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.24/2009. (Municipal Board, Nohar Vs. Rajkumar & Others) DATE OF JUDGMENT : July 13th, 2009 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS ______________________________________ Reportable Mr. D.S. Rajvi for the appellant. Mr. Kishan Bansal for the respondent(s). In this second appeal filed under Section 100, C.P.C., the Municipal Board, Nohar is challenging the judgment and decree dated 03.05.2008 passed by the Addl. District Judge, Nohar in Civil Appeal Decree No.27/2000, whereby, the appellate Court dismissed the appeal and affirmed the judgment and decree dated 14.09.2000 passed by the Civil Judge (Sr. Dn.), Nohar in Civil Original Suit No.119/97 (56/90), by which, the suit filed by respondent-plaintiff was decreed in his favour. Undisputedly, in the auction proceedings, plot No.11 was allotted to the respondent-plaintiff while accepting his bid of Rs.30,000/- and, out of the bid amount, one-fourth amount was deposited by him immediately; and, thereafter, he was to deposit the remaining three-fourth 2 amount, but, upon physical verification of the plot, the fact came to the knowledge of the respondent-plaintiff that upon the said plot No.11, there is a pucca tar-road, therefore, possession was not possible to be given. A notice was, however, received by him on 13.12.1998 sent by the Secretary, Mandi Vikas Samiti, Hanumangarh, whereby, respondent-plaintiff was directed to deposit rest of the amount. As per the respondent-plaintiff, a reply was filed by him on 27.12.1988 and it was brought to the notice of the Mandi Vikas Samiti that upon the site there is pucca tar- road, therefore, first demarcation of the plot may be given; and, thereafter, he will deposit rest of the amount. But, till 14.05.1990, neither demarcation was given with regard to plot No.11 by the Mandi Vikas Samiti nor amount of one-fourth of the bid money already deposited by him was returned to him. Therefore, notice under Section 80 of the Civil Procedure Code was given by him and, thereafter, suit was filed against the State Government through the District Collector as well as Secretary, Mandi Vikas Samiti, Hanumangarh praying that he is ready to deposit rest of the amount, therefore, vacant possession of the plot may be given. In the suit, the defendant refuted the averments 3 made by the respondent-plaintiff and stated before the Court that due to non-depositing rest of the amount his one-fourth amount has been forefeited and he has been informed vide communication dated 30.01.1990. Therefore, there is no question to allow the plaintiff to deposit rest of the amount nor he is entitled to take possession of the plot No.11 because he has failed to deposit rest of the amount within the stipulated time. It is worthwhile to observe that during the course of trial, the Government issued notification on 23.03.1994 whereby an opportunity was given to all those allottees in disputed matters, in which, rest of the amount was not deposited by the allottees and it was decided by the Government that if interest at the rate of 24 per cent will be deposited along with rest of the amount, then, allotted plot may be given to the allottee. The trial Court after framing as many as six issues, after due trial, decreed the suit in favour of the respondent-plaintiff, whereby, it was held that allotment of the plot in question was not cancelled nor any documentary evidence has been produced on record to show that one-fourth amount deposited by the respondent- plaintiff was forefeited and allotment was cancelled. Learned trial Court gave clear finding that it was not 4 possible for the defendant to hand over possession to the plaintiff; and, further finding is recorded that there is no fault on the part of the respondent-plaintiff in not depositing the amount in time. More so, due to construction of road upon the plot in question, it was not possible for the Mandi Vikas Samiti to give demarcation and possession of the said plot. While giving the above finding, the trial Court decreed the suit in favour of the respondent-plaintiff and it was ordered that defendants shall permit the plaintiff to deposit Rs.22,500/- as rest of the bid amount along with interest at the prevailing rate. So also, the plaintiff shall be entitled for possession of the plot in question as well as cost of the suit. Said judgment was delivered by the trial Court on 14.09.2000, against which, appeal was preferred before the Addl. District Judge, Nohar by the Mandi Vikas Samiti, Hanumangarh and, so also, District Collector, Hanumangarh and Executive Officer, Municipal Board, Nohar. Learned Addl. District Judge, Nohar dismissed the appeal and upheld the finding arrived at by the trial Court as noted hereinabove. Learned counsel for the appellant vehemently argued that in view of the provisions contained in the Rajasthan Colonisation (Sale and Allotment of Land in Mandis in the 5 Bhakra and Indira Gandhi Canal Projects Colony Areas) Conditions, 1973, if the allottee has failed to deposit the entire amount within the stipulated time and his initial amount is forfeited while cancelling the allotment, then, there was no occasion left with the defendants to allow the respondent-plaintiff to deposit rest of the amount and get possession of the plot. Learned counsel for the appellant has invited my attention towards Condition No.20 of the Conditions of 1973, in which, it is provided that Executive Officer is required to give possession of the land to the purchaser only when he has deposited the full bid amount. It is contended that in the present case the plaintiff- respondent failed to deposit full amount within the stipulated time, therefore, possession was not handed over. In support of his contention, learned counsel for the appellant placed reliance upon the judgments reported in 2004 WLC (Raj.) (UC) 122, Smt. Supla Jain Vs. Urban Improvement Trust & Another; and, 2006 WLC 51, Yogesh Kumar Kasliwal Vs. Secretary, Jaipur Development Authority. While citing the above judgments rendered in special appeal, it is submitted by learned counsel for the appellant that the trial Court and first appellate Court have committed error while decreeing the suit in favour of the 6 respondent-plaintiff with the direction that the appellant- defendants shall allow the plaintiff to deposit rest of the amount and the plaintiff shall be entitled for possession of the plot, therefore, the finding arrived at by both the Courts below deserves to be set aside. Learned counsel for the appellant further invited my attention towards judgment of the Hon'ble Supreme Court reported in (1992) 1 SCC 91, Lakshmanasami Gounder Vs. C.I.T. Selvamani & Others and submitted that failure to deposit balance purchase money within the stipulated period has been held to be illegality inviting forfeiture. Learned counsel for the appellant prayed that both the judgments under challenge deserve to be set aside because both the Courts below have committed error while decreeing the suit in favour of the plaintiff. Per contra, learned counsel for the respondent- plaintiff argued that although a plea was taken by the appellants before the trial Court that one-fourth amount earlier deposited by the plaintiff was forfeited and plot was cancelled in the year 1990 and specific date was given with regard to forfeiture of the amount i.e., 31.01.1990; but, no such document was produced on record. Likewise, during the course of trial the Government took decision to restore allotment in the matters in which dispute with 7 regard to non-depositing rest of the amount was involved, however, only embargo was put that the allottee shall deposit rest of the amount with interest at the rate of 24%. Further, it is submitted by learned counsel for the respondent-plaintiff that no documentary evidence has been produced by the appellant-defendants before the trial Court to show that allotment made in favour of the respondent-plaintiff was ever cancelled. More so, the plaintiff proved before the Court that upon the plot No.11 which is in question, there was a constructed road, therefore, it was not possible for the Mandi Vikas Samiti to hand over possession and this fact is not disputed by the appellant-defendants before the trial Court. Likewise, no documentary evidence with regard to forfeiture of the amount was placed before the Court, therefore, the learned trial Court gave finding that in absence of cancellation order or any order with regard to forfeiture, it cannot be said that allotment was ever cancelled. While giving this finding the trial has not committed any error because no documentary evidence has been produced by the defendants before the trial Court. I have considered the submissions made by both the partied and perused the judgments under challenge. 8 In this matter, no question of law emerges for consideration because the trial Court has decided the matter after framing six issues. In support of contention made by the appellant-defendants in the written- statement, however, no documentary evidence was produced before the Court, therefore, while deciding all the issues, the learned trial Court observed that no evidence with regard to passing any order for forfeiting the initial one-fourth amount deposited by the plaintiff has been produced nor any order of cancellation of allotment has been produced on record, therefore, the appellant- defendants failed to prove their case before the trial Court. In view of the finding of Court below that the order of forfeiture is not on record and, so also, there is no order for cancellation of allotment, the plea of the defendant- appellants is baseless and has no foundation to stand in the eye of law. More so, the State Government decided while issuing notification dated 23.03.1994 to restore those allotments and opportunity was given to deposit rest of the amount along with interest at the rate of 24%, therefore, it is obvious that the appellant-defendants have not proved their case before the trial Court. More so, the plaintiff has proved his case that there was tarred road on plot No.11. As such it was not possible for the Mandi 9 Vikas Samiti to give possession of the plot and, accordingly, the allotment was not cancelled nor any order for forfeiture of the one-fourth deposited amount was produced before the Court. Although there is provision in Condition No.20 with regard to delivery of possession after depositing entire amount, but, here, in this case, there is finding of fact that upon the plot in question there was tarred road, therefore, it was not possible for the defendant-appellants to hand over possession and this fact was brought to the notice of the Mandi Vikas Samiti by the plaintiff-respondent. In my opinion, the finding arrived at by the trial Court as well as appellate Court does not require any interference because the finding arrived by the trial Court is based upon documentary evidence placed on record. The trial Court has, therefore, rightly arrived at the finding that in the absence of any document, averments made in the written-statement cannot be accepted. It is settled principle of civil law that both the parties are required to prove their case by documentary evidence. Here, in this case, specific date has been given for passing order for forfeiture of the amount and for cancellation of the plot in question but no such documentary evidence was placed before the trial Court. The judgments cited by learned 10 counsel for the appellant are not applicable upon the facts of instant case because in those judgments cancellation orders were produced on record. Here, in this case, facts are altogether different. Therefore, the finding arrived at by the trial Court cannot be termed perverse and illegal warranting interference in this second appeal. In this view of the matter, no question of law emerges in this second appeal under Section 100, C.P.C. for consideration. This second appeal is, therefore, accordingly dismissed. (Gopal Krishan Vyas) J. Ojha, a.