1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL SPECIAL APPEAL (W) NO.782/2002 Municipal Board, Mount Abu Vs. Damyanti Kumari (died) through LRs Date of Judgment : 29.4.2010 HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. T.S.Champawat, for the appellant. Mr. J.P.Joshi, for the respondents. BY THE COURT : (PER SAPRE,J.) This is an intra court appeal filed by respondent of Writ Petition No.2200/1980 under Section 18 of Rajasthan High Court's Ordinance, 1949 against an order dated 29.5.2002 passed by Single Judge in above writ petition. 2. By impugned order, the learned Single Judge allowed the writ filed by writ petitioner (respondent herein) and in consequence quashed impugned notices dated 17.1.1979 and 24.10.1980 issued by appellant (Municipal Board) herein to writ petitioner in relation to one property (plot) called “Jaisalmer House” by which the appellant had claimed restoration of possession of the said property consequent upon the expiry of its lease period. So the question that arises for consideration in this writ appeal is whether learned Single 2 Judge was justified in allowing the writ petition and in consequence justified in quashing the notice impugned therein? 3. This is what the learned Single Judge held while allowing the writ :- “The plot in question, according to the petitioner, was private property of the then Ruler of Jaisalmer State and same has been shown as their private property in the inventory prepared in pursuance to Article 12 of the Covenant entered between the then Ruler and the Union of India. The non-petitioners are claiming that the property belongs to Municipal Board, Mount Abu because it was Government vacant land, falling in the municipal area. The non-petitioners also submitted that this property was leased to the then Ruler of Jaisalmer on 99 years' lease by the then Ruler of Sirohi and according to the non- petitioners, above lease period expired on 13.1.1973. Thereafter, the lease period has not been extended and therefore, the non-petitioner is authorised to dispossess the petitioner. I have carefully considered the rival submissions. Not an iota of evidence has been submitted with regard to 99 years' lease made by the then Ruler of Sirohi in favour of the then Ruler of Jaisalmer with regard to plot in question. The documents submitted by non-petitioners related 3 to Bharatpur State only. The analogy that when at Mount Abu plots were given on 99 years' lease to the then ruler Bharatpur, perhaps the plots may also be allotted to other allottees on lease hold basis, is not tenable. When the petitioner has shown this property as his private property in the inventory referred above, unless and until cogent and convincing evidence is produced, it can not be held that this property was with the then Ruler of Jaisalmer on lease-hold basis. Consequently, there is merit in this petition. The same is accepted and notice Annx.3 dated 17th January, 1979 and Annx.5 dated 24th October, 1980 respectively, stand quashed.” 4. As would be clear from mere perusal of impugned order quoted supra, the dispute involved in the writ petition, out of which this intra-court appeal arises, essentially relates to a property called “Jaisalmer House” situated at Mount Abu. According to writ petitioner, the property in question is owned by them, whereas according to appellant (respondent of writ petition) i.e. (Municipal Board, Mount Abu), they are the lessor of the property in question and hence has a right to claim restoration of possession on the expiry of initial lease period from the lessee i.e. writ petitioner. It is with this background of facts, the impugned notices were issued by appellant to writ petitioner under municipal law giving rise to filing of the writ petition out of which this appeal arises, 4 which resulted in passing of the impugned order quashing the notices giving rise to filing of writ appeal by Municipal Board. 5. Having heard the learned counsel for the parties and on perusal of record of the case, we are inclined to allow the appeal and while setting aside of the impugned order, grant liberty to writ petitioners to seek appropriate remedy in civil Court in relation to their ownership rights over the property in question, which in fact they are trying to establish in the writ petition and which found favour to writ Court. 6. In our considered view, looking to the nature of dispute sought to be raised, writ petition filed under Article 226/227 of the Constitution was not the appropriate remedy for grant of relief. In effect, as would be clear from the issue, the writ petitioners were claiming a declaration of their ownership rights over the property in question whereas it was being denied by the Municipal Board by claiming the ownership rights in themselves. It is a trite law that a dispute of ownership in relation to any immovable property between the two rival claimants cannot be made subject matter of writ petition under Article 226/227 of the Constitution because it involves a factual inquiry. It can only be done by the civil Court in a properly constituted suit or by statutory forum as the case may be depending upon the facts of each case. In other words, a dispute of ownership rights over any immovable property between two rivals has to be resolved by Civil Court in a properly constituted suit and not by writ 5 Court. It is only in exceptional cases where facts are not in dispute, a writ court can entertain the grievance but not otherwise. Such does not appear to be a case so far as this case is concerned. 7. With respect, we cannot concur with the factual finding recorded by learned Single Judge while deciding the writ on the issue of ownership. A finding of this nature was not called for, nor it could be rendered in favour of either parties on facts averred and documents filed. As observed supra, the writ court instead of recording any finding on the ownership rights of parties, should have relegated them to approach the civil Court for adjudication of their rival claims by adducing proper documentary evidence. Since it was not done by writ court and hence we consider it proper in the facts of this case to do it. 8. Learned counsel for the respondents (writ petitioners) while supporting the impugned order however contended that notwithstanding availability of remedy of filing of civil suit, a writ Court in this case was justified in allowing the writ and quashing the notices. We cannot accept this submission in the light of what we have held supra. In our opinion, since parties in this case had joined the issues on the ownership rights over the property in question and hence a dispute of this nature could not be have been tried by writ Court. If tried, it would cause prejudice to parties. It was much more so because writ court too was of the view that no evidence was tendered by one party to prove their ownership. 6 9. Learned counsel for the respondent (writ petitioner) placing reliance on several decisions of Supreme Court reported in Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh & Ors. reported in AIR 1996 (SC) 691, State of Rajasthan Vs. Bhawani Singh & Ors. reported in AIR 1992 (SC) 1018, D.L.F.Housing Construction (P) Ltd. Vs. Delhi Municipal Corpn. & Ors. reported in AIR 1976 (SC) 386 and Shri Sohan Lal Vs. Union of India & Anr. reported in AIR 1957 (SC) 529 and further by placing reliance on the provisions of Rajasthan Law Reforms Act (Section 2-d), coupled with Article 12 of covenant of alleged title deed in their favour contended that writ petitioner was the real owner of property in question. Learned counsel was vehement in his submission that a dispute of this nature can certainly be gone into in writ petition and hence this Court should uphold the aforementioned order of writ Court impugned in this appeal. We have given our anxious consideration to this submission keeping in view the decisions relied on by learned counsel for the respondent referred above. Haivng gone through the same and examining it in the context of factual disputes involved, we are afraid that it would not be possible to undertake the enquiry required in this case for deciding the rights of the parties. This Court cannot decide the rights of parties attached with the property. They need to be decided only on the basis of documents relied on by both the parties. A writ Court is not competent to give a declaration of title over the disputed 7 property. If we accept the submission of learned counsel for the respondent then it would amount to grant of declaration in their favour by placing reliance on the documents filed by writ petitioner in the writ petition, which are required to be proved in evidence. We are, therefore, not inclined to accept this submission. 10. In view of foregoing discussion, we can not concur with the reasoning and conclusion arrived at by Single Judge. It is liable to be set aside. It is accordingly set aside. As a result, the appeal succeed and is allowed. As a consequence, the writ petition is dismissed. We, however, grant liberty to writ petitioners to pursue their remedy to get their ownership rights determined in relation to property in question in appropriate civil Forum as may be available to them qua appellant. Needless to observe, if any such remedy is resorted to by the parties then the same shall be decided strictly in accordance with law by the Court/authority as the case may be uninfluenced by any observations made by Single Judge on the issue in the impugned order as also by this Court because we too have refrained ourselves from making any observations on the merits of the claim of parties. No cost. [Dinesh Maheshwari], J. [A.M. Sapre],J. /tarun/