IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 1. CIVIL SECOND APPEAL No. 434 of 2005 DILIP & ORS V/S U.I.T UDAIPUR 2. CIVIL SECOND APPEAL No. 433 of 2005 CHANDRA PRAKASH V/S U.I.T. UDAIPUR 3. CIVIL SECOND APPEAL No. 435 of 2005 SMT. PREM V/S U.I.T. UDAIPUR 4. CIVIL SECOND APPEAL No. 411 of 2005 RAGHUNATH SINGH V/S U.I.T. UDAIPUR 5. CIVIL SECOND APPEAL No. 410 of 2005 BHERA V/S U.I.T.,UDAIPUR Mr. TARUN JOSHI for Mr. JP JOSHI, for the appellant / petitioner. Mr. DEELIP KAWADIA & Mr. RS MANKAD, for the respondent Date of Order : 1.8.2007 HON'BLE SHRI N P GUPTA,J. JUDGMENT -------- These five appeals arise in identical factual circumstances, and involve identical questions, and are therefore, being decided by this common order. The appellants are plaintiffs. In Appeal No. 434, 433 and 435 vide order dt. 28.11.2005 record was ordered to be requisitioned, and in the meantime status quo was ordered to be maintained, which is continuing, while in the remaining two appeals, there is no interim stay order, nor the record has been called. Then, in Appeal No. 433, the sole appellant Chandra Prakash expired on 2.7.2007, and application was filed for substitution of his legal representatives on 25.7.2007, which was not opposed by the other side, as such the same was allowed on the same day, and the amended cause title has also been taken on record. Since in all the five cases separate suits were filed, though on the same date, and they were dismissed by separate judgments of the same date, and appeals have also been dismissed by separate orders of the same day by the learned lower Appellate Court, and since the factual aspect is common, for the sake of convenience, I take up the facts from the file of Second Appeal No. 434/2005. The facts of the case are, that according to the plaintiffs, they claim to be in possession of their respective plots in question, described in para-1 of the plaint, in village Savina Khera, which plot is said to have 2 been obtained by them vide different Pattas, all being dated 19.6.1991, and since then they are continuing in possession, and are enjoying the plot. In some cases according to the plaintiffs the boundary wall is there on the plot, while in some cases according to the plaintiff there exists one room without any connection of amenities like electricity, or water. It is then alleged, that the defendant Urban Improvement Trust has no right, title or interest in the plot, while Tehsildar is threatening to dispossess, and on 12.5.2000, without giving any notice the Tehsildar came with the labourers, and dismantled a part of the boundary wall, and threatened to dispossess within a couple of days. Interalia on these facts an injunction is prayed, that the defendant be bound down not to dispossess the plaintiffs from the plot in question. The defendant contested the suit by filing written statement, contending interalia, that there does not exist any such plot, as claimed by the plaintiff, nor any plot number has been given. Then, it was pleaded that the Gram Panchayat Titardi has never given any Patta to the plaintiff on the date as alleged, and in the file alleged, and that the plaintiff is not in possession either, nor can he raise construction. It was then pleaded, that as a matter of fact, in the garb of illegal possession the plaintiff is trying to grab the land of Khasra no. 359, which land is of the ownership and possession of U.I.T., 3 which is recorded in the revenue record in the name of U.I.T., and the plaintiff, or even Gram Panchayat Titardi, has nothing to do with the land in question, i.e. they have nothing to do with the land, nor could have any connection with, or title over the land. The plaintiff wants to grab the land in the garb of illegal documents, and the Trust is entitled to legitimately protect the land, wherein no obstruction can be claimed by the plaintiff. It is alleged that since the plaintiff is not in possession, therefore, there is no question of giving any threatening, or the like. In additional pleas it was pleaded, that the plaintiff claims on the basis of Patta, while as on the date of grant of Patta, or before, or after, the land never belonged to Gram Panchayat Titardi, and therefore, the Gram Panchayat had no right to issue any Patta, and thus the alleged Patta is of no value better than a piece of paper on which it is scribed, and that Patta has been prepared falsely, and on basis of fabricated documents. It was then pleaded, that the Gram Panchayat never granted Patta, and even if it is assumed that Patta was granted, still this Patta could not relate to the land in question, identity of land is not clear, and the Gram Panchayat had never delivered possession of land in question, and the Gram Panchayat is a necessary party. Various other objections were raised, including that since the land belongs to Trust, by virtue of provisions of Section 92A of the Urban Improvement Act, any encroachment thereon is prohibited, 4 and by virtue of Section 72 and 73 no construction can be raised without permission of the Trust. Then, it was pleaded that since there is no construction on the site, the plaintiff after filing of the suit, or soon thereafter, did not get any commissioner issued, rather in violation of the orders of the status quo, granted by the Court, the plaintiff has altered the situation, inasmuch as till 6.30 P.M. of 22.5.2000 there was no construction, and subsequently he raised boundary wall of 2 ft., height, and one Kothri was constructed with Tin Shed. Interalia with these pleadings it was prayed, that the suit be dismissed. Learned trial court framed seven issues. Issue no. 1 being, as to whether the plaintiff is in lawful possession of the land in question, second issue was, as to whether the plaintiff was entitled to injunction as prayed against the defendant, the third issue was, as to whether Gram Panchayat Titardi was a necessary party, then fourth issue related to jurisdiction of the Court, then fifth issue was, as to whether without filing a suit for declaration suit for injunction is maintainable, then sixth issue was, as to whether suit could be filed without giving notice under Section 98 of the U.I.T., and the seventh issue related to relief. The parties led oral and documentary evidence, which included the then Sarpanch Bhagwant Singh. In documentary evidence the revenue record of Khasra No. 359 was produced, then a superimposed plan of 5 Khasra No. 359 was produced, then certain photographs of the site were also produced, but then these were not proved. The plaintiff also produced photo stat copy of the Patta dt. 19.6.1991, which shows to have been issued on 19.6.1991, under Rule 266 of the Panchayat and Nyay Panchayat General Rules, 1961, reciting, that on filing of the application for grant of Patta of the land in question, a free of cost Patta was granted, pursuant to resolution dt. 19.6.1991. The learned trial court decided issues no. 1 and 2 together. After discussing the evidence of the parties, it was found, that the stand of the defendant, which is supported by the revenue record Ex. A-1, showing the land of Khasra No. 359 being recorded in the name of Trust, could not be controverted, and after considering the site inspection report Ex. A-2, and considering the statement of the plaintiff, it was found, that certain constructions were raised in order to gain possession of the land. Then, it was also found, that no material has been placed on record to show, that regarding the plaintiffs' old possession, except bald statement of the plaintiff himself, there is no other material, while land is shown to be belonging to Trust, and therefore, the plaintiff cannot be described anything better than the trespasser, and he is not entitled to injunction. Then, deciding other issues together, it was found, that the defendant did not press 6 those issues. And since the issues no. 1 and 2 have been decided against the plaintiff, the suit was dismissed. In appeal an application was filed under O. 41 Rule 27 C.P.C. by the respondent, which was dismissed by the learned lower Appellate Court vide order dt. 21.9.2005, and another application filed by the appellant for producing certain documents, was also dismissed by a separate order of the same date of 21.9.2005. Learned lower Appellate Court noticed, that the controversy raised before it was confined to issues no. 1 and 2. It was found by the learned lower Appellate Court, that Bhagwant Singh, Sarpanch, had clearly admitted in cross-examination, that the land for which the Pattas were granted is comprised in Khasra no. 359, of village Savina Khera, and has also admitted, that this land is entered in the name of U.I.T. in Ex.A-1. Thus, the Patta becomes a forged document, and on that basis plaintiff does not get any title. Then, it was considered, that Bhagwant Singh has also deposed, that the land was wrongly recorded in the name of U.I.T., as the land was of Gram Panchayat Titardi, but then, this part of evidence was disbelieved, as no documentary evidence was produced by the Sarpanch, to show, that the land was ever in the Khatedari of Gram Panchayat. This fact could very well have been proved by producing Jamabandi. Thus it was found, that the land was never in 7 the Khatedari of Gram Panchayat Titardi, and it is established to be of U.I.T. Then, the learned lower Appellate Court has also relied upon a portion of the cross-examination of the Sarpanch, wherein he had admitted, that the land was earlier Bila Naam Sarkar which was recorded in the name of U.I.T. under orders of Collector. Then, evidence of this witness has been considered that the Collector's order was wrong, but that part was disbelieved, as admittedly no appeal has been filed against the order of the Collector, nor was it otherwise challenged anywhere, which indicates, that it was rightly recorded in the name of U.I.T. Then, discussing the other evidence of the plaintiff, it was found, that though in the witness box old possession has been deposed, but then, in the plaint it is not the pleading, rather it is categorically pleaded, that the plaintiff is in possession since the date of grant of Patta, thus there is variance between evidence and the pleadings, and it cannot be believed, that the plaintiff is in possession since long before filing of the suit. In this view of the matter, the learned lower Appellate Court affirmed the finding of the learned trial court, about the land being not of the plaintiff, and since the Patta is forged, dismissed the appeal. Assailing the impugned judgment, it was contended by the learned counsel for the appellant, that the Patta cannot be described to be forged, as forged document is 8 defined in Section 464 Cr.P.C., and patta is not shown to be fulfilling any of the ingredients thereof, and simply because the learned lower Appellate Court was of the view, that the title of the land do not vest in the Gram Panchayat, or that the Gram Panchayat did not have any right to grant Patta, it cannot be said, that Patta is forged. Then, arguing on merits, it was contended, that findings about Khasra no. 359 being not belonging to Gram Panchayat, and about the order of the Collector being not wrong, are bad, inasmuch as, with respect to all government lands lying within the Panchayat, the Panchayat could grant Patta, and the Collector could not subsequently order such land to be recorded in the name of U.I.T. I have considered the submissions. True it is, that in strict sense of the term, Patta cannot be described as ‘forged’ as the pattas purport to be issued by Gram Panchayat, and it is not established that Pattas are not issued by the Gram Panchayat, then they purport to be issued on particular date, and purports to be issued with signatures of Sarpanch, which fact has been proved by Sarpanch, and these facts have not been controverted, but then, that is not the end of the matter, inasmuch as it appears, that the expression “forged' has been loosely used by the learned lower Appellate Court, as from close reading of the judgment, it transpires, that by this expression, the learned lower Appellate Court only intended to mean 9 that Patta was issued by the Gram Panchayat without any authority of law, and it does not have any efficacy, and confer any title on the plaintiff, and thus there is no efficacy. So far as the land of Khasra no. 359 being Bila Naam Sarkar, and lying within Panchayat area, and therefore, entitling Sarpanch to grant Patta is concerned, in my view, no material has been placed on record to show, that when the pattas were granted, the land was recorded as Bila Naam Sarkar. Then, even for sake of arguments, even if it were to be assumed, that the land was recorded as Bila Naam Sarkar, that by itself does not vest any authority on the Gram Panchayat to issue Patta, as Abadi land, in respect of land recorded as Bila Naam Sarkar, lying within the particular area of Gram Panchayat. In this regard I may refer to Clause (vi) of Sub-section (1) of Section 88 of the Rajasthan Panchayat Act, 1953, which provides for vesting of all Government lands, lying within the abadi area of the Panchayat Circle, in the Panchayat, and this section does not provide for all government lands lying within the Panchayat Circle to be vesting in Panchayat. It is not the case of the plaintiff, nor is it the statement of Sarpanch, that Khasra no. 359 was lying in the Abadi area of Panchayat. In that view of the matter, the land of Khasra no. 359 being Bila Naam Sarkar, lying within Panchayat area, does not entitle Sarpanch to grant Patta. 10 It is again a different story that as appears from the papers on record, that the land was recorded in the name of U.I.T., way back in the year 1989, while the application for grant of Patta has been made somewhere in 1990, and Patta has been issued in 1991, thus as on the relevant date, it cannot be said, that the land of Khasra no. 359 was at all recorded as Bila Naam Sarkar, and the land could possibly not be said to remain vested in the Gram Panchayat, enabling it to grant Patta. This is one aspect of the matter. The other aspect of the matter, though not gone into by the learned courts below, is no less important, as it steers clear on the face of it, being that, Pattas, even according to the plaintiffs, are issued under Rule 266, and a look at Rule 266 shows, that thereunder the transfer of Abadi land of Panchayat may be effected by way of sale by private negotiations, in the cases specified in clauses (a) to (d) of sub-rule (1) thereof; the first clause contemplates the situation, where any person has a plausible claim of title to the land, and an auction may not fetch reasonable price, the second being, where for reasons to be recorded in writing, the Panchayat thinks, that an auction would not be a convenient mode of disposal of the land; third being, where such course is regarded by the Panchayat necessary for the advancement of Scheduled castes and Scheduled 11 tribes or other backward classes, and fourth clause provides, where the persons are in possession of the abadi land for 20 years or more but less than 42 years, one-third of the prevailing market price, and in case of possession of over 40 years, one sixth of the prevailing market price shall be charged. In that view of the matter, the gravamen of the provision is, that the person should have some plausible claim of title. A look at the Patta produced by the plaintiff shows, that application was filed claiming the land to be in old possession, and prayed for grant of Patta, while a look at the pleadings contained in the plaint itself shows, that the plaintiff claims to have come into possession under the Patta. This by itself clearly negates, any of the circumstances contemplated by Rule 266. Therefore also, the Patta clearly appears to be a stage managed affair, and does not entitle the plaintiff to maintain the suit for injunction. Thus, taken from any stand point I do not find any error in the findings recorded by the learned courts below, so as to require any interference in these appeals. The appeals thus do not involve any substantial question of law. The same are, therefore, dismissed summarily. ( N P GUPTA ),J. /Sushil/ 12