RAMJAN BAKSH Vs. NAGAR PALIKA, CHAKSU

JUDGEMENT

(1.) THE plaintiff -appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 20.7.2010 passed by the Additional District Judge No. 2, Jaipur District, Jaipur in Civil Regular Appeal No. 4/2010 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 28.4.2010 passed by the trial Court i.e.

(2.) Additional Civil Judge (Junior Division) No. 5, Jaipur District, Jaipur in Civil Suit No. 88/2009 whereby the learned trial Court dismissed the suit for permanent injunction filed by the plaintiff -appellant. Brief relevant facts for the disposal of this appeal are that appellant filed a suit for permanent injunction against the respondent on 23.9.2008 with the averments that on the south side of his allotted and constructed house there is a plot of land in which the appellant has ownership and possessory rights since the time of his ancestors i.e. for last 40 years on which house of the appellant was situated but the same was destroyed in the flood of the year 1981. It was further averred that the appellant is in the use and occupation of this plot of land as he stores his fire -woods and stones on it and he has also grown seven huge babool trees on it. It was further submitted that respondent has no right in the disputed land but it is intending to dispossess the appellant from it. It was also averred that appellant has access to his allotted and constructed house through this land only. It was prayed that respondent may be restrained by way of permanent injunction not to interfere in the peaceful use and occupation of the land in dispute and not to dispossess him from it. In the written statement it was averred by the respondent that a "Patta" was granted to the appellant on 27.2.2002 under the provisions of the Rajasthan Government Grants Act 1961 for a piece of land on which the appellant has constructed his house but land in dispute which is situated to the south side of this house does not belong to appellant and he does not have possession on it. It was also averred that the land in dispute vests in the respondent -Municipality and it is a part of a public way and a public chowk and is for the use of general public. It was further averred that the land in dispute is a vacant land and on it a CC Road has already been constructed before the institution of the suit. The averments made by the appellant in the plaint were specifically denied by the respondent and it was also averred that in the garb of present suit the appellant intends to trespass on the land in dispute. In the additional pleas it was pleaded that before the institution of the suit notice required under Section 271 of the Rajasthan Municipality Act has not been served upon the respondent and in absence of that the suit is not maintainable. It was further objected that without seeking relief of declaration mere suit for permanent injunction is not maintainable. On the basis of pleadings of the parties necessary issues were framed. In support of his case appellant produced oral as well as documentary evidence whereas respondent did not produce any evidence. The learned trial Court after hearing both the parties vide judgment and decree dated 28.4.2010 dismissed the suit. Under Issue No. 1 it was found by the Court that the appellant has failed to prove his title as well as settled and legal possession. Under Issue No. 2 it was held that as the appellant has failed to prove his title and possession on the disputed land and he has not sought the relief of declaration and the respondent being the true owner of the land in dispute, a decree for permanent injunction cannot be passed in favour of the appellant. Feeling aggrieved, the appellant filed appeal under Section 96 CPC before the first appellate Court and the same was dismissed vide impugned judgment and decree dated 20.7.2010. The first appellate Court upheld and affirmed the each and every finding arrived at by the trial Court. Still dissatisfied, the plaintiff -appellant is before this Court by way of this civil second appeal. Assailing the judgments passed by both the Courts below learned counsel for the appellant has submitted as below:

(3.) ON the other hand learned counsel for the respondent by supporting the judgment and decree passed by both the Courts below submitted that the appellant came with a specific case that he is title holder of the land in dispute and is also in long possession of it but he has failed to prove both of his contentions and the Courts below have concurrently found that the appellant has failed to prove his title as well as possession and such finding of fact cannot be interfered in this second appeal. It was also submitted that under the relevant provisions of the Rajasthan Municipalities Act there is presumption that all lands situated within the limit of a Municipal area vest in the Municipality unless contrary is proved by the person claiming title over it but in the present case the appellant has failed to prove his title over the land in dispute and, therefore, the Courts below have rightly held that the land in dispute vests in the respondent. It was further submitted that there is no pleading about acquiring of title in the suit property by adverse possession and in absence of that both the Courts below have rightly held that the appellant has failed to prove his title over the land in dispute by way of adverse possession. It was also submitted that Patta (Ex. 3) was issued by the respondent on the basis of site plan (Ex. 2) filed by the appellant and in Ex. 2 it was mentioned that in the south side of the land for which the Patta has been applied, a land is situated which is in the possession of the appellant and that fact was repeated in the Patta (Ex. 3) also but that does not mean that the respondent -Municipality has admitted that over the land in dispute the appellant has ownership and/or possessory right. In the facts and circumstances of the case, it cannot be said that the Courts below have not considered the evidence available on record in a proper perspective or they have misread it. It was further submitted that both the Courts below have committed no illegality or perversity in dismissing the suit filed by the appellant and no substantial question of law is involved in the appeal requiring further consideration of this Court.