CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil Second Appeal No.194/1990 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal and another Date Of Judgment :: 29.6.09 P R E S E N T Hon'ble Mr. Justice Jitendra Ray Goyal Mr. Alok Goyal with Mr. Abhishek Jain, on behalf of Mr. G.C. Garg, for appellants. Mr. M.C. Jain on behalf of Mr. Jainendra Jain, for respondents. ........ By the Court :- This is defendants' second appeal under section 100 of the Code of Civil Procedure against the judgment and decree dated 19/7/1990 passed by Additional District Judge, Deeg in Civil Regular Appeal No.1/1986 by which he CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (2) confirmed the judgment and decree dated 28/4/1986 passed by Munsif, Kama in Civil Suit No.182/1980. 2. Brief facts giving rise to this appeal are that plaintiffs had filed a suit seeking possession of the disputed land and also for permanent injunction alleging therein that disputed land was in the ownership and possession of their uncle Shri Parmee who also obtained permission from Municipal Council, Kama on 14/7/1959 for construction of the boundary wall but Paramveer died without constructing the said boundary wall, therefore, the plaintiffs being the sole heirs of their deceased uncle Paramveer, remained in actual physical possession over the disputed piece of land as owners. It was further the case of the plaintiffs that on or about 10/2/1980 CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (3) Junior Engineer of the RSEB in connivance of the Assistant Engineer and the Board dispossessed the plaintiffs. Therefore, prayer has been made for the decree of possession and permanent injunction along with mesne profits. 3. The defendants in their written statements denied the plaintiffs' ownership over the disputed land and specifically pleaded that plaintiffs were never in possession, therefore question of encroaching the plaintiffs' land does not arise. It was further the case of the defendants that RSEB is in possession over the disputed land since 1958-60 when the electrification took place in Kama and since then the land is being used by the RSEB and it has a board office on the land in question. 4. On the basis of the pleadings, CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (4) following issues were framed :- “1.आया गैत मुतदाǒवया ǔजसका ǒववरण वाद पऽ के पैरा न. एक में है ǔजसे नÈशे में रंग सुख[ से ूद[िशत Ǒकया है िमलǑकयत व मकबूिलयत वाǑदगण है ् | 2. ूितवाǑदगण ने ǒववादमःत गैह पर Ǒद. 10.2.80 या इसके करȣब नाजायज कÞजा कर रखा है और वाǑदगण उƠ गैत पर कÞजा पाने के अिधकारȣ है | 3.आया दावा वादȣगण अÛदर िमयाद नहȣं है 4.दादारसी ?” 5. Plaintiffs examined PW1 Jagan Lal, PW2 Ramji Lal, PW3 Mool Chand, PW4 Ram Chand, PW5 Chagani and produced site plan dated 2/12/1980, receipt dated 12/9/1980, copy of the notice dated 12/9/1980, copy of permission dated 14/7/1959 and 17/11/1961. The defendants in support of their pleadings examined DW1 Ghanshyam Dutt Gupta, DW2 Mal Singh, DW3 Suresh Chand and produced map of the boundary dated 22/8/1975. CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (5) 6. The trial court after considering the evidence and hearing the parties decreed the suit for possession, mesne profits and permanent injunction against the defendants and in turn the appeal preferred by the defendants was also dismissed by the first appellate court. Hence, this second appeal. 7. This Court admitted the appeal for hearing on 26/11/1990 and framed following substantial questions of law :- “1.Whether in the facts and circumstances of the case, EX.A-1, allotment letter and the map creates any right in favour of the appellant ? 2. Whether Ex.A-1 is inadmissible in evidence ? 3. Whether the Lower Court was justified in rejecting the amendment application vide order dated, 2.11.85 ? 4. Whether the Court has committed an error of law in drawing wrong inferences from the admitted facts ? CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (6) 5. Whether the Munsiff Court had no jurisdiction to entertain the suit and, if so, what will be the effect on the decree passed ?” 8. I have heard learned counsel for the parties and have gone through the pleadings and evidence of the parties. 9. The first question for consideration is whether Ex.A-1 document creates any right in favour of the appellant ? 10. From the perusal of Ex.A-1, it is very much clear that said document is not an allotment letter, rather it is a copy of one map and this map marked as Ex.A-1 does not confer any title upon the appellant-defendants with regard to the land in question. It is also quite significant to say that there is not even reference of any such allotment letter in the written statement submitted by the CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (7) defendants, thus in my considered view Ex.A-1 document does not create any right in favour of the appellant-defendants. Thus this question is decided against the appellants. 11. The second question relates to admissibility of document Ex.A-1. 12. Learned counsel for the respondents argued that Ex.A-1 is neither original nor certified copy and thus unattested copy of the map is inadmissible in evidence. 13. Learned counsel for the appellants submitted that trial court rightly marked Annexure upon the defendants' document Ex.A-1. 14. I have considered the rival submissions and am of the considered view that Ex.A-1 being unattested copy of the CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (8) map, which is said to have been issued by the Executive Engineer, Municipal Board, Kama, is not admissible in evidence. Thus, this question is also decided against the appellants. 15. The third question has been framed to consider whether order of the trial court dated 2/11/1985 rejecting the amendment application of the defendants was justified ? 16. To appreciate this question, it would be relevant to mention that vide para no.7 of the plaint, the suit valuation has been determined as Rs.300/- and court fee of Rs.30/- for the relief of possession and permanent injunction was paid. Vide written statement the contents of para no.7 of the plaint have been denied in general with no specific plea regarding valuation of the subject CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (9) matter of the suit. 17. On 26/11/1984 plaintiff Jagan Lal was examined and in cross-examination he stated “इस जमीन की कीमत बीसीयों हजार रुपयें होगी |”. Thereafter an application for amendment in the written statement was moved on 2/11/1985 with a prayer that para no.8 may be allowed to be added in the written statement to the effect that land in dispute is worth of Rs.20,000/-, hence, the court has no jurisdiction to grant relief for possession of the land in dispute. Learned trial court on the same day dismissed this application with the observation that it causes prejudice to the plaintiffs and that the statement of the plaintiff was recorded one year ago and it does not appear from the statement that valuation of the land was Rs.20,000/-. CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (10) 18. Objection with regard to valuation was taken in para no.7 of the memo of first appeal but the appellate court did not consider this objection at all. 19. Learned counsel for the appellants argued that amendment was necessary for the proper decision of the case which was wrongly denied by the trial court. He also referred section 29 of the Rajasthan Court Fees & Suit Valuation Act,1961 (in short the Act of 1961) and placed reliance upon the following judgments :- Mohkam Chand Dasot & Anr. Vs. Addl. Distt. & Sessions Judge No.3, Jaipur City, Jaipur, reported in 2006(2) W.L.C. (Raj.) page 431, Kanakraj Vs. Gopikishan, reported in W.L.N. (U.C.) 1978 page 22 and Shyam Lal Vs. Sohan Lal, reported in CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (11) W.L.N. 1978 page 530. 20. Learned counsel for the respondents has contended that the application for amendment was rightly rejected as there was no such plea in the written statement. 21. I have considered the rival submissions. Order 6 Rule 17 of the Code of Civil Procedure provides that all the amendments which are necessary to determine the disputes between the parties must be allowed and it reads as under :- 17.Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendment shall be made as may be necessary for the purpose of determining the real questions in controversy between CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (12) the parties : Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. 22. In Mohkam Chand Dasot & Anr's case (supra), it has been held by this Court that question of the court fee should be decided first and trial court was directed accordingly. In Kanakraj's case (supra), it has been held by this Court that in a suit for possession and injunction of the land court fee on the market value of the land is payable. Similar decision has been given by this Court in Shyam Lal's case (supra) that in a suit for possession court fee has to be paid under section 29 of the Act of 1961. CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (13) 23. Section 29 of the Act of 1961 provides that in a suit for possession of immovable property not otherwise provided for, fee shall be computed on the market value of the property. 24. According to the spirit of provisions of section 29 of the Act of 1961, it was the duty of the plaintiffs to plead the market value of the land and to pay the court fee on the same but the plaintiffs failed to plead the market value of the land and one of the plaintiff Jagan Lal himself admitted the value of this land may be Rs.20,000/- in his statement. In view of this background, the application for amendment was illegally rejected. Thus the question no.3 is decided against the respondents. 25. The fourth question for consideration is whether the court has CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (14) committed an error of law in drawing wrong inferences from the admitted facts ? 26. Before coming to the rival submissions, it would be appropriate to narrate the relevant facts in brief. 27. It is the case of the plaintiffs that disputed land was/is in the ownership and possession of the plaintiffs and on 17/11/1961 the plaintiff Jagan and their uncle Sh. Parmee submitted one map in Municipal Board, Kama for permission to raise boundary wall and Municipal Board, Kama granted permission on 14/7/1959, though they were in possession as owners since then prior to that. It is the further case of the plaintiffs that defendant have encroached upon this land on or about 10/2/1980 and prior to that CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (15) defendants have no concern over this land. Vide written statements the averments of the plaint with regard to ownership and possession of the plaintiffs, have been denied with a plea that defendant are in possession of the said land as owners since electrification took place in Kama and they have got established their office upon this land, thus they are in possession of the same. 28. On the basis of the pleadings, the trial court framed issue no.1 to the effect that as to whether the plaintiffs are in possession as owners of this land and issue no.2 to this effect that defendants have encroached upon this land on 10/2/1980. 29. The trial court on the basis of the oral testimony of the plaintiff Jagan Lal (PW1), Ramji Lal (PW2), Mool CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (16) Chand (PW3), Ram Chand (PW4) and Chagani (PW5) has held that plaintiffs are the owners of this disputed land and were in possession of the same and it was further held that defendants have not produced any document of title of this land and also failed to prove their possession. 30. The first appellate court has held that there is no ground to interfere with the findings of the trial court on issues No.1 and 2. 31. Learned counsel for the appellants has argued that findings of both the courts below are perverse as wrong inferences have been drawn from the facts. It has been further argued that case of the appellant-defendants was rejected on the ground that they have not produced any document of title of land but plaintiffs also did not file any CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (17) document of title as Ex.1 to Ex.3 are not the title deeds upon which both the courts below have wrongly placed reliance. He has also referred some contradictions in the statements of plaintiffs' witnesses. 32. On the other hand, learned counsel for the respondents argued that there is no reason to interfere with the concurrent findings of both the courts below. 33. I have considered the pleadings, evidence, judgments of both the courts below and rival submissions and am of the considered view that findings of both the courts below are perverse and based upon misreading of both documentary as well as oral evidence. 34. According to the plaintiff, CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (18) their uncle Sh. Parmee Ram submitted one map for permission to Municipal Board to raise boundary wall on 17/11/1961 and the permission was granted on 14/7/1959 i.e. one year prior to seeking permission. Plaintiff Jagan has stated that Ex.1 & 2 are the documents of title and Ex.3 is the site plan of this land. Ex.3 is a site plan prepared by one Manohar Lal who has not been examined. Ex.1 appears to be a map in the name of Parmi Ram and Ex.2 is also in the name of Parmi Ram and one of the plaintiff Jagan Ram issued by the Municipal Board, Kama but in my considered view Ex.1 & 2 are not documents of title, therefore they cannot be taken as title deeds of this land in any way, thus both the courts below have wrongly treated these documents as title documents. Here it is significant to CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (19) note that in cross-examination, the plaintiff Jagan Lal has admitted that they have produced no title deed except permission. It has also been admitted by the plaintiff Jagan Lal that office of the respondents in Kama is for more than 20 years. He further admitted that they did not file any complaint against the defendants when they encroached upon the said land. According to PW2 Ramji Lal there are two plots; one of Parmee Ram and other of Parmee Ram and Jagan Ram but he has not identified the plot which has been encroached by the defendants. According to PW3 Mool Chand, Parmee and his real brother Fauzi were owners of the disputed land while as per plaintiff Jagan Lal he and his uncle Parmee were owners of this land. PW4 Ram Chand has stated that there were two plots, one of CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (20) Jagan Ram and Parmee and other of Parmee Ram alone but he also failed to identify the plot upon which the defendants have committed trespass. In cross-examination, he has stated a new fact that this land belongs to one Natha Ram grandfather of plaintiff Jagan and Parmee but even the plaintiffs have not come with this case that Natha Ram was the owner of this land and they inherited this land from him. PW5 Chagani has stated that disputed plot was in the ownership of Parmee and plaintiff Jagan and now the defendants are in possession for last 4-5 years. 35. Thus, neither there is any documentary evidence which shows the title of the plaintiffs nor oral evidence to prove the title and merely on the basis of such bald statements the inferences of title should not have been CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (21) drawn by the two courts below in any manner. 36. So far the evidence of defendants is concerned, DW1 Ghanshyam Dutt Gupta, AEN and DW2 Mal Singh have stated that this land is in their possession since 18-20 years and it was sold to defendants by Municipal Board, Kama. DW3 Suresh Chand, LDC since 1977 in Municipal Board, Kama, has stated that Ex.1 was issued by the Municipal Board, Kama in the year 1975 and Municipal Board, Kama raised the demand of Rs.3,35,275/- as price of this land from the defendants. As already held that Ex.A-1 is not allotment letter and there is no mention of the price of land and it is a simply a copy of map which has been found inadmissible in evidence, thus the defendants also failed to produce any CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (22) title deed but burden of both the issues was upon the plaintiffs and they completely failed to prove their title over this land. 37. So far issue no.2 is concerned, the plaintiffs were required to prove that the defendants encroached upon this land on or about 10/2/1980 but the trial court has not given any finding on this issue, rather it has been observed that though according to the plaintiffs, defendants are in possession since 1980 but it is not definite since when they are in possession and the findings on this issue have been upheld by the first appellate court also and this also shows that both the courts below have drawn wrong inferences from facts/documentary as well as oral evidence on record. Thus, this question CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (23) is decided against the respondent- plaintiffs. 38. The fifth question is in regard to the jurisdiction of the Munsif Court to entertain the suit. 39. As has been discussed while deciding question no.3 that the suit has been filed for the value of Rs.300/- and defendants filed their written statement on this point by general denial but after the statement of plaintiff Jagan Lal defendants filed an application for amendment in their written statement taking the plea that value of suit property is Rs.20,000/-, therefore suit is not within the jurisdiction of the Munsif Court, but the said application was dismissed by the trial court and while deciding question no.3, this Court found that said amendment application was CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (24) wrongly dismissed and amendment ought to have been accepted but at this juncture objection of jurisdiction shall not materially affect, firstly because now Civil Judge (Junior Division) (Munsif) has got pecuniary jurisdiction upto the valuation of Rs.20,000/- and secondly in this matter which is pending since last about three decades, it has been found by this Court that plaintiffs have utterly failed to prove their case on merits, therefore it would not be appropriate to remand the case for the fresh adjudication on the point of pecuniary jurisdiction in the light of amendment sought in the written statement. 40. The result of the above discussion is that plaintiffs have miserably failed to prove their title and possession over the disputed land as CSA 194/90 Jaipur Vidhyut Vitran Nigam Ltd. & Ors. Vs. Jagan Lal & Anr. (25) owner. 41. Consequently, the appeal is accepted and the judgment and decree of both the courts below are set aside. The suit of the plaintiffs is dismissed. The decree be prepared accordingly. (J.R. Goyal),J. VS Shekhawat/- Jr. P.A.