1 SBCSA NO. 114/2004 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Urban Improvement Trust, Bikaner Vs. Gordhan Dass and Others S.B.Civil Second Appeal No. 114/2004 ......... Date of Judgment : 12.01.2010 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. B.R.Mehta for the appellant. Mr. Sridhar Purohit for the respondent No.1 Mr. R.K.Thanvi for the respondent No.2. None present for the respondents No.3 and 4 though served. BY THE COURT Reportable This civil second appeal under Section 100 of the Code of Civil Procedure (for short 'the Code' hereinafter) is directed against the judgment and decree dated 16.4.2004 passed by District Judge, Bikaner (for short 'the first appellate court' hereinafter) in Appeal Decree No.30/04 whereby the appeal filed by plaintiff respondent Gordhan Dass came to be allowed and a decree of permanent injunction in favour of plaintiff respondent Gordhan Dass and against the appellant defendant Urban Improvement Trust, Bikaner (for short 'the UIT' hereinafter) was passed. Hence this second appeal by the appellant defendant UIT. I have heard learned counsel for the parties. Carefully gone through the judgment and decree of the first 2 SBCSA NO. 114/2004 appellate court as also the judgment and decree dated 23.2.2004 passed by Additional Civil Judge (Senior Division), No.1, Bikaner (for short 'the trial court' hereinafter) in Civil Original Suit No.3/04 whereby the suit filed by plaintiff respondent Gordhan Dass was partly decreed in respect of land bearing Khasra No.284/83. It is contended by learned counsel for the appellant that merely suit for permanent injunction is not maintainable unless a relief for declaration of title is sought. It is further contended that the Civil Court has no jurisdiction to hear and decide the suit when the land for which the permanent injunction was sought by the plaintiff respondent was subject matter of the acquisition under the provisions of Section 52 of the Urban Improvement Trust Act, 1959 (for short “the Act of 1959” hereinafter). It was also contended that the suit as such was not maintainable in absence of the State being a party to the suit. According to learned counsel for the appellant, the plaintiff respondent failed to implead the State as party respondent and therefore, the suit is not maintainable for want of necessary party. Learned counsel appearing for the respondents supported the judgment and decree impugned and contended that the plaintiff respondent filed the suit for injunction on the basis of his possession over the disputed land through a registered sale deed and therefore, there is no requirement for seeking relief of declaration of title. It was further contended that the registered sale deed carries presumption of genuineness and suit has been based by the plaintiff on the registered sale 3 SBCSA NO. 114/2004 deed in his favour coupled with his possession and therefore, the suit simplicitor for permanent injunction is maintainable on the facts and circumstances of the case. Mr. R.K.Thanvi, learned counsel appearing for the respondent No.2 has relied on decision of Hon'ble Supreme Court in Corporation of the City of Bangalore Vs. M. Papaiah and another AIR 1989 SC 1809. Learned counsel for the respondent has further relied on decisions in P. Buchi Reddy and Ors. Vs. Ananthula Sudhakar 1999 (suppl.) Civil Court Cases, 57 (A.P.), in Govind Anant Goltekar and Ors. Vs. Dasharath Deoba Goltekar, AIR 2006 Bombay, 174 and a Division Bench decision of Bombay High Court in Smt. Yeshwanti Shrirang Pai and Ors. Vs. Smt. Sunita Waman Pai, AIR 2006 Bombay, 289. Learned counsel appearing for the appellant has relied on decision of Hon'ble Supreme Court in S.P.Subramanya Shetty and Others Vs. Karnataka State Road Transport Corporation and Others, AIR 1997 SC 2076 on the point of jurisdiction of Civil Court and in Pratap and another Vs. State of Rajasthan and Others AIR 1996 SC 1296 as also in U.P.Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and Others, AIR 1996 SC 1170. Mr. Sridhar Purohit counsel for the respondent No.1 has also relied on decision of Hon'ble Supreme Court in U.P. Jal Nigam, Lucknow and another Vs. M/s. Kalra Properties (P) Ltd. (supra). So far as the contention raised by learned counsel for the appellant that a Civil Court has no jurisdiction to try the suit 4 SBCSA NO. 114/2004 in respect of the land which was subject matter of acquisition under Section 52 of the Act of 1959, learned counsel appearing for the respondents contended that the acquisition proceedings is void and nullity in absence of notice to the land owner as according to learned counsel for the respondents, the land in question has been purchased by the respondent plaintiff by a registered sale deed way back in the year 1970 and acquisition proceedings took place in the year 1972 and therefore, in absence of notice to its true owner, the land acquisition proceeding is void and nullity and in a case where the proceeding is void and nullity, Civil Court has jurisdiction to try and decide the suit. Learned counsel for the respondent has relied on decision of Hon'ble Supreme Court in Firm Seth Radha Kishan (deceased) represented by Hari Kishan and Others Vs. Administrator Municipal Committee, Ludhiana, AIR 1963 SC 1547, Union of India Vs. Tarachand Gupta, 1971 (1) SCC 486 and decisions of this Court in Anil Kumar and Others Vs. The State of Rajasthan and Others RLW 1999 (1) Raj. 356 (DB). He has also relied on a decision of this Court in Banshidhar and Anr. Vs. Ram Narain, 1997 WLC (Raj.) UC, 676, in Smt. Kaushalya Devi Vs. State of Rajasthan, RLW 1989 (2), 380 and in Hira Lal and Another Vs. Gajjan and Others (1990) 3 SCC 285. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties. Carefully gone through the record of both the courts below and the judgment and decree passed by the trial court as also the first appellate court. The plaintiff respondent Gordhan Dass filed a civil 5 SBCSA NO. 114/2004 suit before the trial court seeking relief of permanent injunction against the appellant defendant UIT and respondents No.2,3 and 4 restraining the appellant defendant UIT from interfering with the peaceful possession of the land bearing Khasra No.211/81 and 239/83 measuring 3 bighas purchased by him by registered sale deed dated 9.3.70 and 16.3.70. The trial court decreed the suit in favour of the plaintiff respondent Gordhan Dass to the extent of land measuring 1 bigha bearing Khasra No.284/83, however, for rest of 2 bighas of land, no relief was granted by the trial court. The plaintiff respondent Gordhan Dass preferred an appeal before the first appellate court and the first appellate court by judgment and decree impugned dated 16.4.2004 while allowing the appeal decreed the entire suit filed by the plaintiff respondent Gordhandass seeking permanent injunction against appellant defendant UIT directing the appellant defendant UIT not to interfere with the peaceful possession and use and occupation of the plaintiff without due process of law. The plaintiff respondent came with a case that he and respondent defendants No.2 to 4 namely Narayandass, Kanhaiyalal and Ganeshram purchased land bearing Khasra No.211/81 and 239/83 measuring two and half bigha by registered sale deed from its khatedars namely Abdul Rasid, Gos Mohd., Mohd. Aamin and Ms. Gulshan on 02.03.1970 which was registered in the office of Sub-Registrar on 9.3.1970 and remaining half bigha also came to be purchased by them by registered sale deed on 16.3.1970 which came to be registered in the office of the Sub- Registrar on 27.3.1970 and since the purchase of the land by registered sale deeds as aforesaid, the plaintiff Gordhan Dass 6 SBCSA NO. 114/2004 and the defendant respondents No.2 to 4 came in possession of the land under a valid title. According to the plaintiff respondent, the appellant defendant UIT is interfering with the peaceful possession of the aforementioned land and therefore, the appellant defendant UIT may be restrained by a decree of permanent injunction. In reply to the suit filed by the plaintiff respondent No.1 Gordhan Dass, the appellant defendant UIT filed written statement. In para No.1 of the written statement, the appellant defendant admitted that the plaintiff respondent and the respondent defendants No.2 to 4 purchased the land by registered sale deed bearing Khasra No. 211/81 and 239/83 measuring 3 bighas. Thus, the title of the land in dispute has been admitted by the appellant defendant UIT in the written statement. It has also been admitted in the written statement that out of 3 bighas of land, one bigha of land has been used for installing a Petroleum Outlet by getting the land converted from agriculture to non-agriculture use and the District Collector, Bikaner has issued No Objection Certificate for installing the Petroleum Outlet and Petroleum Outlet has been established thereon. However, the appellant defendant UIT came with a plea that the land bearing Khasra No. 294/83 measuring 24 bighas and 12 biswas came to be acquired by the appellant defendant UIT by paying compensation to their recorded Khatedars. So far as rest of the land of said Khasra is concerned, the appellant defendant UIT came with a plea that no acquisition proceedings have been initiated. Thus, from the facts emerging from record, it is clear that the plaintiff respondent and the defendants respondents No.2 to 4 purchased 3 bighas of land bearing 7 SBCSA NO. 114/2004 Khasra No. 211/81 and 239/83 by two different sale deeds dated 2.3.1970 and 16.3.1970 which came to be registered in the office of Sub-Registrar on 9.3.1970 and 27.3.1970 respectively and to this extent there is no dispute between the parties. So far as one bigha of land which was subsequently got converted for installing petroleum outlet by its purchaser, the plaintiff respondent and defendant respondents No.2 to 4 and having obtained No Objection Certificate from District Collector, Bikaner for installing Petroleum Outlet and having established the same, to that extent also there is no dispute. As to whether a suit of permanent injunction on the facts and circumstances narrated herein above without seeking relief of declaration of title is maintainable or not, in my view, when the plaintiff respondents specifically came with a case that they have purchased the land by two sale deeds noticed above way back in the month of March 1970 and since then have been in peaceful possession under a valid title and their title having not been disputed even by the contesting appellant defendant UIT in its written statement, there is absolutely no need to seek the relief of declaration of title and, therefore, suit for permanent injunction as framed by plaintiff respondent Gordhandass is maintainable. In Corporation of the City of Bangalore Vs. M. Papaiah and another (supra), Hon'ble Supreme Court held that suit for decree of perpetual injunction restraining defendant from interfering with the possession of plaintiff over the land in dispute, such suit could not be dismissed on the ground of non- seeking of relief of declaration of title specifically in the plaint. In that case, the plaintiff therein filed a suit for a decree of 8 SBCSA NO. 114/2004 perpetual injunction restraining the defendant Corporation from interfering with possession of plaintiff over land in dispute. The case of the Corporation was that the disputed area was acquired for using it as burial ground under Govt. Order and compensation was paid to the plaintiff out of Municipal funds and land was in possession of defendant since then. The plaintiff's case was that the alleged Govt. Order was cancelled and land was settled under another Govt. Order with persons who subsequently sold it to plaintiff. The plaintiff also got his name entered in revenue records. The suit was decreed by the trial court but the decision was reversed in first appeal. The plaintiff's second appeal was allowed by the High Court and the decree of trial court was restored. The Hon'ble Supreme Court held that foundation of claim of plaintiff was title which was pleaded in earlier part of plaint and for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion. The plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the Corporation. In P. Buchi Reddy and Ors. Vs. Ananthula Sudhakar (supra), Andhra Pradesh High Court in para 13 of the Report observed as under:- “13. There is also no substance in the contention raised by the learned counsel for the respondent that the plaintiffs' suit is not maintainable without seeking for declaration of title. The learned counsel for the respondent also contends that the defendant disputed the title of the plaintiffs with respect to the suit land and in spite of such denial of title, the plaintiffs did not choose to get the plaint amended 9 SBCSA NO. 114/2004 seeking declaration of title. It is not the law that the plaintiff should get his plaint amended as soon as the plaintiff's title is disputed in the written statement filed on behalf of the defendant in a suit for injunction filed under Section 38 of the Specific Relief Act. It is well settled that in a suit for injunction the primary question to be considered is one of possession on the date of filing of the suit. Of course, the question of title also may be gone into incidentally. It is also well settled that a person in possession though without title, can resist interference from another who has no better title than himself and get injunction. Section 38 of the Specific Relief Act, 1963 deals with the grant of perpetual injunction. Under sub-section (3) of Section 38 a perpetual injunction may be granted to the plaintiff when the defendant invades or threatens to invade the plaintiffs right to or enjoyment of property where the invasion is such that compensation in money would not afford adequate relief and where the injunction is necessary to prevent multiplicity of judicial proceedings. In Swaminatha V. Narayana Swamy, AIR 1936 Mad.936 it is held that where the allegations of the plaintiff are that he is in lawful possession of the properties and that his possession is threatened to be interfered by the defendant, plaintiff is entitled to sue for a mere injunction without adding prayer for declaration of his rights. A division Bench of Bombay High Court in Fakir Bhai V. Nagan Lal, AIR 1951 Bom. 380 held that it is not necessary for the person claiming injunction to prove his title to the suit land and that it would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person who has no title whatsoever. In M.Kallappa Shetty V. M.V. Lakshminarayana Rao. AIR 1972 SC 2299, the Apex Court also held that the plaintiff can on the strength of his possession resist interference from the persons who had no better title than himself to the suit property. In that case, the Apex Court having found that the plaintiff failed to establish his title to the suit property but the plaintiff was found to be in possession on the date of filing of the suit granted injunction in favour of the plaintiff. In Chepana Peda Apalaswamy V. Chepana Appala Naidu (1996) 2 Andh. LT 389 my learned brother C.V.N.Sastry, J. also took the same view 10 SBCSA NO. 114/2004 that a suit for bare injunction without a prayer for declaration of title is maintainable.” In Govind Anant Goltekar and Ors. Vs. Dasharath Deoba Goltekar (supra) while considering the provisions of Section 114 and 101 of the Evidence Act, it has been held that registered sale deed carries presumption of genuineness, burden to prove that it is not genuine lies on person who alleges that it is not so. In the instant case as has been noticed above, in the written statement, the title of the plaintiff respondent and the defendant-respondents No.2 to 4 have not been disputed by the appellant defendant UIT and therefore, it cannot be said that the suit in absence of relief of declaration of title is not maintainable. Even the defendant UIT did not claim any title to the land purchased by the plaintiff respondent by way of registered sale deeds way back in the year 1970. A Division Bench of Bombay High Court in Smt. Yeshwanti Shrirang Pai and Ors. Vs. Smt. Sunita Waman Pai (supra) held that where no right has been shown by the defendant over two premises occupied by plaintiff, the plaintiff is entitled to injunction to protect their possession. In view of the pleadings of the parties and the evidence adduced during trial of the case and the decisions of Hon'ble Supreme Court referred herein above, in my view, in the instant case when the plaintiff respondent and defendants respondents No.2 to 4 purchased the land in dispute bearing Khasra No. 211/81 and 239/83 measuring 3 bighas way back in the year 1970 and since then they have been in peaceful 11 SBCSA NO. 114/2004 possession under registered sale deeds i.e. under valid title as noticed above, they were hardly required to seek relief of declaration of title more particularly when the title has not been disputed by the appellant defendant UIT. So far as jurisdiction of the Civil Court is concerned, indisputably, in the instant case, the owners of the land in dispute are plaintiff respondent Gordhan Dass and defendant respondents No.2 to 4 namely Narayan Dass, Kanhaiya Lal and Ganesh Ram as they have purchased the disputed land way back in the year 1970 i.e. on 2.3.1970 and 16.3.1970 by two separate sale deeds as referred herein above and without there being notice to the true owner the appellant defendant UIT proceeded under Section 52 of the Act of 1959 for acquisition of the land of two bighas and therefore, in absence of a notice of acquisition to the true owner of the land in question, such acquisition proceeding is void ab-initio and as such nullity and for protection of possession and interference of such land, the plaintiff respondent has remedy to approach the Civil Court and the Civil Court has ample jurisdiction to try such suit under Section 9 of the Code. In Firm Seth Radha Kishan (deceased) represented by Hari Kishan and Others Vs. Administrator Municipal Committee, Ludhiana, (supra), in para 7 of the Report, Hon'ble Supreme Court held that under S.9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil Courts in respect of a 12 SBCSA NO. 114/2004 particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil Courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the Civil Court's jurisdiction is not completely ousted. A suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions. In Union of India Vs. Tarachand Gupta (supra), Hon'ble Supreme Court in para 22 of the Report observed as under:- “22. The principle thus is that exclusion of the jurisdiction of the Civil Courts is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word “jurisdiction” has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non- compliance with the provisions of the Act. 13 SBCSA NO. 114/2004 Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.” A Division Bench of this Court in Anil Kumar and Others Vs. The State of Rajasthan and Others (supra) held that a person who purchases the land after publication of notification of Sec.4 is not entitle to challenge the proceedings, he may be a person interested in compensation. In the instant case, the land came to be purchased by the plaintiff respondent and defendant respondents No.2 to 4 by registered sale deeds as referred herein above in March 1970 and this fact has not been disputed in the written statement by the appellant defendant UIT and indisputably the notification for acquisition of the land under Section 52 (2) of the Act of 1959 came to be published in the year 1972 much after the purchase of the land by the plaintiff respondent as also defendant respondents No.2 to 4 and therefore, they are entitled for the notice of such proceedings and in absence thereof, the acquisition proceeding is nullity. In Banshidhar and Anr. Vs. Ram Narain (supra), this Court held that in a case of dispute in respect of Bara shown to be part of particular Khasra number but having on it five shops constructed and such Bara is in midst of Abadi and there being no evidence to prove that Bara is being used for cultivation, such dispute relating to Bara is cognizable by civil Court. In the instant case, the land in dispute is situated in the midst of the City of Bikaner and adjacent thereto there are dwelling houses and commercial shops and thus in absence of 14 SBCSA NO. 114/2004 there being any evidence that the land is used for cultivation and for agriculture purpose, in my view, the Civil Court has jurisdiction to try the suit. Similar view has been taken by this Court in Smt. Kaushalya Devi Vs. State of Rajasthan (supra). In Hira Lal and Another Vs. Gajjan and Others (supra), Hon'ble Supreme Court held that the title to possession as adhivasi depends on the entry in the khasra of 1356 Fasli. Section 20 (b) (i) eliminates enquiries into possession in accepting the record in the khasra. In this case, the khasra entry for 1356F showed that the respondent's father therein was a sub-tenant. It is clear indication that possession of the sub- tenant continued with the appellant. The rent receipts of the year 1929 and subsequent years are not required to be proved by the respondent. These furnish evidence of possession as sub-tenant. It was not for the plaintiff-respondent to prove that the entry was correct. It was for the defendant-appellants to show that the entry had been introduced surreptitiously out of ill-will or hostility. In the absence of such proof, the genuineness has to be presumed and the entry accepted as evidence of