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.256/2008. (Nagar Palika, Fatehsagar Sanwad Vs. Chandmal) DATE OF JUDGMENT : August 10, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. Kailash Joshi for the appellant. Mr. R.C. Gaur for the respondent. BY THE COURT : In this second appeal filed under Section 100, C.P.C., the appellant Nagar Palika Fatehsagar Sanwad (District Udaipur) is challenging the judgment and decree dated 22.05.2006 passed by the Addl. District Judge No.3, Udaipur in Civil Appeal No.31/2003, whereby, the learned first appellate Court confirmed the judgment and decree passed by the trial Court dated 16.12.2002 in Civil Case No.50/97. According to brief facts of the appeal, respondent- plaintiff filed suit for permanent injunction stating 2 therein that plaintiff is in possession of the plot No.90-A and 91-A, situated in municipal limits of Fatehsagar Sanwad where the plaintiff has already constructed a boundary wall and plot No.90-A was purchased from the Gram Panchayat Sanwad on 28.07.1969 and since then he is in possession of the said plot but the Executive Officer of the Municipal Board is trying to dispossess him from the said plot. A reply was filed by the appellant-defendant in the suit, in which, stand was taken that neither respondent- plaintiff nor his brother Banshi Lal is in possession of the said plot and the said plot is property of the Municipal Board, Fatehsagar Sanwad and it is also stated in the written-statement that plot No.90-A was allotted to the plaintiff on 28.07.1969 but the said allotment was made in contravention of Rajasthan Panchayat General Rules, therefore, District Collector, Udaipur cancelled the said allotment on 17.03.1972 in revision petition No.44/70. Therefore, the assertion with regard to possession over the land is totally baseless and the same is denied. Learned trial Court, after framing three issues, proceeded to record evidence and from the plaintiff's side, statements of 4 witnesses viz., plaintiff Chandmal, 3 Jagdish, Puranmal and Satya Narayan Chechani were recorded and patta issued by the Gram Panchayat was placed on record as Ex.-1 and map Ex.-2 was produced along with deposit of amounts. In all, 15 documents were exhibited at the trial. Before the trial Court, number of opportunities were given to the defendant- appellant to lead its evidence but no evidence was produced by the appellant-defendant. So also, no documentary evidence was placed on record to discredit the statements and evidence produced by the plaintiff before the trial Court. Therefore, the trial Court decreed the suit while deciding all the issues against the defendant. The trial Court rendered the judgment on 16.12.2002, in which, it is specifically observed that inspite of granting opportunities to lead evidence, no witness was produced by the defendant-appellant. Against the said judgment, appeal was preferred before the District Judge, Udaipur which, later on, was transferred to the Addl. District Judge No.3, Udaipur for adjudication. Learned first appellate Court while discussing the entire evidence gave finding that learned trial Court has rightly appreciated the evidence and rightly decreed the suit in favour of the respondent- plaintiff. In this second appeal, the Nagar Palika is 4 challenging the validity of the concurrent finding of both the Courts below. It is argued by learned counsel for the appellant- defendant that the judgments of both the Courts below are totally contrary to the material on record. It is contended that specific averment was made that patta was issued in favour of the plaintiff by the Gram Panchayat, Sanwad but, later on, the said patta was cancelled by the District Collector, Udaipur, however, learned trial Court failed to consider the assertion made by the appellant, therefore, the finding of the trial Court as well as lower appellate Court is perverse and illegal and contrary to the basis principles of law. It is further contended by learned counsel for the appellant that the plaintiff-respondent was having the knowledge of cancellation of the patta but this fact was brought to the notice of the trial Court by the appellant, therefore, the trial Court was under obligation to take into consideration this important aspect of the matter. However, both trial Court as well as learned lower appellate Court failed to consider properly the averments made by the appellant-defendant in its written-statement. It is also brought to the notice of this Court that in 5 this second appeal an application under Order 41 Rule 27, read with Section 151, C.P.C. has been filed for taking three documents on record viz., Annex.-A, order dated 17.03.1972, Annex.-B, letter/notice dated 18.04.1972 and Annex.-C, notification; and, it is prayed that these documents may be taken on record as evidence and may be considered for adjudication of the case. I have perused the entire proceedings and, so also, considered the arguments advanced before the Court. Admittedly, no evidence was produced before the trial Court to prove the defence by the appellant- defendant that the plaintiff was not in possession of the land. Although in the reply assertion was made that patta issued in favour of the plaintiff-respondent was cancelled on 17.03.1972 but no documentary evidence was produced before the trial Court, therefore, the trial Court while considering the evidence of as many as 15 documents held that land in question was purchased by respondent-plaintiff from the Gram Panchayat, Sanwad and he is in possession of the disputed land. While giving the said finding that the plaintiff has proved his case, learned trial Court decreed the suit. Upon failure 6 of the defence to prove its case, in my opinion, the finding arrived at by the learned trial Court cannot be termed perverse because the document which is filed along with application in this second appeal moved under Order 41 Rule 27, C.P.C. does not disclose whether the plaintiff-respondent was impleaded as party in the said proceedings. More so, said information is said to have been filed by the Panchayat Assistant, Sanwad and, in the order Annex.-A filed with the application before this Court clearly speaks that nobody on behalf of the Gram Panchayat, Sanwad was present nor record was called from the Sarpanch, Gram Panchayat, Sanwad to prosecute the revision. In my opinion, such type of order which is passed in the back of the affected party cannot be used as weapon against him. More so, the respondent-plaintiff produced 15 documents before the trial Court which were exhibited and no evidence or document was produced in the suit by the appellant, therefore, in the absence of any defence evidence, the trial Court gave categorical finding that the plaintiff has proved his possession upon the plot in question, therefore, even if the documents produced before this Court along with application filed under Order 41 Rule 27, C.P.C. are taken into 7 consideration, no perversity or illegality is found in the judgments passed by both the Courts below. Therefore, I see no reason to interfere in the concurrent finding of both the Courts below because finding is based upon documents and oral evidence. This second appeal is accordingly dismissed. (Gopal Krishan Vyas) J. Ojha, a.