Rajasthan High Court - Jodhpur

State Of Rajasthan vs Aman Yadav on 25 November, 2021

Bench: Devendra Kachhawaha

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 67/2021

1. State Of Rajasthan, through District Collector, Sirohi

2. Municipal Board Aburoad, through its Executive Officer, Minicipal Board, Abu Road, Sirohi (Raj.)

----Appellants/Defendants Versus Aman Yadav W/o Shri Sukhveer Singh Yadav, r/o Aburaod, District Sirohi

----Respondent/plaintiff

For Appellant(s) : Mr. Rajesh Parihar For Respondent(s) : Mr. Sandeep Saruparia

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Judgment

Reserved on :- 17/11/2021 Pronounced on :- 25/11/2021

Appellants-Defendants have preferred this first appeal under

Section 96 C.P.C. to challenge the impugned judgment and decree

dated 19.11.2020 passed by Additional District Judge No.1,

Aburoad, District Sirohi (for short, 'learned trial Court') in Civil

Original Suit No.46/2009 (49/2009) (CIS No.876/2014) titled as

"Smt. Aman Yadav Vs. State of Rajasthan & Anr.". Learned trial

Court, by the impugned judgment and decree, decreed the suit

filed by the respondent-plaintiff for declaration, permanent and

mandatory injunction.

Succinctly stated, the facts of the case are that initially a suit

for declaration, permanent and mandatory injunction was filed by

respondent-plaintiff Smt. Aman Yadav against the State of

(2 of 14) [CFA-67/2021]

Rajasthan and Municipal Board, Aburoad on the ground that one

property of plaintiff's ownership situated in Ward No.1 of Mouja

Manpur, Aburoad and four corners of the property are mentioned

at para no.1 of the plaint and khasra numbers of the property are

mentioned in para no.2 of the plaint. The land was allotted in

favour of plaintiff vide allotment letter dated 25.04.1959 for the

purpose of installing and developing poultry and dairy farm and

since then, the plaintiff is in possession over the land in question.

After allotment of the land in question in favour of the

plaintiff, in the year 1961, the Gram Panchayat, Aakarabhatta

proceeded to issue pattas in favour of the different persons over

the same land then, the plaintiff had filed her objections on

29/31.10.1961 and reiterated the fact of her ownership over the

land in question. Despite of that, pattas were issued by the

concerned Gram Panchayat and the land in question was sold to

one Himmat Singh. Thereafter, Himmat Singh had filed a civil suit

claiming possession and mesne profits in relation to the land in

question. The issues framed in that suit regarding possession and

ownership were decided in favour of the present respondent-

plaintiff. In the year 1962, the plaintiff had dug one well on the

land in question, thereupon, the Gram Panchayat had issued a

notice to the plaintiff on 26.05.1962 for being using the land in

question for the purposes other than the conditions of allotment.

In the year 1972, the Tehsildar, Abu Road had issued a letter to

the plaintiff stating that the proposal for resuming the land in

question in favour of the State Government but nothing happened

thereafter. In the year 1977, a representative of the District

(3 of 14) [CFA-67/2021]

Collector had informed the plaintiff that the land in question is

being used in violation of the conditions of allotment. Thereafter,

the Tehsildar, Abu Road issued three notices under Section 91 of

the Land Revenue Act and threatened the plaintiff for

dispossessing her from the land in question. Despite all these

proceedings, the plaintiff remained in possession over the land in

question as its owner. Thereafter, in the years 1981 and 1984

Gram Panchayat, Aakarabhatta further issued the notices for

dispossession of the plaintiff from the land in question but she

disowned the order and claimed to be owner of land in question.

In 1996, Gram Panchayat, Aakarabhatta again sent notice to

vacate the possession and further Gram Panchayat, Aakarabhatta

issued Pattas to some other persons. Proceedings of which has

been challenged by Panchayat Prasar Officer, Panchayat Samiti,

Aburoad before District Collector, Sirohi in the revision petition in

which plaintiff was also made party without any reason and

District Collector, Sirohi cancelled those Pattas vide order dated

03.11.1998 and the same has been challenged before the High

Court and further challenged before Hon'ble Apex Court, in which,

Hon'ble Apex Court on 14.08.2006 directed that possession to be

taken back from the illegal allottees and thereafter allotment to be

made through public auction. The plaint which was placed before

Hon'ble Apex Court, one of the important fact was concealed by

respondent No.1 that from 1959 plaintiff was having peaceful

possession over the land in question without any obstruction as

the owner. As the said fact was not placed before Hon'ble Apex

Court for consideration, therefore no such finding was made by

the Hon'ble Court in this regard. One of the another fact was also

(4 of 14) [CFA-67/2021]

concealed by respondent No.1 which is stated in the plaint that

during pendency of the appeal before Hon'ble Apex Court, in the

year 2006, land of khasra No.676 has been altered to 612 and

same has been entered in the name of Municipal Board, Aburoad

and the name of Gram Panchayat Aakarabhata has been deleted.

The defendants gave threatening/warnings to the respondent-

plaintiff to vacate the land in question many times by different

means. Thereafter plaintiff-respondent had served a notice

through her advocate under Section 80 CPC & Section 271 of the

Rajasthan Municipal Act to the Appellants-defendants on

27.01.2009 which was duly received by the defendants but neither

the compliance of that notice had been made nor any reply had

been filed by the defendants.

In the circumstances, as mentioned above, the suit was filed

with a prayer that a decree for declaration to this effect may be

issued in favour of the plaintiff that plaintiff is only the original

owner of the property, as mentioned in para Nos.1 & 2 of the

plaint. It was also prayed that decree of permanent injunction

may also be passed in favour of plaintiff; that appellant Nos.1 & 2

will not create any obstruction in peaceful possession of the

property and not alienate, auction, allot and transfer the property

in question by any other means. It was also prayed that if right of

plaintiff was wrongly effected during pendency of the suit, the

decree of mandatory injunction may also be passed in favour of

plaintiff directing the defendants to restore the position, as it was

existed before filing of the suit, upon the land in question, at the

(5 of 14) [CFA-67/2021]

cost of defendants and any other relief which is just and proper in

the interest of justice may also be passed in favour of the plaintiff.

The suit was contested by the defendants/appellants by filing

written submissions refuting all the allegations and averments as

taken by the plaintiff.

On the basis of the pleadings of the parties, the learned Trial

Court had framed the following issues:-

^^1& D;k oknh okni= dh pj.k la- 1 esa of.kZr prqfnZ"kk ds e/; fLFkr rFkk oknin la- 2 esa of.kZr iqjkus [kljk uacjksa dh Hkwfe dh Lokeh ?kksf'kr fd;s tkus dh vf/kdkjh gS\ &&oknh 2& D;k fopkjk/khu Hkwfe ds xzke iapk;r }kjk iV~Vs dkVs x;s Fks ftUgsa fujLr fd;k tkdj fooknk/khu Hkwfe o mlds vklikl dh vkcknh Hkwfe dh uhykeh dh dk;ZokbZ ekuuh; mPpre U;k;ky; ds vkns"k ds vuqlkj dh x;h gS vkSj uhykeh dh dk;ZokbZ iw.kZ ugha gqbZ gS\ &izfroknhx.k 3& D;k izfroknhx.k dks okn izLrqr djus ls iwoZ nks ekg dk uksfVl ugha fn;s tkus ls ;g okn iks'k.kh; ugha gS\ &&izfroknhx.k 4& vuqrks'k\^^

The rival parties led their evidence. The respondent-plaintiff

with a view to substantiate her case herself appeared in the

witness box as P.W.1 and also examined one more witness P.W.2

Rajiv Yadav besides tendering five documents, which were

exhibited as Ex.P/1 to Ex.P/5 respectively.Contrary to the evidence

of the respondent-plaintiff, statement of D.W.1 Tikamdan Charan,

Executive Officer of Municipal Board, Aburoad recorded besides

three documents, which were exhibited as Ex.D/1 to Ex.D/3.

                                            (6 of 14)                 [CFA-67/2021]

     Upon    conclusion     of    the     evidence,        learned   trial   Court

proceeded to hear final arguments and decided Issue No.1 in

favour of respondent-plaintiff as she was able to prove her

possession and title ownership over the land in question and she

was never dispossessed from the land in question. Thereafter,

Issue No.2 was decided against the appellants-defendants as they

were not able to prove that proceedings of auction in regard to

disputed land was initiated as per direction given by Hon'ble Apex

Court. Likewise Issue No.3, was also decided against the

appellants-defendants as the notice under Section 80 CPC and 271

of the Rajasthan Municipal Act was served to the appellants-

defendants on 27.01.2009 which was duly received by the

appellants-defendants and the copy of notice was exhibited as

Ex.5., but neither the compliance of that notice had been made

nor any reply had been filed by the defendants.

After hearing both the parties, learned trial Court decreed

the suit in favour of the plaintiff-respondent by judgment and

decree passed by learned trial Court on 19.11.2020.

For ready reference, the order dated 19.11.2020 is

reproduced herein as under:-

                                              (7 of 14)            [CFA-67/2021]

                                  ^^&% vkns"k %&

55& vr% oknh;k Jhefr veu ;kno /keZifRu Jh lq[kohjflag ;kno] mez 77 o'kZ] fuoklh is"kk iksYVªh ,oa Ms;jh QkeZ] fuoklh vkcwjksM }kjk izfroknhx.k jktLFkku ljdkj tfj;s ftyk?kh"k egksn;] fljksgh ,oa uxjikfydk vkcwjksM tfj;s mlds vf/k"kk'kh vf/kdkjh uxjikfydk dk;kZy; vkcwjksM ds fo:) izLrqr ;g okn okLrs mn~?kks'k.kk ,oa LFkk;h fu'ks/kkKk Lohdkj dj fuEukuqlkj fMdzh fd;k tkrk gS & 1& fd bl vk"k; dh mn~?kks'k.kk cgd oknh;k fo:) izfroknhx.k tkjh dh tkrh gS fd oknh;k oknin la- 1 esa ntZ prqfnZ"kk ds e/; fLFkr rFkk oknin la- 2 esa of.kZr iqjkus [kljk uacjku dh Hkwfe dh tfj;s vkoaVu ,oa vkoaVu dh fnukad ls dCts/kkjh gksus ds vk/kkj ij Lokeh gSA 2& fd izfroknhx.k oknh;k ds oknxLr Hkwfe ds dCts] vf/kdkj esa fof/k fo:) izos"k ugha djsa ,oa mlesa {kfr dkfjr ugha djsa rFkk oknh;k dks vkoafVr Hkwfe dks fdlh vU; dks gLrkUrj.k] cspku] vkoaVu bR;kfn ugha djsa] uk gh oknh;k ds dCts esa gLr{ksi djsa vFkok fdlh ds ek/;e ls djkosaA okn O;; i{kdkjku~ viuk&viuk ogu djsaxsA mijksDrkuqlkj fMdzh ipkZ eqfrZc fd;k tkosA^^

To challenge the above mentioned decree, the present

appeal has been filed by State of Rajasthan as well as Municipal

Board, Aburoad.

Heard learned counsel for the appellants as well as learned

counsel for the respondent at length and perused the impugned

judgment and scanned the entire record of the case as well as

case laws relied upon by both the sides.

I have given my thoughtful consideration to the arguments

advanced at bar and on thorough examination of the evidence and

(8 of 14) [CFA-67/2021]

other materials on record in conjunction with the impugned

judgment, the observations of this Court upon each issues framed

by learned trial Court are given below.

So far as Issue No.1 is concerned, burden of this issue was

upon the respondent-plaintiff and that issue was decided in favour

of the respondent-plaintiff after a detail discussion by learned trial

Court. In this regard, learned counsel for the appellants-

defendants stated that the suit for adverse possession was filed by

respondent-plaintiff before learned trial Court for the relief of

declaration, permanent and mandatory injunction and it is an

admitted position that land was initially allotted in favour of

respondent-plaintiff for the purpose of poultry and dairy farm.

The finding of learned trial Court starts from para 21 of the

impugned judgment and defence taken by appellants-defendants

is mentioned at para Nos. 22 & 26 of the impugned judgment.

Earlier a revenue suit was filed by respondent-plaintiff which is

registered as Suit No. 13/84 and the same was dismissed by ADM,

Abuparvat. At para 2 of the plaint, document in regard allotment

order was not filed by respondent-plaintiff and allotment was

made in the year 1959 for ten years. Learned trial Court decreed

the suit in favour of respondent-plaintiff on the ground that earlier

suit was decreed in favour of respondent-plaintiff by competent

Civil Court wherein Government was not a party to the earlier suit,

therefore, finding of the judgment was not binding upon the

appellants-defendants. In support of pleadings, statement of

D.W.1 Tikamdan Charan, Executive Officer of Municipal Board,

Aburoad has been recorded before learned trial Court and there is

(9 of 14) [CFA-67/2021]

no pleading regarding adverse possession, therefore, it was

wrongly held by learned trial Court that on the basis of adverse

possession, respondent-plaintiff is entitled for injunction.

P.W.1 Aman Yadav has repeated all the relevant facts in

affidavit which has been given in examination-in-chief and even

during cross-examination she has stated that :-

bl Hkwfe ij jgdj iksyVªh dk;Z dk O;olk; dj esa esjs ifjokj dk Hkj.k iks'k.k djrh gw¡A ------------------------------------------ ekSds ij rhu edku iksyVªh dk;Z o Ms;jh dk;Z o pkjk :e oxsjgk cus gq;s gSA ----------------------------------------- dqvk tehu feyus ds FkksM+s le; ckn gh [kqnok fn;k FkkA vt [kqn dgk fd eqfxZ;k xUnk ikuh ugha ihrh Fkh blfy, dqvk [kqnok;k FkkA dqvk [kqnokus dh Lohd`fr eSaus ugha yh Fkh esjs ifr us yh gks rks eq>s ;kn ughaA ---------------------------------------------------------- ;g lgh gS fd vkdjkHkV~Vk iapk;r us ges tehu ls gVus ds uksfVl fn, Fks vt[kqn dgk fd ysfdu ge vkt fnu rd ogka ls ugha gVs gS vkSj dCtk gekjk gh gSA -------------------------------------- ;g dguk xyr gS fd okn izLrqfr ls iwoZ eSaus fof/kd uksfVl izfroknhx.k dks ugha fn;k gksA ;g dguk xyr gS fd oknxzLr tehu ij gekjk dCtk mi;ksx miHkksx ugha gksA

----------------------------------- ;g dguk xyr gS fd eSaus oknxzLr Hkwfe ij voS/k vfrØe.k dj j[kk gks vt[kqn dgk fd eSa crkSj ekfyd dh gSfl;r dkfct gwaA

Similarly, P.W.2 Rajiv Yadav has also made all relevant

submissions in affidavit which has been given in examination-in-

chief although he has admitted some facts during cross-

examination which has been pointed out by learned counsel for the

appellants during arguements and these facts are relevant to the

legal notice required prior to the suit which can be replied by

plaintiff herself and these are relevant to Issue No.3. In this way

learned trial Court has rightly held that respondent-plaintiff has

proved the issue in her favour by above mentioned evidence. In

(10 of 14) [CFA-67/2021]

this regard, sole witness Tikam Dan Charan examined as D.W.1 on

behalf of appellants-defendants. He has admitted during cross-

examination that :-

eSa ugh crk ldrk fd iksyVªh QkeZ o Ms;jh QkeZ ds dk;Z ls oknh;k o mlds ifjokj

dk xqtkjk pyrk gSA ----------------------------------- ;g lgh gS fd gekjs tokcnkok esa

oknh;k }kjk 1962 esa dqvk [kqnokus dh ckr fy[kh gqbZ gSA -------------------------- eSa ;g ugha

crk ldrk fd okfn;k rc ls vius vki dks ekfyd dgrs gq,s [kqysvke vkt fnu

rd fujUrj izfroknh dh tkudkjh esa dkfct pyh vk jgh gSA He has admitted

that earlier after giving notice, proceeding of dispossession was

held but it is admitted that no documents in regard these

proceedings were filed before the Court and therefore, in the

considered opinion of this Court, in absence of filing of relevant

documents, learned trial Court was not wrong in not accepting the

plea of the appellants-defendants. It is further relevant to mention

here that he has admitted that earlier case which was decided

before Hon'ble Apex Court, respondent-plaintiff was not party to

that suit. The facts mentioned in para nine of his affidavit were

not mentioned in written submissions. He further admitted that as

per para nine, no document in regard to proceeding of

dispossession in relation to respondent-plaintiff submitted on

record and the house and other construction of the plaintiff are

presently situated upon the present disputed land.

Per contra, learned counsel for the respondent stated that

plaintiff has proved her case through oral evidence as well as

plaintiff's case is admitted by D.W.1 Tikamdan Charan during

cross-examination; plaintiff was in peaceful possession of the

(11 of 14) [CFA-67/2021]

disputed land since 1959 without any interruption and in the

capacity of owner. Therefore, finding on issue No.1 is correct and

no interference is required.

Having regard to the facts and circumstances of the case and

the evidence mentioned above as well as the fact that pleading in

regard to adverse possession made at para Nos. 11 & 14 of the

plaint which was proved by P.W. 1 & P.W. 2 and as mentioned

above was also accepted by D.W.1 during cross-examination and

only notices were given by Gram Panchayat, Aakarabhatta and

Tehsildar Aburoad, still plaintiff remained in possession over the

disputed land without any interruption and she was never

dispossessed from the property; no documentary evidence in

regard to proceedings of dispossession was submitted before

learned trial Court or before this Court; Hon'ble Apex Court issued

direction in regard to the illegal allottees and there is no case that

allotment in favour of the plaintiff is illegal. Therefore, in the

opinion of this Court, learned trial Court has not committed any

error while deciding Issue No.1 in favour of the respondent-plaintiff

and finding of learned trial Court in regard to Issue No.1 is

affirmed.

So far as Issue No.2 is concerned, burden of the issue was

cast upon the appellants-defendants and after detail discussion,

that issue was decided against the appellants-defendants. In this

regard, learned counsel for the appellants-defendants stated that

Issue No.2 was wrongly framed and burden of that issue was

wrongly cast upon the appellants-defendants. This issue was

(12 of 14) [CFA-67/2021]

framed on the basis of pleadings in para 18 and 23 of the plaint.

It is an admitted position that initially land was allotted for ten

years and after ten years that allotment was not renewed in favour

of respondent-plaintiff. Earlier when proceeding was pending

before the Hon'ble Apex Court, respondent-plaintiff filed an

application to implead her as a party but the same was dismissed

by Hon'ble Apex Court.

Per contra, learned counsel for the respondent stated that it

is wrong to say that Issue No.2 was wrongly framed by learned

trial Court and burden was also wrongly cast upon the appellants-

defendants because above issue was framed on the pleadings

made by appellants-defendants at para Nos. 18 and 23 of the

written statement and also the evidences laid by the parties. It is

admitted position that auction proceeding was not completed.

Since, it is true that Issue No.2 was framed on the basis of

pleadings of defendant at para Nos. 18 and 23 of the written

statement, therefore, in the considered opinion of this Court, issue

No.2 is correctly framed and burden is rightly cast upon the

appellants-defendants. Therefore, learned trial Court has not

committed any error in deciding Issue No.2 against the appellants-

defendants and in favour of the respondent-plaintiff.

So far as Issue No.3 is concerned, burden of the issue was

cast upon the appellants-defendants and after discussion that

issue was decided against the appellants-defendants. In this

regard, learned counsel for the appellants-defendants stated that

(13 of 14) [CFA-67/2021]

no notice was given prior to the filing of suit, therefore, suit is not

maintainable. Despite of that, this issue was wrongly decided

against the appellants-defendants.

Per contra, learned counsel for the respondent-plaintiff stated

that notice was given prior to filing of the suit which is proved by

Ex.5 and by evidence of P.W.1 and P.W. 2.

Having regard to the facts and circumstances of the case and

the fact that at the one hand, P.W.1 and P.W.2 stated on oath in

regard to notice (Ex.5) and so far as question of delivery of that

notice is concerned, although no documentary evidence was

submitted in this regard but it was admitted by D.W.1 that no reply

to the notice Ex.5 was given by the appellants-defendants, which

shows that notice Ex.5 was duly received by appellants-defendants

prior to filing of suit, therefore, in opinion of this Court, learned

trial Court has not committed any error while deciding Issue No.3

against the appellants-defendants.

I am principally agreed by the law laid down by Hon'ble Apex

Court in case of A. Subramanian and Anr. Vs. R. Pannerselvam

reported in (2021) 3 Supreme Court Cases 675 cited by learned

counsel for the appellants but facts and circumstances of the

present case are different from the facts of above case; in that

case, the suit was filed only for permanent injunction whereas in

the present case, the suit was filed for declaration, permanent and

mandatory injunction. It was held that finding of High Court is

(14 of 14) [CFA-67/2021]

correct and, in result, appeal is dismissed. As per para 24 of the

judgment Hon'ble Apex Court has held :-

"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires in absolute title."

The judgment cited by learned counsel for the respondent in

case of Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors.

reported in (2019) 8 Supreme Court Cases 729, it was held by

Hon'ble Apex Court that such adverse possessee/possessory

owner cannot only seek to protect his title as defendant in a suit

but can also file suit for declaration of his title and for permanent

injunction restraining defendant from interfering with his

possession.

In view of the discussion foregoing, the findings of learned

trial Court on Issue Nos.1, 2 & 3 are affirmed and the judgment

and decree dated 19.11.2020 passed by Additional District Judge

No.1, Aburoad, District Sirohi in Civil Original Suit No.46/2009