Municipal Board, Barmer vs Barmer Bhawan Nirman Sehakari ...
2021 Latest Caselaw 12788 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 30/2017

Municipal Board, Barmer Through Commissioner

----Appellant Versus Barmer Bhawan Nirman Sehakar Samiti Limited, Barmer Through Vice President - Shri Toda Ram S/o Shri, Resident Of Barmer

----Respondent

For Appellant(s) : Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi.

For Respondent(s)        :     Mr. Rakesh Arora.



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Order

16/08/2021

This appeal is directed against judgment dated 22.07.2016

passed by the Additional District Judge No. 1, Barmer, whereby

the appeal filed by the respondents against the judgment and

decree dated 31.07.2010 passed by the Civil Judge (Sr. Division),

Barmer has been allowed and the suit filed by the respondent-

plaintiff for injunction has been decreed.

A suit was filed by the plaintiff-Cooperative Society, inter

alia, with the submissions that the land admeasuring 9 bigha 6

biswa in Khasra No. 1179/2 at Barmer was owned by it, the land

was converted by the District Collector in case No. 21/1982, for

which patta dated 16.01.2002 was issued. It was alleged that the

defendant by claiming plots No. 1 to 18 & 40 and 41, which were

of ownership and possession of the plaintiff as indicated on the

map, was bent upon auctioning the same. The auction notice was

(2 of 5) [CSA-30/2017]

issued, which is cause of action for filing of the suit. It was prayed

that the defendant be restrained from auctioning the plots in

question.

Written statement was filed by the appellant-defendant, inter

alia claiming that the area of land purchased by the plaintiff is

already in its possession and the land comprising plots No. 1 to 18

& 40 and 41 is beyond that particular land. The disputed portion is

not part of the land belonging to the plaintiff and is owned by the

defendant. The plaintiff was required to file a suit for declaration

and possession. It was claimed that the value of the suit property

was about Rs.20,00,000/- and as such the same was not

maintainable for lack of pecuniary jurisdiction.

The trial court framed five issues. One behalf of the plaintiff,

two witnesses were examined and thirteen documents were

exhibited. On behalf of the defendant, two witnesses were

examined and five documents were exhibited.

After hearing the parties, the trial court came to the

conclusion that PW-1 was not aware of the fact that the plots,

which were put to auction by the defendant, whether were owned

by the plaintiff or not. Qua the statement of DW-1, who indicated

that the disputed plots were part of Khasra No. 1179/2 and that

the defendant did not own any land in the said Khasra, did not

accept the said plea and claimed that the plaintiff has to stand on

his own legs.

Regarding the site report produced as Exhibit-10, the trial

court came to the conclusion that as the said Commissioner was

not examined, the report was of no avail and, consequently,

decided that the plots sought to be auctioned by the defendant

were not part of the land owned by the plaintiff.

(3 of 5) [CSA-30/2017]

The plea regarding pecuniary jurisdiction was negated. It

was held that the suit for declaration and possession should have

been filed. Consequently, the suit was dismissed.

Feeling aggrieved, first appeal was filed. The first appellate

court, after hearing the parties, came to the conclusion that from

the statements of DW-1, the Commissioner, Municipal Board, it

was apparent that the disputed plots were in Khasra No. 1179/2

and that the Municipal board did not own any land in Khasra No.

1179/2 and that the Board owned land only in Khasra No. 1180.

The first appellate court also relied on the site report (Exhibit

- 10), wherein it was specifically indicated that the disputed plots

were in Khasra No. 1179/2 and that in the auction notice, no

Khasra Number was indicated. Consequently, the appeal was

allowed and decree was passed in favour of the plaintiff.

Learned counsel for the appellant made submissions that the

first appellate court was not justified in disturbing the judgment of

the trial court.

Submissions were made that the plaintiff had failed to

establish his right over the disputed land and as such, the

judgment impugned gives rise to substantial questions of law.

Submissions were also made that the first appellate court

could not have relied on the statements of DW-1 and DW-2 for

holding in favour of the plaintiff and that the Commissioner report

also could not have been used for accepting the appeal filed by

the plaintiff and for decreeing its suit, which also gives rise to

substantial questions of law.

Learned counsel for the respondent supported the judgment

impugned.

(4 of 5) [CSA-30/2017]

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

alongwith record of the two courts below.

The trial court essentially by holding that the statements of

defendant even if they supported the case of the plaintiff, cannot

be relied on for the benefit of the plaintiff and that as the

Commissioner's Report (Exhibit-10) was not proved by producing

the Commissioner, came to the conclusion that the plaintiff had

failed to establish his case.

As noticed hereinbefore, the first appellate court reversed

both the said basis. The principle that the plaintiff is required to

stand on his own legs and cannot rely on the weaknesses of the

defendant, cannot be applied in a case of present nature, wherein,

the admitted case between the parties was that disputed land

formed part of Khasra No. 1179/2 and that the Board did not own

any land in Khasra No. 1179/2.

DW-1 i.e. the Commissioner of the Board appeared in the

witness-box and admitted that the disputed land was part of

Khasra No. 1179/2 and that the Board did not own any land in

Khasra No. 1179/2.

Once the statement by the Commissioner of the Municipal

Board as categorical as above come on record, there was no

reason not to accept the plea of the plaintiff based on such a

statement.

Further, the trial court without looking into the nature of

documents, rejected the Commissioner's report (Exhibit-10).

A perusal of the documents indicate that the said report

was prepared by the Patwari, Barmer pursuant to the order

(Exhibit-9) passed by the SDO, Barmer in a proceeding initiated

(5 of 5) [CSA-30/2017]

by the plaintiff against the Municipal Board under Section 128 of

the Rajasthan Land Revenue Act, 1956, which provides for

decision on all disputes concerning boundaries by the Land

Records Officer.

The report was prepared by the Commissioner, wherein the

officers of the Board were initially present and, thereafter by

indicating that they have some other work, left the site. The

Commissioner in his report categorically indicated that the Board

was digging foundation in Khasra No. 1179/2 and indicated the

same by yellow colour in the Map (Exhibit - 11) and in his report

also clearly indicated that the same formed part of the land,

owned by the plaintiff.

Once the report was prepared pursuant to the order passed

inter se parties and the same was marked as exhibit by the

plaintiff, there apparently is no reason for not relying on the said

report prepared by the Commissioner i.e. Patwari and his report

was produced before the SDO in the proceedings for

determination of the boundaries and as such, the rejection of the

said report by the trial court also could not be sustained and the

first appellate court was justified in relying on the said report for

holding in favour of the plaintiff.

In view of the above discussion, the arguments raised by

learned counsel for the appellant do not give rise to any

substantial question of law.

Consequently, the appeal has no substance, the same is,

therefore, dismissed.

(ARUN BHANSALI),J

15-PKS/-

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