Rajasthan High Court - Jodhpur

Rewata vs Krishi Upaj Mandi Rajgarh on 13 July, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 7/2021

Rewata W/o Banwari Lal, Aged About 76 Years, R/o Ward No. 9 Kasba Rajgarh Dist. Churu (Raj.).

----Appellant Versus Krishi Upaj Mandi Rajgarh, Dist. Churu (Raj) Through Its

1. The Chairman, Krishi Upaj Mandi, Rajgarh Tehsil Rajgarh Dist. Churu (Raj.).

2. The Secretary, Krishi Upaj Mandi, Rajgarh Tehsil Rajgarh Dist. Churu (Raj).

                                                                ----Respondent


For Appellant(s)         :     Mr. Bharat Devasi.
For Respondent(s)        :     Mr. L.K.Purohit.



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                Judgment

13/07/2021

This second appeal is directed against the judgments &

decree dated 4/2/2011 & 23/11/2020 passed by Civil Judge (Jr.

Div.), Rajgarh, District - Churu and Addl. District Judge No.2,

Rajgarh, District - Churu, whereby, the suit for permanent

injunction and first appeal filed by the appellant have been

dismissed, respectively.

The suit for permanent injunction was filed by the plaintiff

inter alia with the averments that a residential plot was situated in

ward no. 9, Khasra no. 719, which was of her old possession, qua

which a Patta dated 21/7/1966 was issued by the District

Collector, Churu. It was claimed that the plaintiff had constructed

water tank and had also constructed fencing around the plot and

has taken electricity connection. It was indicated that the plaintiff

(2 of 8) [CSA-7/2021]

had filed a suit against Municipal Board for permanent injunction

qua the same land, which was decreed on 11/9/2008. It was

alleged that as the rest of the land in Khasra no. 719 was allotted

to defendant Krishi Upaj Mandi Samiti, the Mandi Samiti ('market

committee') in the garb of said allotment wanted to dispossess the

plaintiff and was seeking to deprive her from use of the said land.

It was prayed that the defendant be restrained from dispossessing

the plaintiff without undertaking due process of law and not to

deprive her from use of the plot.

Written statement was filed by the Mandi Samiti denying the

averments contained in the plaint. It was denied that the Patta

dated 21/7/1966 pertains to Khasra no. 719 and it was asserted

that the said plot was part of the land allotted by the District

Collector to Mandi Samiti on 1/3/1974. It was claimed that as no

record of the alleged Patta was available, the same was

fraudulent. It was also submitted that based on the decree passed

in a suit filed against the Municipal Board, the defendant cannot

be bound.

Further submissions were made that as mandatory notice

under Section 31 of the Rajasthan Agricultural Produce Markets

Act, 1961 ('the Act, 1961') has not been issued, the suit was

liable to be dismissed.

Based on the submissions of the parties, the trial court

framed five issues. On behalf of the plaintiff, three witnesses were

examined and ten documents were produced, on behalf of the

defendant, two witnesses were examined and six documents were

exhibited.

After hearing the parties, the trial court came to the

conclusion that it was not established that Patta (Ex.6) relied on

(3 of 8) [CSA-7/2021]

by the plaintiff was issued in accordance with law as no record in

this regard was available/produced. Further, the Patta in question

was found not relating to the plot in question; the suit plot was

part of the land allotted to Mandi Samiti and that the plaintiff was

seeking to take illegal possession of the land in question in the

garb of Patta. The trial court also came to the conclusion that the

suit was barred under the provisions of Section 31 of the Act,

1961 as admittedly no notice was issued. Consequently, the trial

court dismissed the suit.

Feeling aggrieved, the plaintiff filed first appeal. The First

appellate court after hearing the parties came to the conclusion

that complete certified copy of the Patta was not produced and

only a half part of Patta was produced and on the first page there

were no signature of the Collector, therefore, the record of

proceedings regarding issuance of Patta from the Collector were

necessary, which were not produced.

Further, besides the Patta relied on by the plaintiff, there was

no other Patta issued for the land around the land in question,

which makes the existence doubtful. The boundaries indicated in

the Patta did not match with the boundaries of the disputed plot.

The first appellate court also came to the conclusion that

though the plaintiff claimed that she had the electricity connection

for the plot in question, however, documentary evidence has not

been produced and as such even her possession was not

established and upheld the finding on issue nos. 1 and 2. The

appellate court also upheld the finding regarding suit being

barred/not maintainable in view of Section 31 of the Act, 1961

and consequently dismissed the appeal.

(4 of 8) [CSA-7/2021]

Learned counsel for the appellant made submissions that

both the courts below fell in error in dismissing the suit and appeal

filed by the appellant inasmuch though a simple suit for injunction

was filed by the appellant based on the possession, the same was

tried as if it was a suit for declaration, which is not permissible in

law and on that count the judgments impugned give rise to

substantial question of law. Reliance was placed on the judgment

in Prataprai N. Kothari vs. John Braganza : (1999) 4 SCC 403.

Further submissions were made that the two courts below

were not justified in coming to the conclusion that the suit was

barred under the provisions of Section 31 of the Act, 1961.

Submissions were also made that Khasra no. 719 is a big

chunk of land and out of the said Khasra, the plaintiff was allotted

a piece of land, however, the defendant, based on their allotment

in Khasra no. 719, were seeking to dispossess the plaintiff, which

only reflects their high handed behaviour without taking due

process and, therefore, the findings of two courts below, based on

the allotment in favour of the respondent - defendant, is

perverse.

It was prayed that as the appeal gives rise to substantial

questions of law, the same be admitted.

Learned counsel for the respondent vehemently opposed the

submissions. It was submitted that the two courts below have

concurrently come to the conclusion that the plaintiff failed to

prove the Patta and the fact that same pertained to the disputed

plot and that even her possession of the disputed plot was not

found proved. The said findings are findings of fact, which do not

give rise to any substantial questions of law.

(5 of 8) [CSA-7/2021]

Further submissions were made that both the courts below

have critically examined the evidence available on record and have

arrived at concurrent findings on all the issues, and the findings

being based on available material, the same do not give rise to

any substantial question of law.

It was emphasized that both the courts below have found the

suit as barred under Section 31 of the Act, 1961 and apparently

the said finding of the two courts below has not even been

challenged in the present second appeal as neither any ground in

this regard has been put forth in memo of appeal nor any

substantial question of law has been suggested on the said aspect

and on that count alone the appeal deserves to be dismissed.

I have considered the submissions made by learned counsel

for the parties and have perused the judgments as well as record

of both the courts below.

The suit was filed by the plaintiff seeking permanent

injunction asserting her title over the suit property based on the

Patta (Ex.6) and the fact that she was in possession of the land in

question. The suit was contested by the respondent based on the

plea that the land in question was part of the allotment made to it,

the Patta relied on by the plaintiff did not pertain to the plot in

question and that she was not in possession of the plot in

question. Besides the said aspect, it was stated that the suit was

barred under Section 31 of the Act.

Both the courts below after going through the nature of

document (Ex.6) relied on by the plaintiff and oral evidence led in

this regard, came to the conclusion that in view of nature of

document, which was incomplete, only half portion was produced,

the first page did not bear signature of the Collector and that the

(6 of 8) [CSA-7/2021]

proceedings undertaken in this regard were not produced, did not

find the document worth placing reliance for the purpose of claim

raised by the plaintiff. Further, the two courts below concurrently

found that apparently there was nothing on record to connect the

Patta with the land in question and that the plaintiff failed to prove

her possession over the plot in question. The courts below also

came to the conclusion that as the respondent Samiti was allotted

the land in question, the claim made by the plaintiff in this regard

could not be countenanced.

Learned counsel for the appellant failed to point out any

perversity whatsoever in the concurrent findings recorded by the

two courts below so as to give rise to any substantial question of

law for being agitated in the present second appeal.

The submissions made based on the fact that as the suit was

filed for permanent injunction, the two courts below could not

have decided the title by placing reliance on the judgment in the

case of Prataprai N. Kothari (supra), are also without any

substance inasmuch as the plaintiff herself claimed title based on

the Patta and had tried to establish her possession based on

indication made in the Patta. It was open for the courts below to

come to the conclusion regarding nature of the document sought

to be relied on by the plaintiff. Nowhere the courts below have

come to the conclusion that as the land in question has been

allotted to respondent - Samiti, it was entitled to the land in

question irrespective of appellant's possession and as such, the

plea raised in this regard also has no substance.

There is substance in the submissions made by learned

counsel for the respondent that both the courts below have

concurrently found the suit being barred under Section 31 of the

(7 of 8) [CSA-7/2021]

Act, 1961 and in the memo of appeal the appellant has not

questioned the validity of the finding of the two courts below on

the said issue of maintainability.

Besides the above, though the appellant filed an application

under Section 100 (5) CPC for adding additional substantial

question of law, still the said aspect has not been challenged.

The provisions of Section 31 of the Act, 1961 read as under:

"31. Bar of suit in absence of notice.- (1) No suit shall be instituted against any market committee or any member, officer or servant thereof or any person acting under the direction of any such market committee member, officer or servant for anything done or purporting to be done in good faith as such member, officer or servant under this Act until the expiration of two months next after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a market committee delivered or left at its office and, in the case of any such member, officer, servant or person as aforesaid, delivered to him or left at his office or usual place of abode and the plaint shall contain a statement that such notice has been so delivered or left.

(2) Every such suit shall be dismissed unless it is instituted within six months from the date of the accrual of the alleged cause of action."

Admittedly, no notice as required under Section 31 of the Act was

issued by the plaintiff-appellant to the respondent Market Committee

and as such, the two courts below were justified in coming to the

conclusion that the suit was barred in view of express provisions of

Section 31 of the Act, 1961 and, therefore, the challenge to the finding

on said issue besides having not been questioned by the appellant in

the memo of appeal, has no substance.

(8 of 8) [CSA-7/2021]

In view of the above discussion, the appeal does not give rise to

any substantial question of law, the same, therefore, has no substance

and is consequently dismissed.