KISHANSINGH Vs. CITY CORPORATION NOW MUNICIPAL

JUDGEMENT

(1.) THIS second appeal by the plaintiff is directed against the judgment and decree dated April 18, 1967 passed by the learned Senior Civil Judge, Udaipur by which he maintained the judgment and decree of the learned Munsif, Udaipur dated May 26, 1959 in a suit for declaration and injunction

(2.) THE facts leading to this appeal, briefly put, are these : There is a 'chowk' in front of the 'haveli' of Thikana Kotra. It appears that the neighbours complained regarding the existence of a compound wall which was demolished by the Municipal Corporation of Udaipur (hereafter called the Corporation) on May 22, 1954. The Corporation also removed the stones, and served a notice on the plaintiff on January 12, 1958 demanding the expenses for the demolition of the 'Kot' and for cearing the debris. Thereupon, on March 25, 1958 the plaintiff served a notice on the Corporation which was received by it on March 27, 1958, asking it to re -erect the wall and to pay Rs. 500/ - as compensation to the plaintiff. An appeal was taken by the plaintiff against the order of the Corporation which was dismissed on November 22, 1957. The present suit was instituted for declaration and injunction in the Court of Munsif, Udaipur on May 22, 1958. The plaintiff has stated that the 'chovtk' in dispute was his property and that the 'Kot' around it was consructed by his ancestors. It was, therefore, prayed that an injunction be issued against the Corporation restraining it from illegal interference and that a decree in the sum of Rs. 5(0/ -, as damages, be passed. The Corporation contested the suit by filing a written statement on August 7, 1958 The principal defence was that it had a right to demolish the 'Kot'. Objections regarding notice and limitation were also taken. The learned Munsif framed the following issues arising out of the pleadings of the parties

(3.) MR . A. L Metha, learned Counsel for the appellant, in the first instance contended that this Court, in second appeal No. 94 of 1961 set aside the judgment of the Senior Civil Judge dated August 25, 1960 which meant that booth appeals Nos. 186 and 187 of 1959 were to be disposed of by the lower appellate court and the non -mention of the defendant's appeal (No, 186 of 1959) in the operative portion of the judgment of this Court did not mean that lower appellate court was not to decide it This Court had set as de the judgment and decree passed in Civil Appeal No. 187 of 1959 and sent the case back to the lower appellate court for deciding Civil appeal No. 187 of 1959 afresh As the judgment dated August 25, 1960 passed in Civil Appeal No, 187 of 1949 was set aside, according to the learned Counsel the learned Senior Civil Judge should have decided both the appeals Nos. 186 and 187 of I959 afresh but he has decided only the plaintiff's appeal No. 187 of 1959 by the impugned judgment. He further contended that the learned Senior Civil judge was required to decide whether the plaintiff has been able to prove his possession over the land in dispute. Issue No. 1, when translated into English, reads as under, - Whether the disputed land was in possession of the plaintiff and he was its owner Learned counsel submitted that the documents Ex. 1 Ex. 8 & Ex 9 have been misread and misconstrued by the learned Senior Civil Judge as from these documents, it is conclusively proved that the land is dispute was of the plaintiff's ownership. As regards the location of the land in dispute, he referred to the statements of DW4 Akshyakirti Vyas, DW5 Harsiddhilal Vyas & DW7 Maghraj Dhabai On the basis of the statements of PW 2 Jagannath Suthar and PW 4 Ganesh Nath, he further contended that the ownership of the plaintiff in regard to the land in dispute is established, Ex1 is the judgment of Mahendraj Sabha dated April 16, 1885 Ex 2 is the plan which is not record. Ex 8 is judgment of the Sadar Diwani Adalat dated June 2, 1884 and Ex 9 is a judgment of the Kacheri Khalsa dated July 3, 1937. A perusal of the judgment Ex 1 shows that it pertained to a dispute between the former State of Udaipur and Katha Bhatt Jagnnath, Girwarlal and Gulla Dholi. The Surveyor reported that the above mentioned three persons had committed trespass upon khalsa land by encroaching upon it. It was held by Mahendraj Sabha that it was not proved that the land upon which the construction was raised by these persons, was Khalsa land. For coming; to this conclusion, Mahendraj Sabha referred to some Parwanas which were issued by the then Jagirdar of Kotra and by the former State of Mewar which were issued in favour of the aforesaid three persons. According to the learned Counsel, Ex - I relates to the 'chowk' in dispute and, therefore, the defendant cannot now lay its claim on the ground that it is Khalsa and that it should therefore be held that the 'chowk' belongs to the plaintiff. From the evidence, as observed by the learned Senior Civil judge it is difficult to hold that the 'chowk' referred to in Ex. 1 is the 'chowk' in dispute. The judgment Ex. 1 is with respect to the land which was in possession of the aforesaid three persons I agree with the learned Senior Civil Judge that an inference as to the plaintiff's ownership of the 'chowk' cannot be drawn from the fact that the land which was in possession of the aforesaid three persons was not held to be Khalsa and, therefore, the whole 'chowk' belongs to the plaintiff. Learned Senior Civil Judge took note of the fact that certain portions for the land out of the 'chowk' in dispute were sold by the defendant or the former State of Udaipur. In this connection, the learned Senior Civil Judge has referred to Pattas Ex A/5. Ex A/6, Ex. A/9, Ex. A/10, Ex. A/11 and the plans Ex. A/5A, Ex. A/6 (1), Ex. A/9(1), Ex A/10(1) and Ex. A/11 (1). It is clear from the statement of DW 4 Akshyakirti that the 'chowk' in dispute is being used by Mohallwalas. The learned Senior Civil judge has written in the judgment that it is established by the defendant's evidence that this land is used as a passage by Dhabai Meghraj, Harsiddhilal and Akshyakirti In my opinion, the judgment Ex. 1 dated April 16, 1885 does not help the plaintiff in establishing his ownership in respect of the 'chowk' in dispute. The judgment Ex. 8 was rendered in connection with a dispute relating to the possession of Girdharlal and not the 'chowk' as such. A perusal of the judgment Ex 9 shows that it relates to the land sold to Meghraj Dhabai. From Exs 8 and 9, neither the identify nor location of the 'chowk' in dispute can be inferred. Learned Counsel submitted that the plaintiff had been in long possession over the land in dispute. The learned Senior Civil Judge, after considering the statement of PW 1 Partapsingh, PW 2 Jagannath Suthar, PW 4 Ganesh Nath, PW 5 Pirthvisingh PW 6 Madhosingh, PW 7, Ghisulal and PW 8 Manna Lal reached the conclusion that this evidence did not establish the plaintiff exclusive possession over the 'chowk' in dispute. Learned Senior Civil Judge, after considering the defendant's evidence, found that Meghraj Dhabai, Akshyakirti were having opening of their houses on the land in dispute and they have been using it as a passage. Taking all the relevant circumstances into consideration, he was of the opinion that the plaintiff's claim of title on the basis of such possession has not been established. Having carefully read the judgments Ex 1, Ex.8 & Ex.9 & having considered the plan Ex. 2 in the light of the statements of PW 2 Jagannath, PW 4 Ganeshnath, DW 4 Akshyakirti, DW 5 Harsiddhilal & DW 7 Meghraj Dhabai, I am of opinion that the plaintiff has not been able to establish his ownership over the chowk in dispute. The learned Senior Civil Judge has neither misread nor misconstrued the aforesaid three documents Ex.1, Ex 8 and Ex 9. It was for the plaintiff to show the identity of the land covered by 'chowk' which he has failed to establish.