Rajasthan High Court - Jodhpur

Lehru Lal vs Hari Ram And Ors on 27 April, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 221/2012

Lehru Lal son of Shri Nanda, aged about 61 years, Resident of Karamsheel Marg,Barhmpole, Udaipur.

----Appellant Versus

1. LRs of late Hari Ram son of Shri Heera Ji.

1/1- Smt. Bhanwari Devi w/o Shri Hari Ram (deleted). 1/2- Smt. Bebi Devi daughter of Shri Hari Ram W/o Shri Jagdish Solanki.

1/3- Kamlesh son of Shri Hari Ram All residents of Opposite Chhagan Nath Ji Ki Bari, Brahmpole, Udaipur.

2. V.P. Singh, Dy. S.P. Urban Improvement Trust, Udaipur (since deceased).

3. Urban Improvement Trust, Udaipur through Secretary.

                                                                 ----Respondents


For Appellant(s)          :     Mr. Prashant Tatia.
For Respondent(s)         :     Mr. Vijay Purohit (through VC)



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                 Judgment

27/04/2021

This appeal under Section 100 CPC is directed against the

judgment & degree dated 31.03.2012 passed by the Additional

District Judge No.1, Udaipur, whereby the appeal filed by the

appellant has been dismissed and judgment & decree dated

26.11.2007 passed by the Additional Civil Judge (Jr.Div.) No.1,

North, Udaipur has been confirmed.

The suit was filed by Hari Ram - respondent No.1 against

Urban Improvement Trust ('UIT'), its officer and appellant - Lehru

Lal for permanent injunction. It was claimed that the plot of land,

(2 of 7) [CSA-221/2012]

which was in the ownership and possession of the plaintiff was

situated at Jhadol Road, which was purchased by the plaintiff from

Gram Panchayat, Sisarma and is in occupation of the plaintiff. It

was claimed that around the plot the plaintiff has constructed

stone wall alongwith two rooms and kitchen. It was indicated that

proceedings were initiated by the UIT qua the said plot, however,

finding the possession as legal, the proceedings were dropped. It

was alleged that the defendants and their employees came at the

site on 21.05.1987 and demolished the wall and part of the house

without any right and information, for which, the plaintiff was

filing separate suit for compensation. It was alleged that the

plaintiff was being threatened that either he himself should

remove the construction or the same would be removed by the

defendants. Based on the said averments, permanent injunction

against the defendants was sought.

Written statement was filed by the defendant - UIT denying

the averments made in the plaint. It was claimed that the land

comprised in Araji No.809 is allotted to the defendant, which was

Bilanam Government land prior to the allotment made on

20.01.1987. It was indicated that from the record of the Gram

Panchayat, Sisarma, the plot as claimed by the plaintiff was

neither allotted nor sold. If any construction has been raised by

the plaintiff, the same was as trespasser, for which, he has no

right. As the plaintiff is a trespasser, the defendants have right to

remove him. It was indicated that the land comprised in Araji

No.809 min was 43 Bigha 18 Biswa, which was a Government land

prior to 20.01.1987, the same was never allotted to Panchayat

and was also not abadi land and the same has been allotted to UIT

(3 of 7) [CSA-221/2012]

by the revenue department on 20.01.1987 and as such, the suit

was liable to be dismissed.

The appellant- defendant No.3 Lehru filed a written

statement disputing the right of the plaintiff to file the suit. It was

denied that any plot was sold by Gram Panchayat, Sisarma to the

plaintiff, the patta relied on was fabricated. It was claimed that the

property belonged to Maufidars and the same was transferred by a

legal patta to Nandaji, defendant No.3's father, which continuous

to be in possession of the defendant No.3. It was alleged that the

plaintiff has filed a suit in collusion with the defendant Nos.1 & 2,

who have no right in the plot and as such, the suit was liable to be

dismissed.

The defendant No.3 - appellant, in additional plea / counter

claim, raised in the written statement claimed that he was entitled

to retain possession of the plot in question and as such, sought

injunction against the defendant No.1 from interfering in his

possession.

The trial court framed six issues.

On behalf of the plaintiff, three witnesses were examined. On

behalf of the defendants, five witnesses were examined alongwith

documentary evidence.

After hearing the parties, the trial court came to the

conclusion that the plaintiff has neither produced the patta nor got

it exhibited. No documents pertaining to getting possession of the

plot was produced. Further no receipt pertaining to allotment was

produced and as such, the plaintiff failed to prove that the

disputed plot was allotted by Gram Panchayat, Sisarma. Qua the

claim made by the defendant No.3, the trial court came to the

(4 of 7) [CSA-221/2012]

conclusion that the defendant No.3 failed to produce any proof

that the land in question belonged to Maufidars, there was no

entry pertaining to the patta in the revenue records, no

permission was sought before raising construction and after

analysing the oral & documentary evidence led in this regard,

came to the conclusion that the defendant No.3 failed to prove

that the land was purchased by his father from Maufidars,

consequently, the suit filed by the plaintiff and counter claim filed

by the defendant No.3 - appellant were rejected.

Feeling aggrieved, the appellant - defendant No.3 filed first

appeal.

The plaintiff also filed first appeal.

The first appellate court, after hearing the parties, came to

the conclusion that there was no substance in either of the

appeals filed by the plaintiff and defendant No.3 and consequently,

dismissed both the appeals.

While dealing with the appeal filed by the appellant-

defendant No.3, the appellate court came to the conclusion that it

was necessary for the appellant to prove that the person, who

gave patta to the appellant's father Nanda was in-fact a Maufidar,

who had patta bahi and the same contained patta in the name of

Nanda. The appellate court also came to the conclusion that the

patta Ex.-A/1 did not indicate any measurement or area and as to

in which Araji the patta was given, was also not indicated. Further

the patta was not got proved either from the record of the

Maufidars or their legal representatives and as such, the land

comprised in the patta for lack of measurement, area, boundaries

or specific indication was not proved and in absence of

(5 of 7) [CSA-221/2012]

documentary evidence, the oral evidence was of no value and

consequently, dismissed the appeal filed by the appellant.

Learned counsel for the appellant attempted to make

submissions with reference to the patta Ex.-A/1.

It was claimed that the trial court and the first appellate

court were not justified to ignore the patta in question, inasmuch

as, the appellant had produced oral evidence in support of his

possession and the fact that the patta was issued by Maufidars

and therefore, both the courts fell in error in not accepting the

counter claim filed by the appellant.

Learned counsel for the respondent - UIT made submissions

that the two courts below have concurrently found that the

appellant has failed to prove that so-called Maufidars had the right

to issue the patta and/or the patta in-fact was issued by them and

as such, the submissions made by learned counsel for the

appellant do not give rise any substantial question of law and the

appeal, therefore, deserves to be dismissed.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

as well as material made available by learned counsel for the

appellant for perusal of the Court.

In a suit for injunction filed by the plaintiff - Hari Ram, the

defendant No.3 - appellant Lehru Lal, besides contesting the case

of the plaintiff - Hari Ram sought counter claim against co-

defendant UIT based on the patta said to have been issued by

Maufidars of the land in his possession.

At the outset, it may be noticed that the counter claim filed

by the appellant-respondent was solely directed against the co-

(6 of 7) [CSA-221/2012]

defendant UIT, whereby permanent injunction was sought against

the defendant No.1 - UIT not to interfere with his possession and

in case, during pendencyof the suit he is dispossessed, possession

be got restored. It is well settled that a counter claim directed

solely against the co-defendant cannot be maintained.

Hon'ble Supreme Court in Rohit Singh & Ors. v. State of

Bihar & Ors. : (2006) 12 SCC 734, inter-alia, laid down as

under :-

"18. Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter- claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter- pleader suit. Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counter-claim, in our view, should not have been entertained by the trial court."

(emphasis supplied)

In view of the above, the counter claim as filed by the

appellant, thought purportedly against the plaintiff as well as the

defendant No.1, the same being essentially directed against the

UIT, was not maintainable. However, both the courts on examining

the patta Ex.-A/1, which was sheet anchor of the appellant's case

in the counter claim, pointed out the chinks in the said patta,

wherein the patta did not indicate the measurement, area,

boundaries and/or specific identification pertaining to the land, for

which the same was allegedly issued.

(7 of 7) [CSA-221/2012]

In addition to the above, the courts also found that the land

in question in-fact belonged to the Maufidars, who had purportedly

issued the patta also, was not proved and consequently, came to

the conclusion that the appellant was not entitled to the

declaration as sought in the counter claim.

Learned counsel for the appellant despite making attempts

to establish that the patta in question conferred right on the

defendant No.3 based on which he was entitled to seek

declaration, failed to point out any perversity whatsoever in the

consideration made by the two courts below and the deficiencies

pointed out in the patta.