Municipal Board vs Surjeet Kishor
2023 Latest Caselaw 4801 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 96/2020

1. Municipal Board, Nohar Through Its Executive Officer, Municipal Council, Nohar, District Hanumangarh (Raj.)

2. Executive Officer, Municipal Council, Nohar, District Hanumangarh (Raj.)

----Appellants Versus Surjeet Kishor S/o Shri Ramkishor, B/c Jat, R/o Sector No. 5, Ward No. 29, Nohar, Tehsil Nohar, District Hanumangarh.

                                                                ----Respondent


For Appellant(s)         :     Mr. Rajesh Parihar
For Respondent(s)        :     Mr. Rishabh Shrimali



            HON'BLE MS. JUSTICE REKHA BORANA

                                    Order

17/05/2023

1. The present second appeal has been filed against the

judgment and decree dated 20.11.2019 passed by Additional

District Judge No.2, Nohar, District Hanumangarh affirming the

judgment and decree dated 26.04.2019 passed by Civil Judge,

Nohar, District Hanumangarh in Civil Original Case No.127/2018

whereby the suit for issuance of a patta in favour of the plaintiff

has been decreed.

2. Learned counsel for the appellants submitted that a decree

as a mandate could not have been granted in the present matter

as it is within the exclusive domain of the Municipal Board to issue

a patta in terms of the Rajasthan Government Grant Act, 1961

after confirming the eligibility of the person applying. Learned

counsel submitted that the conditions as incorporated in the

(2 of 3) [CSA-96/2020]

notification dated 15.09.1983 had also to be complied with by the

person applying for the patta under the State Grants Act. The

said compliance being a prerequisite, admittedly, in the present

matter, having not been complied with, no decree could have been

passed in favour of the plaintiff. Learned counsel further

submitted that the burden to prove the fact of having applied and

having completed all the formalities required was upon the

plaintiff and admittedly, no alleged application preferred for

issuance of patta has been placed on record or exhibited by the

plaintiff. Meaning thereby, it was not proved on record that the

plaintiff ever applied for patta. In the alternate, even if assumed

that the plaintiff ever applied, it is admitted on record that the

same was denied by the respondent-authorities and the said

order/communication of denial having not been challenged has

become final for all purposes.

3. Per contra, learned counsel for the respondent submitted

that it was an admitted case on record that the predecessors of

the plaintiff were in possession of the property since more than 40

years and therefore, in terms of the basic principles of law that

"facts admitted need not be proved", the plaintiff was not required

to prove the same. Learned counsel admitted that the application

vide which he applied for issuance of patta had not been exhibited

but the same would be of no consequence as the demand notice

as served on the respondent-authorities is admitted. Further, the

denial of his application is also admitted.

4. In view of the rival submissions made, the following

substantial questions of law arise in the present appeal:

(3 of 3) [CSA-96/2020]

i. Whether the Courts below exceeded their jurisdiction in

passing a decree in mandatory form instead of a decree in

declaratory/directory form?

ii. Whether the Courts below erred in deciding issue No.1 in

favour of the plaintiff without there being any application of

the plaintiff available on record whereby he applied for

issuance of patta?

iii. Whether the Courts below erred in not considering the effect

of non-examination of the defendant witness by the plaintiff

on his specific statement that the documents/formalities as

required were not completed by the plaintiff and therefore

the patta could not have been issued in his favour?

iv. Whether the Courts below erred in ignoring the effect of

order/communication dated 05.02.2018 whereby the

application of the plaintiff had been rejected and the order of

such rejection being not challenged?

5. Admit. Issue notice. Issue notice of the stay petition also.

Notices need not be issued as the respondent is represented by

the counsel.

6. Meanwhile the effect and operation of the impugned

judgments and decree dated 26.04.2019 and 20.11.2019 shall

remain stayed till the final disposal of the present appeal.

The stay petition stands disposed of.

(REKHA BORANA),J T.Singh/-

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