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Judgment
This appeal is directed against the judgment and decree dated 12.01.2018 passed by the Additional District Judge, Balotra, whereby the appeal filed by
the appellant against the judgment & decree dated 27.10.2016 passed by the Senior Civil Judge, Barmer has been rejected.
The appellants filed a suit for permanent injunction inter-alia with the averments that land of their ownership and possession situated at Mohalla
Liladiya Dhora in Barmer measurement whereof were indicated in para 1 of the plaint was in possession from the beginning of their father / grand-
father, the patta in this regard was issued by the ex-jagirdars of Barmer in samvat 2004 since then they were in possession of the land. It was claimed
that the houses etc. are existing on the land and temple of Sanishchar Ji and Hanuman Ji was also there, some plots from the land were sold and rest
of the land has been marked, the land was never in possession of the State Government, Municipal Board, Barmer and that at no stage, the patta given
by the jagirdars was challenged.
Further submissions were made that a suit was filed by the plaintiffs and other co-owners against one Hukma Ram for possession, which suit was
decreed, wherein the patta in question was recognized.
A criminal case was lodged against the plaintiffs and other co-owners, wherein also the patta was recognized and FR was given. Submissions were
also made that notice under Section 91 of the Land Revenue Act were issued to one Sang Singh, which was responded, wherein for the first time the
plaintiffs and other co-owners came to know that the land of their patta was not recorded as abadi and has been recorded as Government land in
khasra Nos.1431, 1431/5 and 1433. Repeated notices were given for recording the land as of their ownership, which were not responded and few
days back, the respondents attempted to dispossess them.
Based on the said submissions, the relief was sought seeking permanent injunction against the respondents from dispossessing the plaintiffs and from
allotting, regularizing and transferring the land in question.
The suit was resisted by the Municipal Board, wherein the ownership and possession of the plaintiff was denied. It was claimed that the land in
question was rightly recorded as Government land and that the same was in possession and ownership of the defendants. The submissions made
regarding the previous suit and the criminal proceedings were denied.
Based on the pleadings of the parties, the trial court framed twelve issues. On behalf of the claimants five witnesses were examined and 26
documents were exhibited. On behalf of the defendants, four witnesses were examined and 06 documents were exhibited.
After hearing the parties, the trial court came to the conclusion that the plaintiffs have failed to prove important facts from their evidence and have
expressed ignorance pertaining to the said facts, the suit for permanent injunction has been filed without seeking declaration and besides the plaintiffs,
the relief has been sought for other co-tenants and transferees of the property. Whereafter, various issues were dealt with and the suit was dismissed.
Feeling aggrieved, the plaintiffs filed first appeal. The first appellate court after hearing the parties and re-assessing the entire evidence available on
record, inter-alia recorded the following findings :-
“56- bl ekeys esa oknh dh vksj ls tks lk{; is’k gqbZ gS mlds lexz fo’ys""k.k ls ;g tkfgj gS fd oknh us okni= esa tks oknxzLr Hkwfe gksuk
crkbZ gS ml lEiw.kZ oknxzLr Hkwfe ij oknh us viuk dCtk o LokfeRo gksus ls bUdkj fd;k gSA Lo;a oknh ds vuqlkj mDr lEiw.kZ oknxzLr Hkwfe esa
ls Hkwfe ds dbZ Hkkx djhc lkS yksxksa dks cSph tk pqdh Fkh o mDr lkS yksxksa dks cSph xbZ Hkwfe ij oknh dk LokfeRo o dCtk ugha gS rFkk
mDr lkS yksxksa dks cSph xbZ Hkwfe esa oknxzLr Hkwfe dks lfEefyr dj ;g okn is’k fd;k x;k gSA vr% ,d fuf’pr ifjlhek dh Hkwfe ij oknh viuk
dCtk o LokfeRo lkfcr djus esa vlQy jgk gSA bl ekkeys esa Lohd`r rF; gS fd oknxzLr Hkwfe dks jktLo vfHkys[k esa jktLo Hkwfe ds :i esa
n’kkZ;k x;k gSA ;|fi oknh us oknxzLr Hkwfe dks viuh iV~Vklqn Hkwfe gksuk crk;k x;k gS] ijUrq mDr rFkkdfFkr iV~Vs ds vk/kkj ij oknh us
jktLo vfHkys[k esa lq/kkj dh dksbZ dk;Zokgh dh gks ;k oknxzLr Hkwfe dks vius LokfeRo dh vkcknh Hkwfe ds :i esa ntZ djus dh dksbZ dk;Zokgh dh
gks ,slk rF; U;k;ky; ds le{k izdV ugha fd;k x;k gSA oknh us pwafd jktLo vfHkys[k esa izfof""B;ksa dks fujLr djokus dh ;k jktLo vfHkys[k dh izfof""B
esa lq/kkj djus dh o rFkkdfFkr iV~Vs ds vk/kkj ij oknxzLr Hkwfe dks Lo;a ds uke ls vkcknh Hkwfe ds :i esa ntZ djus dh dksbZ dk;Zokgh ugha dh gS o
orZeku esa mDr Hkwfe jktLo vfHkys[k esa izfroknhx.k ds uke ntZ gS rks ,slh ifjfLFkfr esa tc rd oknxzLr Hkwfe ij oknh Lo;a dks Lokeh ?kksf""kr
djokus dh izkFkZuk ugha djrk gS rFkk LokfeRo ?kks""k.kk dk okn i’s k ugha djrk gS rc rd dsoy fu""ks/kkKk dk okn iks""k.kh; gksuk ugha dgk tk
ldrkA
60- vf/kuLFk U;k;ky; us vius le{k i’s k gqbZ lEiw.kZ lk{; dk foospu djrs gq, vkykSP; fu.kZ; ikfjr fd;k gSA vf/kuLFk U;k;ky; } kjk foosd iw.kZ
rjhds ls o rdZlaxr rjhds ls lk{; dk fo’ys""k.k fd;k x;k gSA ,slh ifjfLFkfr esa vf/kuLFk U;k;ky; }kjk ikfjr fd, x, fu.kZ; esa fof/k ;k rF; dh dksbZ =qfV
gksuk tkfgj ugha gksrk gSA bl ekeys esa vihykFkhZ ds vf/koDrk }kjk bl rF; ij vR;f/kd cy fn;k x;k gS fd vf/kuLFk U;k;ky; us muds }kjk i’s k fd, x,
lEiw.kZ nLrkostkr dk voyksdu ugha dj dsoy ljljh n`f""V ls vkykSP; fu.kZ; ikfjr fd;k gS] ijUrq odhy vihykFkhZ ds mDr rdksaZ esa dksbZ cy gksuk izrhr
ugha gksrk gS] D;ksafd Lohd`r :i ls oknh vihykFkhZ us iV~Vs ds vk/kkj ij viuk LokfeRo n’kkZrs gq, okni= ds in la[;k 1 esa of.kZr lEiw.kZ Hkwfe
ij fu""ks/kkKk pkgh gS rFkk okni= ds in la[;k 1 esa of.kZr lEiw.kZ Hkwfe ij viuk dCtk o LokfeRo gksuk lkfcr ugha fd;k gSA vfuf’pr lhekvksa dh
Hkwfe ckcr~ fdlh Hkh ifjfLFkfr esa LFkkbZ fu""ks/kkKk tkjh ugha dh tk ldrh gSA oknxzLr Hkwfe dks jktLo vfHkys[k esa izfroknhx.k ds uke ntZ
gksus ds rF; ls bUdkj ugha fd;k gS o mDr izfof""B;ksa dks fujLr djokus ;k lq/kkj djokus dh dksbZ dk;Zokgh rd ugha dh xbZ gSA mDr izfof""B;ka ds
ekStwn jgus ds ckotwn bl okn esa Hkh oknh us LokfeRo ?kks""k.kk ckcr~ dksbZ lgk;rk ugha pkgh gS] ,slh ifjfLFkfr esa dsoy fu""ks/kkKk dh lgk;rk
ckcr~ oknh Lohdkj ugha fd;k tk ldrkA vr% vf/kuLFk U;k;ky; ds fu.kZ; esa dksbZ =qfV gksuk ugha ik;k tkrk gSAâ€
Based on the above findings, the appeal was dismissed.
It is submitted by learned counsel for the appellants that the courts below committed grave error in dismissing the suit / appeal filed by the appellants.
It was submitted that the appellants were in possession of the land in question based on patta issued by the ex-jagirdars and that the respondents had
no right to record the land in question as Government land and therefore, when the plaintiffs were sought to be dispossessed / their possession
interfered with, the suit filed by them for injunction was maintainable and both the courts committed error in coming to the conclusion that in absence
of a suit seeking declaration, the plaintiffs were not entitled to any relief.
Further submissions were made that already findings pertaining to the validity of patta have been recorded by the competent civil court and even in
criminal proceedings, the patta has been held as valid and therefore, there was no necessity to seek declaration for protecting the possession by the
plaintiffs and therefore, the judgment impugned passed by the courts below deserves to be quashed and set-aside.
Learned counsel appearing for the respondents supported the judgments impugned. It was submitted that the nature of patta which is sought to be
relied on by the plaintiffs is wholly dubious, the same does not bear any stamp duty and/or is not registered and therefore, the patta relied on does not
create any right in favour of the plaintiffs. Further submissions were made that as in the so-called previous suit, the defendants were not party, any
finding recorded in their absence cannot be binding in the present case.
Submissions were also made that once the land has been recorded as Government land, the only option left for the plaintiffs was to seek appropriate
declaration before the competent court and a simple suit for injunction was not maintainable and therefore, the appeal filed by the appellants deserves
dismissal.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
As already noticed herein-before, the suit for injunction was filed based on the patta said to have been issued by the exjagirdars. Patta as noticed by
the courts below does not bear either the stamp duty and/or is also unregistered. Admittedly, the land regarding which the injunction has been sought,
is recorded as Government land, regarding which, the plaintiffs admittedly have not taken any steps for rectification of the said entries before the
courts of competent jurisdiction.
Learned counsel for the respondents is justified in her submissions that any finding recorded in the suit pertaining to the validity of the patta to which
the defendants are not a party, the said finding cannot be used against the defendants and/or the same are in any case not binding.
The appellate court in its elaborate and exhaustive judgment has recorded categoric findings that the suit filed by the plaintiffs is totally open handed,
inasmuch as, the plaintiffs have already transferred large chunks of land to about 100 persons, which presently is not in their ownership and
possession, however, the suit pertains to the land including the transferred land. Further the court was also of the opinion that the nature of injunction,
which was sought, without specifying the land presently under the possession of the plaintiffs, no blanket injunction can be granted based on a patta,
from which the land has been transferred to innumerable persons. The findings of fact recorded by the two courts below and the reasoning given
for dismissal of the suit / appeal cannot be faulted on any ground. There is absolutely no substance in the present second appeal, no substantial
question of law arises in the present appeal, the same is, therefore, dismissed.