellants as well as the co-appellant- Nagar Palika, Mandal, Bari by preferring a common appeal No.36/1998 and the said appeal was dismissed on 27.11.2001 against which, one of the co-appellants- Nagar Palika has preferred the S.B. Civil Second Appeal No.502/2007 and the said second appeal was dismissed as having not found any substantial question of law involved in the appeal. Thus, the present appeal is barred by the principle of constructive res-judicata as well. Therefore, the substantial questions of law framed by this Court vide order dated 10.11.2006 is decided in favour of the plaintiff/respondents.

21. Even otherwise, from a bare perusal of the record of the case, it is revealed that both the Courts below have concurrently recorded a finding that the plaintiff/respondents are in possession of the property and passed an injunction order restraining the present defendant/appellants not to create hindrance in the peaceful use and occupation of the plaintiff/respondents.

22. The issues involved in the present appeal relate to questions of fact, and there is a concurrent finding of fact recorded by both the Courts below, which cannot be interfered with by this Court under Section 100 of CPC. [2025:RJ-JP:27606] (9 of 9) [CSA-76/2002]

23. In that view of the matter, the present second appeal fails and is hereby dismissed.

24. All pending application(s), if any, shall stand disposed of. DEEPA-22 (MANEESH SHARMA),J