SANWAR MAL LOHIA Vs. GHANSHYAM KANWAR

JUDGEMENT

(1.) Appellant-plaintiffs have preferred this first appeal arising out of a civil suit No.69/1970 filed by appellant-plaintiff way back on 8/8/1970 seeking declaration of ownership and permanent injunction in respect of land detailed in para 7 of the plaint, which has been dismissed vide impugned judgment dtd. 19/8/1980, by the Additional District Judge, No.1, Jaipur City.

(2.) The relevant facts as culled out from the record are that the appellant plaintiff instituted the present civil suit inter alia claiming that he is a property dealer and in the month of May-June, 1965, Rao Bhagwat Singh, the erstwhile Jagirdar Thikana Dooni, made a proposal to him that his house and land situated in Chaukri Modikhana Jaipur has been acquired by the Jaipur State and according to the award of the Land Acquisition Officer passed in the year 1944, in lieu of acquisition, some amount in cash has already been paid but land measuring 7133 yards in Jaipur within vicinity of 10 miles was yet to be allotted, therefore, Rao Bhagwat Singh proposed to the plaintiff to purchase such land. Plaintiff averred that after such proposal between him and Rao Bhagwat Singh, an agreement was entered into to sell the proposed land for a consideration of Rs.16,000.00, and plaintiff paid Rs.8000.00 at the time of executing the agreement and remaining amount Rs.8000.00was agreed to be paid after issuing order for allotment of land in favour of Rao Bhagwat Singh. Plaintiff averred that one power of attorney was executed in favour of plaintiff to pursue the issue of allotment of land and thereafter the State government decided to allot the land to Rao Bhagwat Singh. Plaintiff stated that he paid remaining amount of Rs.8000.00 to Rao Bhagwat Singh, and he wrote an application dtd. 29/8/1966 to Tehsildar Jaipur to issue patta of land in the name of plaintiff. In pursuance thereof, under instructions of the Tehsildar Jaipur, possession of land was delivered to plaintiff on 11/10/1966 and patta was issued on 31/10/1966 in the name of plaintiff. It has been averred in the plaint that defendants 1,2 and 3 are widows of Rao Bhagwat Singh and defendant No.4 is his daughter. The defendant No.5 is the person who deals with and takes care of properties of Thikana Dooni. It was stated that Rao Bhagwat Singh passed away on 25/11/1967, and that after death of Rao Bhagwat Singh, disputes arose amongst surviving natural heirs defendants No.1, 2, 3 and 4. The defendant No.5, who was dealing and taking care of properties of Thikana Dooni, made a complaint to the Collector Jaipur in respect of land in question of Thikana Dooni that patta dtd. 31/10/1966 has wrongly been allotted in favour of plaintiff and that property belongs to Thikana. On such complaint, the Collector vide order dtd. 27/5/1969 cancelled the patta dtd. 31/10/1966 issued in favour of plaintiff and directed to issue fresh patta in the name of legal heirs of Rao Bhagwat Singh. Plaintiff challenged the said order dated 27-5- 1969 by way of filing review petition, but the same was dismissed on 30/4/1970. Thereafter the plaintiff instituted the present civil suit on 8/8/1970 stating therein that the land in question is in possession of plaintiff and plaintiff be declared owner of the land and defendants be restrained not to dispossess the plaintiff from the land in question. The suit was amended from time to time and plaintiffs No.2 to 10, being subsequent purchasers were added, but it may be noted here that the plaintiffs no where sought any relief to quash the order dtd. 27/5/1969 passed by Collector cancelling the patta issued in favour of plaintiff and for issuing patta in favour of Thikana Dooni and the order dtd. 30/4/1970 on review petition affirming the order dtd. 27/5/1969.

(3.) The suit was contested by defendant No.5. He filed written statement. The agreement to sell alleged to be made by Rao Bhagwat Singh in favour of plaintiff, in respect of land which was proposed to be allotted to him in lieu of acquisition of property of Thikana was categorically denied. He denied that Rao Bhagwat Singh ever wrote any letter dtd. 29/8/1966 to the Tehsildar Jaipur to issue patta in favour of plaintiff. It was admitted that Rao Bhagwat Singh died on 25/11/1967, but it was stated that before his death he withdrew the power of attorney in favour of plaintiff, cancelled the agreement and instructed the defendant No.5 to get possession of land in question. In pursuance thereof, the defendant No.5 moved an application before the Tehsildar. Such application came before the Collector, and on such application the order was passed to issue patta in favour of Thikana Dooni, but since thereafter Rao Bhagwat Singh passed away and the plaintiff having connivance with few persons, got issue patta on 31-10- 1966 in his own name from the Tehsildar. The defendant contended that in order to cancel the patta issued in the name of plaintiff, he persuaded the matter before the Collector Jaipur, and there upon an enquiry was ordered. During enquiry, the Tehsildar Jaipur recorded statement of plaintiff and submitted his report. Thereafter, the collector passed the order dtd. 27/5/1969 cancelling the patta dtd. 31/10/1966 issued by the Tehsildar in the name of plaintiff and to issue patta in the name of Thikana Dooni. Plaintiff challenged the said order by way of review petition, but the same was dismissed on 30/4/1970. The patta has been issued by the Collector in favour of defendants, being heirs widows and daughter of Rao Bhagwat Singh and they have transferred the property to defendant No.5. It was contended that plaintiff obtained patta 31/10/1966 with collusion from the Tehsildar Jaipur, who had no authority to issue patta in respect of property of Thikana Dooni and on the basis of such patta, plaintiff executed sale-deed in favour of several persons detailed out in para 19 of the written statement. It was contended that neither the plaintiff has any possession nor has any right, title or interest in the suit property on the date of filing the suit, and therefore, the suit is liable to be dismissed. After filing written statement, the plaintiff impleaded the subsequent purchasers of land in question as party, plaintiffs No.2 to 10, and amended plaint was filed.