BEHARILAL Vs. BHURI DEVI

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the Division Bench of the Rajasthan High Court at Jaipur Bench, made on March 28, 1980 in LPA No. 147/69.

(2.) The undisputed facts are that the Government constituted a Mandi Committee duly nominating the members, at Neem-ka-Thana for sale of agriculture produce. The property was acquired by the Government. Allotments were made for construction of shops by traders. Plot Nos. A-1 and A-2 were allotted to the appellant on December 21, 1953 and on payment of consideration the patta was granted on June 21, 1954 and possession was delivered on the same day. The appellant also indisputably had raised construction on the plots. But in June 1956, the Committee appears to have impeded to proceed with further construction on the ground that one Jhutha Lal was carrying on construction. On that basis, on October 6, 1956, the patta was cancelled. On 7th October, 1956, Ram Gopal Gajanand, the husband of Bhuri Devi, the first respondent herein, made two successive applications. On the basis thereof, two plots came to be allotted to him on October 8, 1956 and possession also was given to him by beat of drum. This led to the filing of proceedings under Section 145, Cr. P.C. at the instance of Ram Gopal. Ultimately, proceedings under Section 145 ended in a direction by the High Court in criminal revision to lay the suit. Consequently, the appellant filed civil Suit No. 3/59 in the Court of Senior Civil Judge, Jaipur on January 15, 1959 for possession and damages. The respondent-defendants filed the written statement on March 31, 1959 admitting the allotment of the land in favour of the appellant, but justified that the same came to be cancelled according to the rules and allotment was made in favour of Ram Gopal. The trial Court framed necessary issues and recorded the finding that cancellation of patta in favour of the appellant and allotment of patta in favour of Ram gopal was bad in law. The appellant was in possession of the property. The Mandi Committee was not justified in cancelling the grant of patta and allotting the land to Ram Gopal. On that basis, the trial Court decreed the suit. On that basis, the trial Court decreed the suit. On appeal, the main point addressed was on the legality of the cancellation of the patta granted in favour of the appellant and the grant of patta in favour of Ram Gopal. The learned single Judge upheld the findings of the trial Court holding that the cancellation of patta granted in favour of the appellant is bad in law and equally upheld the finding that the grant of patta in favour of respondent was bad in law. In the Letters Patent Appeal, the only question argued by the learned counsel appearing for the respondent before the Division Bench was as to the non-execution of the patta in compliance of Article 299 of the Constitution. The Division Bench upholding the contention, set aside the judgment and decree of the trial Court and that of the first appellate Court and dismissed the suit. Thus, this appeal by special leave.

(3.) Shri D.D. Thakur, learned senior counsel appearing for the appellants, contends that in view of the finding recorded by the trial Court as upheld by the single Judge that the appellant was in possession of the property, he is entitled to the decree for possession. The suit based on possessory title is, therefore, valid in law. He contends that Rules made by the Mandi Committee for allotment of the land were duly approved by Rajpramukh; the Tehsildar was empowered under Rule 5 to grant patta in favour of the allottee; the Tehsildar accordingly had granted the patta to the appellant; therefore, the grant is valid in law, though it was not executed in the manner contemplated by Article 299 of the Constitution. The appellant having paid the consideration and was put in possession and also having constructed shops up to plinth level, the non-compliance of execution of the deed in the letter and spirit of Article 299 does not take away the right of the appellant to be in legal and valid possession of the property. In support thereof, he placed reliance on Nair Service Society Ltd. v. Rev. Father K.C. Alexander, (1968) 3 SCR 163 : (AIR 1968 SC 1165), Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 SCR 817 : (AIR 1954 SC 236), M/s. Davecos Garments Factory v. State of Rajasthan, AIR 1971 SC 141 and M. Mohammad v. Union of India, AIR 1982 Bombay 443. He also contends that the respondent had not pleaded invalidity of the patta violating Article 299 of the Constitution. Therefore, the plea could not be permitted to be raised for the first time in the Letter Patents Appeal. In support thereof, he relied upon the decision of this Court in Nirod Baran Banerjee v. Dy. Commissioner of Hazaribagh, (1980) 3 SCC 5 : (AIR 1980 SC 1109). He contends that the appellant had constructed the shops; he was in possession and the finding that he is in possession would aid his right to seek possession even if he was wrongfully dispossessed by the respondent who has no better title than the appellant.