Ganga Singh vs Bhanwar Lal

Arun Bhansali, J.—This second appeal u/s 100 CPC is directed against the judgment and decree dated 28.7.2012 passed by the District Judge, Pali, whereby the judgment and decree dated 30.8.2011 passed by the Civil Judge (Jr. Div.), Marwar Junction has been upheld.

The facts in brief may be noticed thus: the plaintiff-respondent filed a suit for possession and permanent injunction regarding a plot situated at Village Aauwa. It was inter-alia claimed that an application dated 1.7.1969 was filed with the Gram Panchayat, Aauwa for issuing patta regarding which File No. 20/69-70 was constituted and proceedings were held and it was required of the plaintiff to deposit sale price of Rs. 1,766.25 P. which was deposited on 30.12.1981; the then Sarpanch Prathvi Singh issued patta in favour of his relative defendant which was cancelled by the Gram Panchayat, Aauwa on 10.7.1991 and whereafter, the patta dated 1.9.1997 has been issued to the plaintiff. On 23.11.1999, the defendants taking advantage of plaintiffs'' absence trespassed on the suit property and surrounded it by barbed wire and constructed a room over night. The plaintiffs were entitled for possession of the suit property.

A written statement was filed by the defendants questioning the title of the plaintiffs and denied that they have trespassed on the land. It was claimed that the plot was of their possession and they had patta issued by Gram Panchayat; the possession was quite old; patta was issued in 1982 which could only be cancelled by the civil court; Gram Panchayat had no right to cancel the said patta; it was claimed that the patta issued in favour of the plaintiffs deserves to be cancelled. The objections relating to maintainability of the suit in absence of panchayat were also raised.

From the pleadings of the parties, the trial court framed eight issues. On behalf of the plaintiffs, six witnesses were examined and on behalf of the defendants, six witnesses were examined.

After hearing the parties, the trial court came to the conclusion that the entire procedure relating to issuance of patta regarding the suit plot was over in the year 1981 when the consideration was deposited by the plaintiffs and the patta Ex.-7 in favour of the defendants could not have been issued. The patta of the defendants has been duly cancelled by the competent authority and any challenge made by the defendants against cancellation was not available on record and therefore, the plaintiff was entitled to possession; no relief was sought against the Gram Panchayat and therefore, the Gram Panchayat was not a necessary party; suit for declaration was not required to be filed; the issue pertaining to pecuniary jurisdiction was also decided against the defendants; ultimately, the trial court decreed the suit filed by the plaintiffs for possession and granted injunction against any interference after the possession was handed over to the plaintiff.

Feeling aggrieved, the defendant filed first appeal. The first appellate court after critically re-appreciating the entire oral and documentary evidence available on record came to the conclusion that after receiving a sum of Rs. 1,766.25 P. on 30.12.1981 as consideration for the suit property, the Sarpanch of the Gram Panchayat issued patta to the defendant free of cost on 29.9.1982, which was cancelled by the Gram Panchayat vide Ex.-1 and was not questioned by the defendants anywhere, whereafter the patta was issued in favour of the plaintiff in the year 1997 which patta was still valid and in existence. The witness of the defendants admitted that the property was in possession of the plaintiffs for over 50 years and in any case, since 1.9.1969, the plaintiffs were in possession which was proved by Ex.-3 and therefore, the defendants have no right to trespass on the suit land and raised construction. The findings on other issues recorded by the trial court was also upheld by the first appellate court and consequently, the appeal was dismissed.

It is submitted by learned counsel for the appellants that both the courts fell in error in decreeing the suit filed by the plaintiffs. It was submitted that both the courts failed to consider important aspect that the cancellation of appellants'' patta took place at his back and therefore, the said order was void ab initio and consequently, the patta issued in favour of the plaintiffs in the year 1997 was of no consequence. However, having ignored the said aspect, both the courts committed serious error of law in decreeing the suit filed by the plaintiff. It was further submitted that the possession of the plaintiffs at any point of time and their alleged dispossession was not proved from the record and on that count also the suit could not have been decreed. The appeal involves substantial question of law and therefore, the same deserves to be admitted.

Learned counsel for the respondents duly supported the judgment passed by both the courts below.

I have perused the judgments passed by both the courts below and have perused the record of the courts below.

A bare look at the two conflicting documents reveal strange state of affairs while the sale deed issued in favour of the plaintiffs clearly indicates File No. 22/69-70; date of constitution of the said file being 1.7.1969; having received a consideration of Rs. 1,766.25 P.; resolution of Gram Panchayat dated 1.10.1981; receipt of the consideration being 69/30.12.1981 and is duly signed by the Sarpanch of the Gram Panchayat, the so-called patta issued in favour of the defendants-appellants (Ex.-7) indicate the form of patta meant for ''free of cost allotment of plots to persons belonging to Schedule Castes, Schedule Tribe, Artisan, Small & Marginal farmers''; and the same is dated 29.9.1982 having been issued to the defendants'' father Pukh Singh and clearly indicates his vocation as ''private service''. The document does not bear any file number, outward number etc.

A look at the so-called patta Ex.-7 issued by the Sarpanch to the father of the defendants on 29.9.1982 free of cost for a land, for which already a sum of Rs. 1,766.25 P. had been deposited by the plaintiff, under the provisions meant for free of cost allotment to persons belonging to Schedule Castes, Schedule Tribe, Artisan, Small & Marginal farmers, who admittedly does not belong to any of the above categories, appears on face of it without jurisdiction and the very fact that the document does not bear any file number or outward number, makes the very existence of a valid document as doubtful. The Panchayat Samiti on proceedings initiated by the plaintiff vide Ex.-1 after noticing the entire sequence of events starting from the year 1969 and noticing the apparent deficiencies in the patta Ex.-7 cancelled the same by way of its resolution dated 10.7.1991.

Though, the defendant claimed in the written statement that the patta issued in favour of the plaintiffs was liable to be set aside, neither any counter claim was filed nor any court fees in this regard was paid and no specific prayer was made in this regard and consequently, no issue was framed by the trial court and therefore, the plea raised by the appellant regarding cancellation of the patta at his back and issuance of patta in favour of the defendant being incorrect has no substance. Having scrutinised the two documents Ex. 2 & Ex.-7, the findings recorded by both the courts below cannot be said to be perverse.

So far as plea about not hearing of the appellant before cancellation of patta is concerned, though nothing is available on record to support the said plea, even if the plea had any substance, in view of the fact that the patta (Ex.-7), as noticed here-in-before is on its face invalid, on the unsubstantiated allegation of non-hearing such an illegal and invalid patta could not have been given any credence by the courts below.

The factual plea raised by the appellants regarding possession of the suit property, stands concluded by the concurrent findings recorded by both the courts below and the same cannot be said to be perverse so as to give rise to any substantial question of law in the present second appeal.

In view of above discussion, the appeal has no substance and the same is, therefore, dismissed.

The second stay application filed by the appellants is also dismissed.