Ramsingh vs State Of Rajasthan
2022 Latest Caselaw 5561 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 102/2019

Ramsingh S/o Shri Rajaji, Aged About 65 Years, B/c Rajput (Solanki), R/o Salgaon, Tehsildar Abu Road, District Sirohi.

----Appellant Versus

1. State Of Rajasthan, Through District Collector, Sirohi.

2. Tehsildar, Abu Road, District Sirohi.

                                                                   ----Respondents


For Appellant(s)            :     Mr. I.R. Choudhary
For Respondent(s)           :     Mr. L.K. Purohit



            HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                   Judgment

18/04/2022

The instant first appeal under Section 96 of the Code of Civil

Procedure, 1908 has been filed by the plaintiff-appellant against

the Judgment & Decree dated 27.09.2018 passed by the

Additional District Judge No. 2, Abu Road, District Sirohi in Civil

Original Suit No. 09/2017 (59/2012) titled as "Ram Singh Vs.

State of Rajasthan & Anr.", whereby the civil suit filed by the

appellant herein seeking injunction was dismissed.

The facts of the case in nutshell are that the plaintiff-

appellant was in possession of his khatedari land of total 21

Khasras measuring 13 bigha 13 biswas i.e. 31291.25 square yards

land. The description of the khasra numbers was mentioned in

the plaint, which included disputed Khasra No. 207. The plaintiff

further averred that in the above land, he got constructed the

house for his residence, cattle shed and store house for

(2 of 5) [CFA-102/2019]

agricultural purpose on the land ad-measuring 350 square yards.

On 04.07.2012, the officials of the defendants came on the land

and threatened to dispossess the plaintiff and asked to remove his

construction within 3-4 days. The act of the defendants was

against the law. The defendants were having no right to remove

the construction raised by the plaintiff. Hence, he prayed to issue

injunction against the defendants not to enter in the land of the

plaintiff and evict him. He also sought injunction for restraining

the defendants from demolishing the construction made by him.

The defendants-respondents filed their written statement alleging

that the plaintiff made construction on the land of Khasra No. 207,

which was recorded as Banjar without permission of the

competent authority in the year 2002. While denying the

allegations made by the plaintiff in the plaint, the defendants

prayed to dismiss the plaint of the plaintiff. The trial court framed

total eight issues and after recording the evidence of both the

parties, dismissed the suit vide Judgment and Decree dated

27.09.2018. Aggrieved with the said judgment and decree, this

first appeal has been filed by the plaintiff-appellant before this

Court.

The notices were issued to the respondents-defendants.

Heard learned counsel for the parties and perused the record

of the court below.

Learned counsel for the appellant has submitted that it was

not in dispute that the land in question was recorded in the

khatedari of the plaintiff. There was no requirement to take

permission for construction from any authority. Relying on the

provisions of Sections 66 and 67 of the Rajasthan Tenancy Act,

1955 (afterwards referred to as "the Act of 1955"), learned

(3 of 5) [CFA-102/2019]

counsel for the appellant has submitted that the plaintiff was

having every right to construct his dwelling house etc. on his

khatedari land. The disputed construction in the present case was

on 350 square yard land. As per proviso to Section 67 of the Act

of 1955, the plaintiff has right to construct over area not

exceeding one-fiftieth of the total area of the holding. The

construction in question did not exceed the limit. He further

submits that the trial court committed error in rejecting the plaint.

In the above circumstances, he has prayed that the present first

appeal may be admitted.

On the other hand, learned counsel for the defendants-

respondents has submitted that the plaintiff did not come with

clean hands. He nowhere mentioned that in which khasra number,

he had raised the construction. During the cross-examination of

the plaintiff, it emerged that the construction was raised on the

land of Khasra No. 207. The alleged construction did not come in

the category of improvement as defined in Section 5(19) of the

Act of 1955. It was admitted that the construction was raised

without previous permission. In cross-examination, plaintiff

admitted that construction was of the commercial nature, which

had already been demolished. In the above circumstances, he has

prayed that this appeal is liable to be dismissed at the admission

stage.

Having considered the rival contentions of the learned

counsel for the parties and after perusing the record of the court

below, it reveals that khatedari rights of the plaintiff over the land

in question in the present case are not in dispute. The dispute is

regarding construction made by the plaintiff over his holding. In

the plaint, plaintiff did not aver that in which khasra, the

(4 of 5) [CFA-102/2019]

construction was raised. The plaintiff also did not disclose the

year of the construction. He concealed the exact nature and

boundaries of the construction made by him. This fact is also not

in dispute that construction was raised by the plaintiff without

obtaining permission from revenue authority. This Court is in

agreement with the view expressed by the trial court that the

plaintiff has not come with clean hands. During cross-examination

of the plaintiff, he admitted that construction was made over land

of Khasra No. 207. He specifically stated that 3 rooms which were

demolished by the defendants, were situated on the land of

Khasra No. 207. He also admitted that this construction was

made after 2002. He also admitted that permission was not

obtained by him from the government department. He also

admitted in the cross-examination that passenger used to come in

the disputed structure. He explained that since rooms were away,

the occupation in it was not frequent.

After perusing the provisions of Sections 66 & 67 of the Act

of 1955, it is clear that the plaintiff was required to obtain

permission before raising the construction. The case of the

present plaintiff does not come within the purview of proviso to

Section 67 of the Act of 1955. As stated earlier, the plaintiff was

required to describe the particulars regarding which, he sought

injunction against the defendants. However, he intentionally

concealed the essential particulars regarding the disputed

constructions. After going through the cross-examination of the

plaintiff, it is crystal clear that disputed construction was of

commercial nature, which has already been demolished by the

defendants-respondents. The plaintiff-appellant has not amended

his plaint with a view to erect the construction already

(5 of 5) [CFA-102/2019]

demolished. No case is made out in favour of the plaintiff-

appellant for issuance of any injunction against the defendants-

respondents.

In view of the above discussion, the present first appeal is

not fit for admission, hence, is dismissed being devoid of any

merit.

However, it is made clear that the plaintiff-appellant may

apply for seeking permission for construction as per law from the

competent authority, who shall proceed in accordance with law.

No need to state that plaintiff is at liberty to seek remedy before

the competent authority, if fresh cause of action arises in his

favour.

(RAMESHWAR VYAS),J

1-Inder/-

Powered by TCPDF (www.tcpdf.org)