Rajasthan High Court - Jodhpur
State And Anr vs Pratap Singh on 6 October, 2025
[2025:RJ-JD:42695]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 228/1997
1. State of Rajasthan through the Assistant Engineer, PWD Sub
Divison, Bheem.
2. Junior Engineer, P.W.D. Bheem.
----Appellants
Versus
Pratap Singh S/o Shri Himmat Singh, R/o Bali Jassa Kheda,
Tehsil Bheem, District Rajsamand.
----Respondent
For Appellant(s) : Mr. Aishwarya Anand.
Mr. Tushar Jain.
For Respondent(s) : Mr. Pooshan for
Mr. Dilip Kawadia.
HON'BLE MR. JUSTICE BIPIN GUPTA
Order
Reserved on : 20.09.2025
Pronounced on : 06.10.2025
1. The present second appeal has been filed against judgment
and decree dated 19.03.1997 whereby the learned Appellate Court
decreed the suit of the plaintiff by setting aside the judgment and
decree dated 31.03.1993.
2. In the suit, plaintiff had claimed that the suit was simplicitor
for permanent injunction averring that the plaintiff's restaurant in
the form of cabin was situated near Bus Stand, Jassa Kheda. The
patta of the land was issued on 17.02.1975 by Tehsildar, Bheem
and since then the plaintiff had been running a hotel having the
required electricity and water connection. On 24.07.1991, when
the plaintiff was as usually earning his livelihood, the defendant
asked him to remove his cabin and if he do not remove then they
would remove with the help of bulldozer. The plaintiff had sent a
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notice to the defendants. On 30.07.1991, when the plaintiff
returned back to Bheem, the defendant got some signatures
obtained on blank papers and, therefore, the plaintiff could not
take any advice on the same. Further, there was no scheme of
widening of the National Highway and with malafide intention the
defendants were trying to dispossess him by removing the cabin
and lastly prayed for issuing permanent injunction against the
defendants.
3. The defendant filed the reply denying the averments of the
plaint and contended that the patta cannot be issued for the land
which is recorded as State Government land in revenue record.
Particularly, case bearing No.79/69 has already been decided
against the plaintiff on 15.10.1989 wherein he had been found as
an encroacher. It was further contended that in the so called patta
the land has been shown as khasra No.11 whereas the present
cabin which is existing on the disputed place is recorded as khasra
No.3759. The defendants are, therefore, entitled for removal of
encroachment. Only notice was given and there was no personal
enmity with the plaintiff. Moreover, it was argued by the
defendants that they were not demolishing the cabin but were
only shifting the cabin from the territory of the National Highway
and other people who are coming within the territory of the
National Highway which is 100 ft. wide have been given such
similar notice and thus, prayed that the suit may be rejected.
4. That the Trial Court framed the following issues:-
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"1- D;k oknh dk dsfcu iV~Vs"kqnk o dnkeh dCts"kqnk LokfeRo dh
Hkwfe esa fLFkr gSA
2- D;k izfroknhx.k oknh dks voS/k :i ls mDr iV~Vk"kqnk Hkwfe ls
csn[ky djus ij mRrk: gSA
3- D;k fooknxzLr dsfcu jk'Vªh; jktekxZ dh lhek esa vfrØe.k gSA
4- D;k oknh us tokcnkos ds fo"ks'kmRrj ds in la[;k 1 esa of.kZr
izdkj ls dsUnzh; ljdkj dks uksfVl ugha fn;k gSA
5- D;k Hkkjr ljdkj bl okn esa vko";d i{kdkj gSA
6- vuqrks'k \"
5. Issue Nos.1 and 2 were decided against the plaintiff. Issue
No.3 was decided in favour of defendant. Issue No.4 was decided
against the defendant. Issue No.5 was decided against the
defendant and on the basis of the finding of the Issue Nos.1, 2
and 3, the suit of the plaintiff was dismissed vide judgment and
decree dated 31.03.1993.
6. The plaintiff aggrieved against the judgment and decree
dated 31.03.1993 preferred first appeal before the Court of
Additional District and Sessions Judge, Rajsamand (hereinafter
referred to as "First Appellate Court"). The learned First Appellate
Court vide its judgment dated 19.03.1997 reversed the finding on
Issue Nos.1 and 2 in favour of the plaintiff. The finding on Issue
No.3 was also reversed and decided against the defendants and
on the basis of the findings so reversed, the suit of the plaintiff
was decreed in the manner that the defendants were permanently
restrained from removing the restaurant from the place of the
plaintiff either themselves or through their agent vide judgment
and decree dated 19.03.1997.
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7. The defendants being aggrieved by the said judgment and
decree preferred the present second appeal. The said second
appeal was admitted by this Court on 14.05.1998 on the following
substantial question of law:-
"On the basis of a patta issued by the Revenue
Authorities of the State of Rajasthan, the respondent-
plaintiff has been held to be entitled to possess his
plot on National Highway. The patta was of a land
which was not a revenue land. If the land belongs to
National Highway and is in the ownership of surface
Transport Ministry of Union, can State Authorities
issue a patta in relation to that land and that patta can
entitle the plaintiff for an injunction?".
8. Heard learned counsel for the parties and perused the
material available on record.
9. Learned counsel for the defendants/appellants herein
submitted that the cabin exists on khasra No.3759 whereas the
patta is of the land for khasra No.11. The plaintiff has failed to
show that how khasra No.11 and khasra No.3759 are same.
Learned counsel for the defendants-appellants further submitted
that Case No.79/69 has already been decided on 15.10.1969
wherein the plaintiff had been found as a trespasser and had been
directed to vacate the possession. Further, the plaintiff himself on
30.07.1991 had in writing informed the dependents-appellants
and admitted the fact of existence of encroachment of the cabin
on khasra No.3759 and also assured the defendants that the said
cabin would be removed. Thereafter, instead of removing the
cabin, the present suit was filed. Thus, the said suit was correctly
dismissed by the Trial Court vide judgment dated 31.03.1993 and
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the First Appellate Court had committed illegality and perversity in
reversing the finding of the issues and decreeing the suit of the
plaintiff thereof.
10. Per contra, counsel for the plaintiff/respondent herein
submitted that the plaintiff is in possession of the cabin for 36
years and is existing on the land of khasra No.11. The patta for
the same had been issued to him on 17.02.1975. Further, the
counsel for the plaintiff-respondent submitted that his signature
was obtained forcibly on the blank papers which has been utilized
later for the purpose of creating a document dated 30.07.1991.
Therefore, the Appellate Court has rightly found that the plaintiff
was to be continued in possession of the owned property and thus
granted a decree of permanent injunction in his favour which does
not call for interference by this Court in the second appeal.
11. In view of the aforesaid submission, this Court finds that the
substantial question of law which has been framed with regard to
the ownership i.e. whether the subject land belonged to the
plaintiff or the defendants. The Learned First Appellate Court has
travelled beyond the scope of the suit while holding that the land
was of the ownership of the plaintiff whereas there was no such
case of the plaintiff for declaration before the Trial Court. The First
Appellate Court while reversing the finding on issue Nos.1 to 3 has
declared that the property was of the ownership of the plaintiff in
garb of issue No.1, however, there was no relief of declaration of
ownership. More so, the plaintiff initially had claimed that his cabin
is existing on the "pattasuda" land of khasra No.11 for which the
patta had been issued on 17.02.1975 whereas the defendants had
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stated that the plaintiff's cabin is existing on land of khasra
No.3759 which is recorded in the name of PWD. The document
Ex.2 though records the fact that in khasra No.3759, 1 biswa has
been shown as gair mumkin shop but it did not record the
ownership of the plaintiff whereas it recorded the ownership of
"Mahkma PWD", Government of India, and the said settlement is
of Samvat year 2021, 2022 and 2023.
12. In absence of any concrete evidence that whether khasra
No.11 of which the patta has been issued to the plaintiff and
khasra No.3759 are same and if the plaintiff fails to prove this fact
then it cannot be held that the disputed cabin was existing either
in khasra No.11 or in khasra No.3759.
13. The plaintiff has not been able to show any document to
prove the fact that his cabin is existing in khasra No.11 rather the
documents placed on record as well as the case of the plaintiff
itself states that the cabin is in khasra No.3759. Moreover as per
Ex.2 khasra No.3759 is in the name of PWD Mahkma and even
though gair mumkin shop has been shown but name of the
plaintiff is not shown as the owner of that existing gair mumkin
shop.
14. Further, the factum of existence of the shop of the plaintiff
being on khasra No.3759 is reflected from his own notice dated
25.07.1991. Though the same has not been exhibited but has
been filed by the plaintiff himself as reflected from the list of
documents submitted by him. It is a settled position of law that
the document filed by a party could be read against the party
even if it is not exhibited. However, the said document cannot be
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read against the opposite party. This position of law is supported
by the judgment of Hon'ble Delhi High Court in the case of
Rudnap Export-Import vs. Eastern Associates Co. and Ors.;
AIR 1984 Delhi 20 wherein the Court while reiterating the said
position of law held as under:
"25. During the course of arguments the defendants
have referred to the letter dt. 31 st July, 1965 from
Andhra Pradesh Government to the plaintiff and also
a letter dt. 9th Aug. 1965 from the plaintiff to the
Andhra Pradesh Government besides a letter dt. 17th
Dec, 1969 by the plaintiff to the defendants. These
three letters were filed by the plaintiff. These
documents were not proved by the plaintiff but the
same are available on record, I have taken into
consideration these three letters in coming to the
above conclusion that it was not a transaction of sale
between the parties. Learned counsel for the plaintiff
submits that these are unproved documents and
therefore cannot be looked into. Learned counsel for
the defendants on the other hand submits that these
are documents produced by the plaintiff and
therefore no evidence is required to prove these
documents against the plaintiff. These documents
have been filed by the plaintiff and they are an
important link in the correspondence between the
parties. These documents can be looked into and the
defendants are entitled to take advantage of these
letters against the plaintiff. In the first letter dt. 31st
July, 1965 the Andhra Pradesh Government had
sought information from the plaintiff with the
intention of placing an order for the supply of
tractors with the manufacturer i.e. the plaintiff
directly, In the second letter dt. 9th Aug. 1965 the
plaintiff informed the Andhra Pradesh Government
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that the defendants were their exclusive agents and
that the order should be placed by it with the
defendants. The third letter dt. 17th Dec, 1969 from
the plaintiff to the defendants is in reply to the
defendants' letter dt. 10th Dec, 1969 (Ex, P. 123),
In the last letter the plaintiff has observed, "we
regret to say that your attitude is not at all in line
with a pleasant and traditional relation that should
exist between a Principal and Agent". I am of the
opinion that a letter filed by a party may be looked
into without any further proof at the instance of the
opposite party. I, therefore, hold that the defendants
were acting as agents and were not the purchasers
of these tractors. Both issues are decided
accordingly."
15. Therefore, this Court finds that there was complete lack of
proof of ownership of the disputed cabin to be existing on the
ownership property of the plaintiff. However, the possession was
sufficiently proved to be existing on the date of filing of the suit
and in such situation only decree which could have been passed
by the Learned Appellate Court was ought to have been to the
effect that the plaintiff may not be dispossessed without following
the due process of law.
16. The substantial question of law which has been framed by
the Court is required to be answered in favour of the appellant for
the reason that the plaintiff-respondent had utterly failed to prove
the ownership of the property wherein his cabin had been existing
and except the existence of his cabin nothing else has been
proved. In absence of any declaration or counter claim in respect
of the patta, the Learned Appellate Court had committed illegality
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in deciding Issue No.1 in respect to ownership also in favour of the
plaintiff and against the defendants.
17. In the facts and circumstances of this case, only fact which
stood proved by the plaintiff was that he was in possession of the
disputed cabin situated on the disputed land as on the date of
filing of the suit and, therefore, at the best the suit could have
been decreed restraining the defendant from dispossessing him
without following the due process of law.
18. Thus, substantial question of law which has been framed is
answered in affirmative to the effect that patta could not have
been relied upon when there was no declaration or counter
declaration in respect to patta to either validate or invalidate the
same. Only fact which could have been decided by the First
Appellate Court could be in respect to possession as the suit was
simplicitor for possession. Therefore, the finding on Issue Nos.1 to
3 as decided by the First Appellate Court is upheld to the extent of
possession and set aside as to ownership. The defendants are
restrained to the effect that plaintiff may not be displaced without
following the due process of law.
19. Accordingly, the second appeal is partly allowed. The decree
is modified to the effect that the defendants are restrained from
displacing the plaintiff's restaurant from the place existing without
following due process of law.
20. No order as to costs.
(BIPIN GUPTA),J
33-sumer/-
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