Rajasthan High Court - Jodhpur
Municipal Council, Pali vs Rama Rani (2023/Rjjd/013451) on 4 May, 2023
Bench: Rekha Borana
[2023/RJJD/013451]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 223/2022
Municipal Council, Pali, Through Its Commissioner.
----Appellant
Versus
1. Rama Rani W/o Shri Ramprasad Heda, R/o 5B, Friends
Colony, Pali, District Pali. (Raj.)
2. State Of Rajasthan, Through District Collector, Pali (Raj.)
----Respondents
For Appellant(s) : Mr. Rajesh Parihar
For Respondent(s) : Mr. Surendra Thanvi
HON'BLE MS. JUSTICE REKHA BORANA
Order
04/05/2023
1. The present second appeal has been preferred against the
judgment and decree dated 28.05.2022 passed by the District
Judge, Pali in Civil Appeal No.29/2015 affirming the judgment and
decree dated 03.03.2015 passed by the Civil Judge, Pali in Civil
Original No.26/2012 whereby the suit for permanent injunction as
preferred by the plaintiff was decreed.
2. The case of the Municipal Corporation is that the Courts
below erred in decreeing the suit in favour of the plaintiff as it was
established on record that the plot allotted to the plaintiff by the
Society i.e. Mahaveer Grah Nirman Sahkari Samiti Ltd. was on the
facility area which could not have been allotted in contravention to
the layout plan as sanctioned by the Town Planner.
3. Learned counsel for the appellant submitted that the
document A2, the map approved by the Town Planner, exhibited
[2023/RJJD/013451] (2 of 4) [CSA-223/2022]
on record by the defendant, clearly proved that the land allotted
to the plaintiff was of the facility area.
4. Both the Courts below specifically concluded that the
document Exhibit A2 which was a photocopy of the map alleged to
be approved by the Town Planner was not proved on record by the
defendant and therefore, the same could not have been relied
upon. The Court, while reaching to the said finding, appreciated
the complete evidence specifically statements of DW.1-Kunj Bihari
who specifically admitted that he was not aware as to who
approved the document Exhibit A2. He further admitted that the
said map no where mentioned to be of the residential colony of
Mahaveer Grah Nirman Sahkari Samiti Ltd. He also admitted that
the map was not in consonance with the actual position on site
and was erroneous. He also admitted that the land in question
was not a government land.
5. The specific admissions as made by D.W.1 being relevant and
crucial, are reproduced hereunder:
"......... ;g ckr lgh gS fd izn'kZ , 2 uD'kk fdu nLrkostksa
ds vk/kkj ij fdlus o dc rS;kj gqvk eq>s irk ugha gSA ;g
lgh gS fd izn'kZ , 2 uD'kk vly ugha gSaA "
"......... ;g ckr lgh gS fd izn'kZ , 2 uD'kk lgh cuk gqvk
ugh gSA ekSds dh fLFkfr [kljk ds foijhr fLFkfr esa izn'kZ , 2
uD'kk cuk gqvk gSaA "
"......... ;g lgh gS fd izn'kZ , 2 uD'kk esa ;g dgh ugha
fy[kk gS fd ;g uD'kk vkuUn uxj dk gSA ;g ckr lgh gS fd
izn'kZ , 2 esa ftl [kljk uEcj dk mYys[k gS mu izR;sd
[kljk uEcj dk fdruk fdruk {ks=Qy gS ;g ntZ ugha gSaA
izn'kZ , 2 uD'kk dqy fdruh Hkwfe dk cuk gqvk gS ;g Hkh muesa
ntZ ugha gSaA izn'kZ , 2 uD'kk fdlds fuosnu ij cuk;k
x;k ;g Hkh ntZ ugha gSaA "
[2023/RJJD/013451] (3 of 4) [CSA-223/2022]
"......... ;g lgh gS fd izn'kZ , 2 uD'ks esa oknxzLr Hkw[k.M
lqfo/kk {ks= es vk;k gqvk ;g ntZ ugha gSaA ;g esjh tkudkjh esa
ugha gSa fd oknxzLr Hkw[k.M dks lqfo/kk {ks= ds :i esa mi;ksx esa
fy;k x;k gks vkSj ml gsrq uxj ifj"kn~ }kjk dksbZ lqfo/kk
miyC/k djokbZ xbZ gks ,slk dksbZ nLrkost eSaus o uxj ifj"kn~
us bl i=koyh esa is'k fd;k ;k ughaA "
"......... ;g lgh gS fd ckm.Mh lqfo/kk {ks= esa cuh gqbZ gksus
ckcr~ dksbZ nLrkost gks is'k ugha fd;s gS ;g lfg gS fd uxj
ifj"kn~ oknh esa bl oknxzLr Hkw[k[k.M dh pkj nhokjh rksM+ dj
mlds dCts esa gLr{ksi djus dks vkenk gSaA "
6. In view of the specific admissions of the defendant witness
and the material available on record, it is clear that although the
defendants pleaded that the land allotted to the plaintiff was a
land earmarked for facility area, no evidence/document in support
of the said contention was placed on record. The document A2
alleged to be an approved plan/map was also only a photocopy
which did not even mention the name of the Society to which it
pertained. The burden to prove that the land belongs to the
facility area was clearly upon the defendant and it is admitted on
record that no document except the document A2 was exhibited
on behalf of the defendant to prove the same. The document
Exh.A2 has not been found to be proved on record and therefore,
both the Courts below rightly declined to place reliance on the
same. Further, it is also proved on record that the plaintiff was
allotted the plot in question by the Society and after the said
allotment, he deposited the requisite amounts qua the conversion
and penalty to the competent authority. The findings as reached
[2023/RJJD/013451] (4 of 4) [CSA-223/2022]
by both the Courts below are totally in consonance with the
evidence and the material available on record.
7. In view of the same and in view of the fact that the findings
are totally factual in nature, this Court does not find any
substantial question of law in the present appeal.
8. The present second appeal is therefore, dismissed.
9. All the pending applications also stand dismissed.
(REKHA BORANA),J
10-T.Singh/-
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