KISHAN Vs. PREMI

JUDGEMENT

(1.) THIS is a second appeal by defendants Nos. 3 and 4 against the appellate decree of the District Judge, Pratapgaih in Civil First Appeal No. 36 of 1970 dated September 6, 1974 reversing the decree by the Civil Judge, Chittorgarh in Civil Original Suit No. 70 of 1966 on March 25, 1970 and decreeing the suit of the plaintiffs -respondents Nos 1 to 3 for permanent injunction against the appellants and respondents Nos. 4 and 5.

(2.) FACTS leading to the filing of this second appeal are that Madanlal Tamboli plaintiff instituted a suit on April 20, 1966 in the Court of the Civil Judge, Chittorgarh for permanent injunction against the appellants and respondents Nos. 4 and 5 for restraining them from interfering in his possession over a small plot of land measuring 13' east -west and 11 feet north -south located in village Begun with boundaries specified at the foot of para No. 1 of the plaint and from removing the betel shop carried on there by him. It was alleged by the plaintiff that this plot of land was granted to him by Municipal Committee Begun under a Bapi Patta dated March 16, 1959 after receipt of Nazrana and he was in its possession since then. There is a Chabutra made from Patties over this plot of land where upon the plaintiff carries on his betel shop. Subsequently this area formed part of Gram Panchayat Begun. The Gram Panchayat issued notice to the plaintiff on August 17, 1965 and on March 15, 1966 requiring the plaintiff to remove his possession over this plot of land. The plaintiff alleged that he was in lawful possession over the plot of land in pursuance of the Bapi Patta granted to him by Municipal Board Begun and the defendants have no right to interfere in his possession. So far as defendants NOS. 3 and 4 are concerned, it was alleged that they were instigating the Panchayat Samiti Begun to get the possession of the plaintiff removed from this plot of land. The plaintiff bad impleaded Gram Vikas Panchayat Begun and Panchayat Samiti Begun respectively as defendants Nos. 1 and 2 in the suit. The appellants were impleaded as defendants Nos. 3 and 4.

(3.) THE suit was tried by Civil Judge, Chittorgarh and he decided it on March 25, 1970. The Civil Judge held that the Bapi Patta Ex 1 dated 16th March 1959 was unstamped and unregistered documents and, therefore, it could not convey title in favour of the plaintiff over the suit plot of land. According to the trial court, the sale price was more than Rs. 100/ - and, therefore, the Patta required registration It was also held by him that Bapi Patta Ex. 1 is only signed by Chosar Singh, Chairman of the Municipal Committee and was not signed by two more members of the Committee as required by Section 36(7) of the Rajasthan Town Municipalities Act 1954. He also stated that residents of village Begun had raised objection against transfers of various plots made by the Chairman Municipal Committee Begun whereupon the Collector, Chittorgarh had issued notices to all the persons topping them from making any constructions Plaintiffs name was also included in the list. An inquiry was made by the Sub -Divisional Officer in pursuance of the orders of the State Government dated February 17, 1959. The Government thereupon held these transfers by the Chairman Municipal Committee Begun as illegal and without authority and wrote to the Collector Chittorgarh to take back possession of the plots from the vendees. It was held that 31 transfers were cancelled and the list also included the transfer made in favour of the plaintiff of the suit plot. On this basis, the Civil Judge held that the plaintiff did not acquire any right title or interest under the Bapi Patta Ex. 1 and further that the patta also stands cancelled after due inquiry. The trial court also held that the plaintiff had occupied this plot of land on August 35, 1965 forcibly by placing an Almirah. Under issue No. 6 it was held that since the plaintiff bad no legal title to the said plot, Gram Vikas Panchayat Begun bad power under the statute to remove the encroachment and further that the plaintiff was not entitled to the grant of the relief for permanent injunction without getting the order of the State Government declared illegal. In view of its findings on issues Nos. 1,4 and 6 against the plaintiff, the trial court dismissed the suit.