Municipal Board Rajsamand And Anr vs Munawar Khan
2021 Latest Caselaw 2146 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 282/2011

1. Municipal Board, Rajsamand.

2. Municipal Board through Executive Officer, M.B. Rajsamand.

----Appellants Versus Munawar Khan s/o. Masitullah Khan, aged 69 years, resident of Rajnagar, Tehsil and District - Rajsamand (Raj.)

----Respondent

For Appellant(s) : Mr. Yashwant Mehta.

For Respondent(s)        :     Mr. Shambhoo Singh.



             HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Order

27/01/2021

This appeal is directed against the judgment and decree

dated 20.08.2007 passed by the Additional District Judge (Fast

Track), Rajsamand, whereby the appeal filed by the respondent-

plaintiff against judgment and decree dated 30.10.2003 passed by

the Civil Judge (JD), Rajsamand, District - Rajsamand, has been

set aside and the suit filed by the respondent-plaintiff has been

decreed.

The suit for permanent injunction was filed by the plaintiff

against the Municipal Board and its Executive Officer, inter alia,

with the submissions that he was owner of the disputed plot,

which was purchased by him by registered sale-deed on

28.12.1998 from Bhera, who was in possession over the plot for

generations. It was indicated that the defendants gave a notice

dated 02.01.2002 to the plaintiff alleging that he has trespassed

over the land and, therefore, he must remove his possession over

(2 of 4) [CSA-282/2011]

the plot in question. Reply to the notice was filed on 16.01.2002.

However, during Trespass Removal Drive, he has been threatened

that his possession shall be disturbed.

Based on the said submissions, the suit seeking permanent

injunction was filed.

The appellants-defendants filed written statement denying

the averments made. It was claimed that in Jamabandi for Samvat

2055 to 2058, the land in question was recorded as Bilanam Gair

Kabil Rajkiya Bhumi and that the same was part of Khasra No. 788

admeasuring 9 bigha 4 biswa. It was claimed that the sale-deed

was void, which cannot create any right in favour of the plaintiff. It

was alleged that the plaintiff was a retired Revenue Inspector and

without having a look at the title documents, he should not have

purchased the plot in question. It was prayed that the suit be

dismissed.

The trial court framed three issues. On behalf of the plaintiff,

four witnesses were examined and two documents were exhibited.

On behalf of the defendants, two witnesses were examined and

two documents were exhibited.

After hearing the parties, the trial court came to the

conclusion that Bhera had no title document and as the land was

recorded as Government land, the plaintiff was required to take

permission before raising construction and the title can be

determined based on issuance of Patta only and came to the

conclusion that the plaintiff was not entitled to any relief and

rejected the suit.

Feeling aggrieved, the plaintiff filed first appeal. The first

appellate court after hearing the parties, came to the conclusion

that though the defendants have relied on the Jamabandi (Exhibit

(3 of 4) [CSA-282/2011]

- D/1), which pertained to Khasra No. 788 admeasuring 9 bigha 4

biswa, however, it was not proved that the plot in question was

part of Khasra No. 788. The appellate court also came to the

conclusion that it is not proved on record that the land has been

transferred to the Municipal Board by the Government so as to

give jurisdiction to the Municipal Board to take proceedings for

removal of the plaintiff and, consequently, allowed the appeal and

granted injunction against the dispossession of the plaintiff.

Learned counsel for the appellants made submissions that

from the Jamabandi (Exhibit - D/1), it is apparent that the land in

question is Abadi land and is a Government land and, therefore,

the appellate court was not justified in interfering with the

judgment of the trial court.

Further submissions were made that the plaintiff was a

retired Revenue Inspector and was aware of the requirements and

despite that he has purchased the plot in question and, therefore,

he cannot escape the consequences.

Submissions were made that the appeal involves substantial

question of law, which needs determination by the Court.

Learned counsel for the respondent duly supported the

judgment of the appellate court.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

as well as the record of both the courts below.

A perusal of the Jamabandi (Exhibit-D/1) indicates that the

copy was obtained on 12.07.2002 and even on the said date, the

land was recorded as Government land and there was no

indication that the appellant-Municipal Board had any right over

the land in question/the same stood transferred to it by the

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Government. Further there is nothing available on record to

indicate that the plot in question was part of Khasra No. 788 as

claimed by the appellants, neither in the sale-deed produced by

the plaintiff nor anywhere else, such an indication is available and

as such the appellate court was justified in coming to the

conclusion that the fact that he plot in question was part of Khasra

No. 788 and that the Municipal Board had any right to remove

encroachments from the land in question was missing, cannot be

faulted.

In view thereof, the finding recorded by the first appellate

court, cannot be said to be perverse so as to require interference

by this Court. The appeal does not involve any substantial

question of law.

In view of the above discussion, the appeal has no

substance, the same is, therefore, dismissed.

(ARUN BHANSALI),J

50-PKS/-

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