DALPAT SINGH Vs. SARPANCH & ANR.

JUDGEMENT

(1.) Appellant-plaintiff has preferred this second appeal under Section 100 CPC to challenge the judgment and decree dated 10.05.2010 passed by District Judge, Sirohi (for short, 'learned first appellate Court'), whereby learned first appellate Court has dismissed his appeal affirming the judgment and decree passed by Civil Judge (Junior Division) Sheoganj (for short, 'learned trial Court').

(2.) The facts, necessary and germane to the matter, are that at the threshold appellant-plaintiff laid a suit for declaration of title and permanent injunction before the learned trial Court. In the suit, it is, inter-alia, averred that a plot situated behind the back side of Arathwara Road Maliyon-Ki-Gali is owned by him and he is also in possession of the said plot. It is specifically pleaded in the plaint that the said plot is in possession of his ancestors since long. The requisite details about the measurement and neighbourhood of the plot were mentioned in the plaint. In order to get a valid title, i.e., issuance of Patta, as per the appellant-plaintiff, he laid an application before the first respondent. In the plaint, it is also averred that second respondent has unauthorisedly trespassed towards the eastern side of his house which is meant for his ingress and egress to his house. It is also averred that the second respondent has also attempted to open his door towards that way which has narrowed down the way, which the appellant is using for last 40-50 years. Regarding the land in question, the appellant has asserted that he is entitled to be declared as owner on the plea of adverse possession. Highlighting the overt act of the second respondent, appellant-plaintiff has also pleaded that he made all efforts to apprise the higher authorities to remove his encroachment on the said land but all his efforts proved abortive. It is also stated in the plaint that he has also obtained water and electricity connection after obtaining requisite No Objection Certificate. A fact that before instituting the suit, a notice under Section 109 of the Panchayat Act was served, is also incorporated in the pleadings.

(3.) Respondent-Gram Panchayat contested the suit and filed its written statement. In its return, the first respondent has alleged that the claim of appellant for ownership on the land in question is not tenable for the simple reason that this land is a part of public way. A specific plea is also incorporated in the written statement that appellant-plaintiff has trespassed on the said land without there being any permission of the Gram Panchayat. As regards claim of the appellant for issuance of Patta, it is specifically averred in the return by the Gram Panchayat that a decision has been taken for not granting Patta to the appellant and further Gram Panchayat has decided by its proposal not to issue Patta regarding the Bara to second respondent for the reason that 11 K.V. High Tension electricity line is to pass over the said Bara. As regards opening of door by second respondent towards western side of Bara, the Gram Panchayat has taken the stand that permission has been granted to second respondent for the same. Adverting to so-called old possession of the appellant, Gram Panchayat has made a categorical statement that appellant has encroached over a land measuring 854.37 sq.ft. within last 2-3 years and his possession is that of a trespasser. The jurisdiction of the Court is also questioned by the Gram Panchayat.