MUNICIPAL BOARD Vs. TEMPLE NARSINGH JI KHATEDAR

JUDGEMENT

(1.) Appellant-Plaintiff has laid this second appeal under Section 100 CPC to assail judgment dated 20th of May 2014 passed by District Judge, Chittorgarh (for short, 'learned first appellate Court'), whereby learned first appellate Court has affirmed judgment dated 31st of August, 2013 rendered by Addl. Civil Judge (Sr.Div.) No.1, Chittorgarh (for short, 'learned trial Court') dismissing the suit of the appellant for declaration and perpetual injunction.

(2.) The facts in brief, giving rise to this appeal are that appellant-plaintiff instituted a suit against respondent-defendant for declaration and perpetual injunction, inter-alia, alleging therein that an agricultural land of Khasra No.1597 admeasuring 0.07 hectare, entered as Khatedari land in the revenue records, belonging to Narsinghjee Temple was acquired by the appellantplaintiff for construction of road and in lieu thereof alternative commercial land was allotted to the respondent-defendant. As per averments in the plaint, respondent-defendant was allotted Plot No.10-A, Old Bus-stand, Chittorgarh, having total area of 375 Sq.ft. and lease deed was executed on 27th of April 2006 in its favour. It so happened that while executing lease deed by the appellant, as per its version, mistakenly Pujari of the temple Kishan Das was shown as lessee, and therefore, apprehending misuse of the land by Pujari, a decision is taken by the Municipal Board to launch litigation in the matter. Thus, the suit in question came into offing with the prayer for declaration and perpetual injunction at the behest of appellant. In the form of declaration, in the suit, declaratory decree was sought to delete name of Pujari of the temple as lessee with a further prayer for perpetual injunction to protect the interest of the temple land. Appellant craved for perpetual injunction against the respondent-defendant to hand over the land to a committee headed by Naib Tehsildar.

(3.) The suit is contested by the respondent. In the written statement, it was inter-alia averred by the respondent-defendant that land, which was taken over by the Municipal Board for construction of road was not Khatedari land of the temple and in fact it was entered in the revenue record as Khatedari land of the respondent-defendant. It is also pleaded in the written statement that no agricultural land in the revenue record is available in the name of temple as Khatedar. The respondent-defendant has further pleaded in the written statement that before issuance of lease deed, licence was issued in his name and subsequently lease deed was also executed in his favour. A specific plea was taken in the written statement that alternative land was allotted and lease deed was issued in favour of respondent-defendant upon consideration of a very vital fact that the land, which was taken over for construction of road by the Municipal Board was Khatedari land of his ancestors as per revenue records. The respondentdefendant has also pleaded that although for years togetehr land was shown in the name of his ancestors depicting them Khatedars but later on due to inadvertent error of the revenue officials their name was omitted and thereupon he filed a revenue suit which was decreed by the competent revenue Court facilitating re-entry of his name as Khatedar in the revenue records. Relying on the decision of the revenue Court, it is also pleaded by the respondent-defendant that the said decision of the revenue Court was not challenged before any appellate forum and therefore by afflux of time it has attained finality. With all these averments, respondent-defendant craved for rejection of the suit filed by appellant. Learned trial Court, on the basis of pleadings of rival parties, framed four issues for determination. On behalf of appellant-plaintiff, PW1 Premchand Sharma appeared in the witness box and two documents were produced which were exhibited. For substantiating his defence, respondent himself appeared in the witness box and produced licence issued by the Municipal Board as well as decision of the revenue Court which were exhibited.