1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : S.B. Civil Second Appeal No.140/1993. (Dana Ram Vs. State of Rajasthan) DATE OF JUDGMENT : July 09, 2009 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS ______________________________________ Mr. S.G. Ojha for the appellant. Instant second appeal is directed against the judgment and decree dated 03.06.1993 passed by the first appellate Court of Addl. District Judge, Nohar in Civil Appeal No.27/90, whereby, the appellate Court reversed the judgment and decree dated 01.09.1990 passed by the Civil Judge, Nohar in Civil Original Case No.58/86. While admitting this appeal, following substantial questions of law were formulated by this Court : “(1) Whether lower appellate Court was right in law in holding that appeal filed by State of Rajasthan, when it was not a party in the suit, was competent ? (2) Whether appeal filed by State of Rajasthan before Lower Appellate Court was not maintainable because original defendants were not made parties to the appeal ? (3) Whether the Lower Appellate Court was right in law in holding that Mandi Vikash Samiti, which is constituted under the provisions of Rajasthan 2 Colonisation Act and Rules framed thereunder, is department of State of Rajasthan therefore suit could be filed only against State of Rajasthan ? (4) Whether in view of the pleadings in the written statement, the suit of the plaintiff could be held premature ? (5) Whether notice under section 80 CPC was required to be given before a suit can be filed against Municipal Council and Mandi Development Committee ? (6) Whether Lower Appellate Court was justified in holding that suit for injunction was not maintainable ?” According to brief facts of the case, appellant-plaintiff preferred suit against Executive Officer, Municipal Board, Rawatsar and Secretary, Bhakra Mandi Vikas Samiti, Hanumangarh Junction and prayed for decree of permanent injunction. The trial Court passed decree against the respondents vide judgment dated 01.09.1990, against which, appeal was preferred in the name of State Government and said appeal was presented before the lower appellate Court by the Officer in-charge, office of the Secretary, Mandi Vikas Samiti, Hanumangarh Junction; meaning thereby, one of the respondents which is Secretary, Mandi Vikas Samiti, Hanumangarh Junction preferred the appeal before the lower appellate Court. Before the lower appellate Court, it was pleaded in the appeal by the Secretary, Mandi Vikas Samiti, Hanumangarh Junction that disputed plot was earlier 3 agricultural land which was earlier purchased on 02.12.1979 by the plaintiff-appellant Dana Ram through registered sale-deed. Later on, said agricultural land came to fall under urban jurisdiction and, for regularization of the said land for residential purpose, on 13.12.1984, Rs.1,519/- were deposited. Likewise, Rs.5,499/- were deposited in the Land Conversion Department, Hanumangarh Junction on 27.03.1986. The plaintiff- appellant filed suit that Secretary, Bhakra Mandi Vikas Samiti, Hanumangarh Junction and Executive Officer, Municipal Board, Rawatsar are illegally dispossessing him, therefore, decree for permanent injunction may be passed against them and they may be restrained from interfering in his peaceful possession of the said land. The Secretary, Bhakra Mandi Vikas Samiti, Hanumangarh Junction refuted all the allegations and submitted that the land was acquired earlier by the Government from the original owner Begaram and he was allotted other land in lieu of the said land, therefore, possession by way of encroachment by the plaintiff over the land in dispute was illegal. The land in question is situated in the Mandi area and no right to grant regularization of the said land was left with the Municipal Board. Likewise, any proceedings initiated by the plaintiff- 4 appellant is also in contravention of law and the Mandi Vikas Samiti is not bound by those proceedings because the land in question was allotted to the Mandi by the Government after acquisition and original owner of the land Begaram, being agriculturist, was already given land in lieu of the acquisition of land in question. It is pleaded that the Bhakra Mandi Vikas Samiti is a government department, therefore, without impleading the State Government as party, suit was not maintainable, so also, notice was required to be given under Section 80, C.P.C. prior to filing of the suit. But, in the suit, State Government was not impleaded as party. Further, before the appellate Court, while filing the appeal, Secretary, Bhakra Mandi Vikas Samiti submitted that no cause of action arose at the time of filing the suit and suit was only filed under apprehension and, that too, without disclosing how the apprehension arose for dispossession. It was also pleaded before the appellate Court that the suit was filed for permanent injunction whereas if any right was in existence in favour of the plaintiff, then, he was to file suit for declaration. But, all these points were not considered the by the trial Court and the trial Court straight away decreed the suit which is illegal. The lower appellate Court allowed the appeal while 5 accepting the above grounds raised by defendants and set aside the judgment and decree passed by the trial Court. Learned counsel for the appellant vehemently argued that the lower appellate Court has committed error while allowing the appeal filed by the State Government because the State Government was not party before the trial Court. Hence, the appeal filed before the first appellate Court was incompetent. Likewise, it is stated that the finding arrived at by the lower appellate Court is totally perverse and has no foundation to stand before the eye of law. I have considered the arguments advanced by the parties. It is true that six issues were framed at the time of admission of this appeal; but, all these issues are co- related to each other. Admittedly, the land in question was initially belonging to Begaram from whom, as per the appellant, he purchased the land on 02.12.1979. Thereafter, for regularization and conversion of the said land before the Municipal Board and Conversion Department proceedings was taken up and amounts were deposited; but, in the suit, the appellant did not implead the Conversion Department of the State Government as party who has clearly averred in the written-statement that the land in question was acquired for Mandi purpose and 6 allotted to the Mandi Vikas Samiti, therefore, the Municipal Board, Rawatsar has no jurisdiction to regularize the land in question. Similarly, the State Government has not been impleaded as party through the Conversion Department; meaning thereby, the fact of acquiring the land submitted by the Secretary, Bhakra Mandi Vikas Samiti is not refuted in this matter. If it is so, then, the State Government was necessary party; but, suit was filed without impleading the State Government as party. Likewise, a plain reading of the plaint will go to show that it does not disclose any cause of action and, before this Court also, only State Government has been impleaded as party whereas decree was passed against Secretary, Bhakra Mandi Vikas Samiti, hanumangarh Junction, so also, Executive Officer, Municipal Board, Rawatsar. The contention of the appellant in this second appeal is totally baseless that no appeal was filed by the Secretary, Bhakra Mandi Vikas Samiti because before the first appellate Court though in the cause-title name of State Government is mentioned but appeal was filed by the Addl. Collector-cum-Secretary, Mandi Vikas Samiti, Hanumangarh Junction; meaning thereby, the appeal was filed by the Bhakra Mandi Vikas Samiti which cannot be treated other than the State Government. This appeal 7 has been filed on the premises that no appeal was filed before the lower appellate Court by the Mandi Vikas Samiti but this fact is not correct because appeal was filed by the Secretary, Bhakra Mandi Vikas Samiti, Hanumangarh under his signature, therefore, the appeal was competent before the lower appellate Court. The learned lower appellate Court has rightly held that the Bhakra Mandi Vikas Samiti, which is constituted under the Rajasthan Colonization Act and the rules framed thereunder, is a Department of the Government of Rajasthan, therefore, the suit was to be filed against the State Government. Likewise, there was no cause of action emerging from the plain reading of the impugned judgment, therefore, without giving any notice under Section 80, C.P.C. the suit would not lie against the Department of the State Government. As such, the lower appellate Court was fully justified in holding that the suit for permanent injunction was not maintainable. In this view of the matter, there is no force in this second appeal. This second appeal is, therefore, accordingly dismissed. (Gopal Krishan Vyas) J. Ojha, a.