1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : Tehsildar, U.I.T., Udaipur & Another Vs. LRs of Ganga Bai Menaria & Others. (S.B. Civil Second Appeal No.6/2009) DATE OF JUDGMENT : July 14th, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Reportable Mr. P.R. Mehta for the appellants. Mr. J.P. Joshi for the respondent(s). BY THE COURT : Instant second appeal has been filed under Section 100, C.P.C. by the defendants against the judgment and decree dated 10.11.2006 passed by the Addl. District Judge No.3, Udaipur in Civil Appeal No.64/2004, whereby, learned first appellate Court reversed the judgment and decree dated 04.08.2004 passed by the Civil Judge (Jr. Dn.), City (South), Udaipur in Civil Original Suit No.153/1999. Brief facts of the case are that a suit was filed by plaintiff Smt. Ganga Bai Menaria, who died during the pendency of the suit, for permanent injunction against the defendant-appellants pleading inter alia that she is 2 in possession of the plot situated in village Madri Savina Road. Total land of the plot is 35 yd X 38 yd i.e., 1330 Sq yd. The said plot is of her ownership and possession and there is construction upon 20 ft X 30 ft area of the plot. According to the pleadings of the plaintiff, though the respondents have nothing to do with the said plot but the Tehsildar, U.I.T., Udaipur issued a notice to the power of attorney holder of the plaintiff Smt. Ganga Bai under Section 92 for vacating the possession and it was apprehended that they will demolish the construction raised on the said plot. It was pleaded before the Court that the said plot was purchased by her from the Gram Panchayat Titardi on 13.12.1959 and boundary wall was constructed in 1960, therefore, there was no right left with the defendants to demolish the construction and take possession from the plaintiff. A written-statement was filed and all the allegations were refuted by the defendants and it was specifically stated that the land in question is situated in Tehsil Girwa village Madri Paneriyan, Aaraji No.1165 (old khasra 838) and, since long, the said land is 'gochar' meant for grazing of the village cattle. It is also stated that there was no right with the Gram 3 Panchayat to allot the land and it is specifically stated further that there was no possession in favour of the plaintiff and she has recently tried to make encroachment over the plot in question and illegally constructed a room in the form of a shop and, as and when, information was received in the U.I.T. with regard to raising construction, they proceeded to take action in accordance with law, therefore, as per the defendant-appellants, there was no right accrued to the plaintiff to stay in possession because the said land is 'gochar' land in respect of which no patta could be issued by any authority. According to the appellant-defendants, the said land was later on transferred to the U.I.T. because it came to fall within urban area. Therefore, after transfer of the land to the U.I.T. when it became urban area, all powers were left with the U.I.T. and nobody was entitled to make encroachment over the land. After filing of the written-statement, seven issues were framed by the trial Court for adjudication. At the trial, 5 witnesses were examined from the side of the plaintiff and 3 documents were exhibited. Defence examined D.W.-1 Inderlal Sharma and produced Ex.- A/1 to Ex.-A/8 before the Court. Evidence having thus 4 been led by the parties, the trial Court proceeded to decide the suit. After considering the entire evidence, the learned trial Court dismissed the suit filed by the plaintiff-respondent and it was held that there was no right in favour of the plaintiff to retain possession of the land in question. Aforesaid judgment and decree dated 04.08.2004 was challenged before the District Judge, Udaipur, who transferred the case to the Court of Addl. District Judge No.3, Udaipur for deciding the appeal. Learned first appellate Court accepted the appeal and set aside the judgment and decree dated 04.08.2004 passed by the trial Court and decree for permanent injunction was granted in favour of the plaintiff restraining the defendants (appellants herein) from disturbing the plaintiff to enjoy the peaceful possession of the plot in question. In this second appeal, the judgment of the first appellate Court is under challenge. Learned first appellate Court held that it is not proved by the defendant U.I.T. that the Gram Panchayat Titardi was not having the right to sell the property whereas the plaintiff proved before the Court that patta was validly granted by the Gram Panchayat Titardi and said 5 assertion was proved by P.W.-4 Ranglal and P.W.-5 Bhawani Shanker who were members of the Gram Panchayat Titardi at the relevant time when patta was issued to the plaintiff. Patta issued by the Gram Panchayat Titardi was produced before the Court and the same was proved by P.W.-4 Rang Lal and P.W.-5 Bhawani Shanker in whose presence the then Sarpanch of the Gram Panchayat Titardi, Khushal Singh put his signature and patta was issued. Learned lower appellate Court, therefore, gave finding that the plaintiff has proved that patta was rightly issued by the Gram Panchayat. Learned counsel for the appellant argued that the learned first appellate Court has committed an error while deciding issues No.1, 2, 3 and 5 in favour of the plaintiff-respondent. According to learned counsel for the appellant U.I.T. learned lower appellate Court overlooked the evidence produced on behalf of the appellants, therefore, the entire finding is based upon misreading of facts. Learned counsel for the appellant vehemently argued that there was no power left with the Gram Panchayat Titardi in the year 1959 to grant any patta in favour of the plaintiff because the land in question was gochar land. 6 I have carefully considered the finding arrived at by the first appellate Court. Strangely enough, case of the appellants is that the said disputed land comes in the urban area and is allotted to the U.I.T. for urban purposes. If it is so, then, contention of the U.I.T. cannot be accepted that it was gochar land. Moreover, admittedly the land was allotted to the plaintiff in the year 1959 and this fact is proved by P.W.-4 Rang Lal and P.W.-5 Bhawani Shanker who were members of the Gram Panchayat at the relevant time. On the face of the record, obviously the trial Court ignored this material evidence which was subsequently appreciated by the learned lower appellate Court and, accordingly, the appellate Court held that if patta is in existence which is granted by a statutory body, Gram Panchayat Titardi, then, the plaintiff is entitled for decree of permanent injunction. In my opinion, therefore, the learned lower appellate Court has not committed any error while appreciating the evidence. The contention of the learned counsel for the appellants with regard to the ground that without seeking any declaration the suit itself is not maintainable as has been held by this Court in the judgment reported in 1996 (3) WLC 155, Bhurji & 7 Another Vs. U.I.T., Alwar & Another is, therefore, not tenable because, in this case, the plaintiff has come up before the Court with documentary evidence that patta was issued by statutory body, Gram Panchayat, Titardi and plaintiff proved the patta said to have been issued in 1959, upon which, she raised construction in 1960. The judgment cited by learned counsel for the appellants is, therefore, altogether different. In this view of the matter, no substantial question of law emerges in this second appeal. As a result, while holding that the finding arrived at by the learned first appellate Court is based upon proper appreciation of evidence on record, I deem it just and proper to dismiss this second appeal with cost. The appeal is, accordingly, dismissed with cost. (Gopal Krishan Vyas) J. Ojha, a.