Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 1/12 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Mohd. Yusuf vs. RIICO & Others. S.B.CIVIL SECOND APPEAL NO. 6/2006 DATE OF JUDGMENT : 3rd September, 2008 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.R.R.Nagori, for the appellant. Mr.N.M.Lodha, for the respondents. BY THE COURT: 1. This second appeal has been filed by plaintiff Mohd. Yusuf against the defendant respondent Rajasthan Industrial Development and Investment Corporation Limited (`RIICO' for short) and another private defendant M/s Jayanti Textile, Pali being aggrieved by the concurrent judgments of two courts below in a suit for injunction filed by plaintiff seeking to restrain the respondent the RIICO from making allotment of plot no. E-34 in industrial area situated in khasra no.990 in favour of any third party and not to dispossess the plaintiff from the said plot of land. Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 2/12 2. By the judgment dated 28/1/2005, the learned District Judge, Pali dismissed the plaintiff's appeal no. 11/96 against the judgment of the learned trial court dated 3/9/1996 dismissing the original suit no.106/91. 3. In brief the facts leading to filing of this second appeal are thus. The plaintiff came with the case that out of khasra no. 990 measuring 105 bighas, he purchased 02 bighas of land from one Lalchand Rangraj and Prakash Chand on 30/7/1974 by registered sale-deed and when the defendant RIICO decided to develop the said land as industrial land in pursuance of meetings held with the Collector with various industrialists on 5/11/1976 and 4/11/1977 it was decided that various landholders would surrender their land in favour of the State Government and would be allotted industrial plots instead of such surrender without any payment but taking development charges @ 4.50 per sq.mtr. Plaintiff submitted that he thus surrendered his land to the State Government in favour of the Land Acquisition Officer and requested the State Government to allot him the industrial plot. In the plaint, the plaintiff submitted that he was allotted plot no.G-105 and 106 instead of plot no. E-34 over which he was in possession and, therefore, he represented to the Collector that he be allotted Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 3/12 industrial plot no.E-34 only and he may not be dispossessed from that industrial plot where he was already running the textile bleaching industry. When said representation did not yield anything and plaintiff came to know that plot no.E-34 has been allotted to defendant no.3 – M/s Jayanti Textile, Pali, he filed the present suit for injunction on 5/2/1982 without impleading defendant no.3 – M/s Jayanti Textile, Pali, who was later on impleaded by the trial court on 23/8/1982. Plaintiff in support of his case produced P.W.1 – Mohd Yusuf (himself), P.W.2 – Rangraj, P.W.3 – Mohd. Ibrahim, whereas, defendants produced D.W.1.Ashok Kumar, D.W.2 - Ramesh Chand, D.W.3 – Sajjan Raj & D.W.4 – Jayanti Lal. Both the parties also produced documentary evidence of allotment of land in question. 4. Learned trial court after recording such evidence and on the basis of documentary evidence framed as many as 07 issues including the relief and all the issues were decided against the plaintiff and in favour of defendants and the learned trial court found that plaintiff was not in possession of the industrial plot no.E-34 at the time of filing of the suit and also that he had accepted the allotment of plots no. G-105 and 106 allotted to him on 3/1/1977 and had deposited a sum of Rs.1717.50 on 6/7/1979. Learned trial court also found that Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 4/12 plot no.E-34 was allotted on the same date i.e. 3/1/1977 in favour of defendant no.3 – M/s Jayanti Textile, Pali and they had also deposited the lease money and, therefore, lease deed was executed in favour of said defendant no.3 on 17/12/1979 and possession of the said plot E- 34 had also been given to said defendant no.3. Thus, trial court found that the plaintiff was not entitled to permanent injunction as prayed for by him and thus rejected the suit. 5. The first appellate court dismissed the appeal filed by the plaintiff by a more detailed order and after discussing the evidence in detail. Learned appellate court also found that the plaintiff had been allotted the plots no.G-105 and 106 in lieu of surrendering his land and was never allotted plot no.E-34, which was allotted in favour of defendant no.3 – M/s Jayanti Textile, Pali and lease deed in their favour was already executed on 17/12/1979 and possession of the same had also been given to them, therefore, suit filed on 5/2/1982 seeking injunction against the defendant RIICO to restrain them from allotting the said plot No.E-34 in favour of third party could not be decreed nor there was any question of dispossessing the plaintiff from the said plot of land as he was never in possession of the same and his claimed possession over the said plot was nothing but in the capacity Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 5/12 of trespasser or encroachee. 6. Being aggrieved by the said judgments of courts below, the plaintiff has preferred this second appeal. 7. Mr.R.R.Nagori, learned counsel for the appellant-defendant vehemently submitted that courts below have rendered perverse findings and there is misreading of evidence by the courts below, therefore, substantial question of law arises in the present appeal requiring determination by this Court. He urged that the plaintiff had surrendered his land measuring 02 bighas in favour of State Government as the State Government had assured that industrial plots as far as possible on the same place would be allotted to the person surrendering such land and, therefore, since plaintiff surrendered the land in question and continued to remain in possession thereof, therefore, he could not be dispossessed from the land in question. He pointed out that vide Exhibit -A/12 and Exhibit-A/13, the Commissioner's report and police report dated 18/2/1982 on a complaint filed by the plaintiff, it was found that his industry for bleaching of textile clothes was working there, therefore, his possession was established at the time of filing of the suit. Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 6/12 8. Mr.Nagori further urged that lease deed in favour of defendant no.3 M/s Jayanti Textile, Pali was not registered and since defendant- respondent no.3 did not file any written statement before the trial court, no evidence led by him could be read for rejecting the claim of plaintiff. Mr. Nagori further emphasized that though plot no.G-105 and 106 were allotted in favour of plaintiff but plaintiff always remained under bonafide belief that since the industry running on the said plot was his and if that was plot no.E-34, he could not be dispossessed from that place as the plaintiff had never surrendered the possession of the land in question and he was in possession of the land in question on the date of filing of the suit, the plaintiff was entitled to grant of injunction in his favour and, therefore, the Courts below erred in rejecting the suit filed by the plaintiff. 9. Mr.N.M.Lodha appearing for the respondent-defendant no.3- M/s Jayanti Textile, Pali on a caveat, however, strongly opposed the submissions made by the learned counsel for the appellant and submitted that findings of facts arrived at by the two courts below concurrently on the basis of evidence available before them cannot be said to be perverse or wrong in any manner and no substantial question of law arises in the present appeal for determination by this Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 7/12 Court under Section 100 CPC. He urged that when the plot in question E-34 was allotted in favour of defendant no.3 way back on 3/1/1977 and lease deed was also executed in favour of defendant appellant no.3 on 17/12/1979 and on the same date 3/1/1977 other plots no.G-105 & 106 were allotted in favour of plaintiff himself and he had accepted said allotment by depositing the money vide Ex.6, there was no question of any dispossession of the plaintiff from the said plot No.E-34. He urged that there was no condition in acquisition of land by the State Government that the same land would be given back to the person surrendering the land in question at the same place. Once land in question was surrendered, the possession thereof automatically stands surrendered and handed-over to the State Government and, therefore, in the eye of law the plaintiff stood dispossessed from the land in question in the year 1976 itself when he surrendered the land in question and once the allotment of plots no.G- 105 and 106 was made in his favour on 3/1/1977 and he accepted the said allotment by paying the lease money in question, there was no question of giving plot no.E-34 to the plaintiff. He submitted that it was clearly established before the courts below with the oral evidence and documentary evidence of various persons in question that possession of the plot no.E-34 was given to defendant no.3 on Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 8/12 17/12/1979 when the lease deed was executed in its favour, therefore, there was nothing to believe that the plaintiff was in possession of said plot noE-34. He referred to Exhibit-A/12 and A/13 relied upon by the learned counsel for the appellant-plaintiff and submitted that said commissioner's report and police report are of little consequence as they cannot be read against the documentary evidence in favour of defendant no.3 and possession of the land in question having been given to it under the said lease deed by RIICO, the alleged possession of plaintiff is nothing beyond as that of a trespasser and as an encroachee and nothing turned on that. He submitted that plaintiff was not in possession of plot no.E-34 at all. He submitted that the plaintiff was, therefore, not entitled to any injunction and the courts below have not erred at all in rejecting the suit and against said concurrent findings of facts no substantial question of law arises. 10. I have heard learned counsels at length and given my thoughtful consideration to the material on record and the judgments of both the courts below. 11. This Court is of clear opinion that no substantial question of law arises so as to require any interference with the concurrent Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 9/12 judgments of courts below. The plaintiff obviously laboured under misconception that after surrender of the land in question by him, he will be allotted the same land as an industrial plot by respondent RIICO. The allotment of industrial plot in question by RIICO after the land in question was acquired by the State Government for RIICO was to be made by RIICO and it was for RIICO, a public body constituted under the provisions of Companies Act, to make allotment of the industrial plots developed by it. The plaintiff absolutely failed to prove from any document on record that there was any assurance or commitment on the part of State Government or RIICO to give the same land in question which was surrendered by him as industrial plot to the plaintiff. Therefore, the entire foundation and premise of the plaintiff's case is baseless and non-existent. The plaintiff might have surrendered his two bighas of land purchased by him for securing allotment of industrial plot but it is beyond pale of doubt that said plot of land was allotted to him in the form of G-105 and 106 plots. It is also established from record that he accepted the allotment of plot no.G-105 and 106 vide Ex.6 by depositing Rs.1650/- under said allotment letter with interest on account of delay in payment of development charges and lease money under the said allotment letter amounting to Rs.1717.50. Therefore, once these things took place in Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 10/12 the year 1977 upto the year 1979, there was no question of claiming any possession by the plaintiff in the year 1982 when the present suit came to be filed by him. The plot no.E-34 stood allotted in favour or defendant no.3 on 3/1/1977 itself and lease deed in favour of defendant no.3 was also executed by the defendant RIICO on 17/12/1979. The said lease deed Ex.A/14 clearly makes a stipulation that possession of the plot no.E-34 is also handed-over to the allottee and lessee M/s Jayanti Textile, Pali. 12. The contention of learned counsel for the appellant that said lease deed is not registered and, therefore, is inadmissible evidence is of little help to appellant-plaintiff because he has not challenged the title of the defendant no.3 under the said lease deed Ex.A/14. The question of admissibility of said evidence is not directly in issue because it is not the cancellation of that lease deed which is sought in the present suit. It is well settled that a lease deed conferring title and possession without registration can be taken into consideration as an evidence for collateral purposes unless title itself is challenged, which is obviously not the case, as the present suit filed by the plaintiff was only for seeking injunction against his dispossession. Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 11/12 13. Further contention of Mr. Nagori, learned counsel for the appellant, that vide Ex.A/12 and A/13 the plaintiff was shown to be in possession of plot no.E-34 in question running his textile bleaching industry is also of no consequence because in the eye of law he stood dispossessed from the said land as soon as he surrendered the said land in favour of Land Acquisition Officer in the year 1976 for the benefit of RIICO for whom the said land in question was acquired. The conflicting stand taken by the plaintiff before the courts below that though he was allotted plots no. G-105 and 106 yet he should not be dispossessed from the plot no. E-34 shows malafide conduct and claim of plaintiff over the plot no.E-34. The submission of learned counsel for the plaintiff appellant that when plaintiff was allotted plot no.G-105 and 106, he under a mistaken belief, believed it to be an allotment in his favour of plot no.E-34 and, therefore, he continued to be in possession of said plot of land cuts his own arguments. Such a mistaken belief or confusion of the plaintiff is neither here nor there. Since plaintiff failed to establish any basis for his claim over the same land, which was surrendered by him, his alleged possession over plot no.E-34 was only a make believe and was rightly rejected by the courts below. Civil Second Appeal No.6/2006 Mohd.Yusuf vs. RIICO & Ors. Judgment dt.3/9/2008 12/12 14. For the aforesaid reasons, the application under Order 41 Rule 27 CPC filed by the plaintiff on 27/8/2008 is also rejected. The plaintiff sought to place one lease deed dated 25/4/1980 for plot no.GA-104 to 106 ( & not G-105, 106) executed in favour of one Mangilal s/o Devi Chand ji, on record as additional evidence, which is not relevant to the case in hand at all. 15. Thus, in the considered opinion of this Court, the findings of facts arrived at by the courts below in rejecting the suit for injunction filed by plaintiff-appellant do not give rise to any substantial question of law for determination by this Court. Therefore, this is appeal is found to be devoid of merit and the same is accordingly dismissed. No order as to costs. (DR.VINEET KOTHARI), J. item no.s-4 baweja/-