Mohammed Suleman S/o Shri Chand Mohammed vs Muncipal Board, Salumber, District Udaipur

This second appeal has been preferred by the appellant

against the judgment and decree dated 22.8.1994 passed by

Additional District and Sessions Judge No.2, Udaipur in Civil First

Appeal No.7/92 whereby the appeal filed by the appellant was

dismissed and upheld the judgment and decree dated 1.6.1992

passed by the Munsif and Judicial Magistrate 1 st Class Salumber in

Civil Original Case No.17/81 whereby the suit filed by the

appellant was dismissed.

Brief facts of the case are that on 18.2.1981 the

appellant filed a civil suit for injunction before the trial court on

the ground that he is in peaceful possession of disputed land and

the said land does not fall within the jurisdiction of respondent-

Municipal Board, Salumber, but the defendant, without

jurisdiction, is going to dispossess him from disputed land, so injunction may be granted against the respondent-defendant. The

defendants disputed all the facts mentioned in suit and contended

that the disputed land is situated in municipal area and Municipal

Board, Salumber is owner of the disputed land and plaintiff has

made encroachment over the said land, so the defendant removed

the encroachments made by the plaintiff on the disputed land on

3.11.1971, however, the plaintiff again unauthorisedly gained

possession of the said property for which the defendants

registered a case against the plaintiff. The defendant also stated

in the written statement that the plaintiff did not give two months''

notice to the defendant under Section 279 of the Municipalities

Act. The defendants also stated in their reply that they have right

to remove the encroachments made over the said land and prayed

that the suit filed by the plaintiff may be rejected.

The trial court after going through the material and

evidence available on record framed the followed issues :-

"VERNACULAR MATTER OMITTED"

The plaintiff adduced three witnesses and the

defendant also adduced three witnesses. After hearing learned

counsel for the parties, the learned trial court decided the issues

No.1, 2, 3, 4, 6 and 7 against the plaintiff and issue No.5 against

the defendant and dismissed the suit vide order dated 1.6.1992 in

Original Civil Suit No.17/1981.

After dismissal of the said suit, the appellant feeling

aggrieved filed an appeal before the District Judge, Udaipur, the

same being Civil First Appeal No.7/1992 was thereafter

transferred to the Court of Additional District Judge No.2, Udaipur.

By order dated 22.8.1994, the Additional District and Sessions

Judge No.2, Udaipur dismissed the appeal and upheld the

judgment and decree passed by learned Munsif and Judicial

Magistrate 1st Class, Salumber. Being aggrieved with the

judgment and decree passed by both the courts below, the

appellant filed this second appeal before this Court. In this second

appeal the coordinate Bench of this Court at the time of admitting

this appeal determined the following substantial questions of law

for consideration on 17.2.1995 and granted interim order in favour

of the plaintiff:-

"1. Whether the Municipality can exercise powers in the area which had legally not been transferred to them nor has vested in them?

Whether the provisions contained in 203 of the Raj. Municipalities Act authorised Municipal Board to take adequate steps in removing or dis-possession and a person over that part of the property which had never become a Municipal Property or had never vesting in them?

That whether in the instant case there was any permission by a person so appointed or authorised by the State Govt. in favour of the Municipal Board Salumber to proceed in the matter without deciding as to who was the authorised persons?"

Heard learned counsel for the parties and perused both

the judgments and oral as well as documentary evidence available

on record.

Learned counsel for the appellant has contended that

the learned trial court as well as learned first appellate court have

failed to decide the issue No.2 as framed in the suit and did not

consider the relevant evidence about issue No.2. He has further

contended that the first appellate court has failed to decide the

every issue separately, as the provisions are mandatory to decide

every issue separately by the appellate court.

Learned counsel for the appellant has also contended

that in trial court the appellant has proved his case that the

disputed land is in his possession since long and respondent is not

owner of the said land nor respondent has any right to dispossess

the appellant from the said land. It is also contended that

respondent has failed to prove that the disputed land is within the

jurisdiction of Municipal Board and the same is in its possession.

The respondent failed to prove that on what basis and under

which authority, it has dispossessed the plaintiff from the disputed

land.

The contention of learned counsel for the appellant that

the first appellate has not decided the every issue separately, so

the judgment itself is vitiated and is not tenable. The learned

counsel for the appellant has failed to point out that without

deciding every issue separately what illegality has been committed

by the first appellate court.

The contention of learned counsel for the appellant-

plaintiff that respondent has no right to remove the possession of

the appellant-plaintiff because the disputed land is not recorded in

the name of Municipality. Since Nagar Palika, Salumber is owner

of the said land, the same cannot be treated as municipality land.

The Sub-Divisional Officer has recommended for conversion and

issued an order for handing over the possession of the said land to

the Municipality. This argument of learned counsel for the

appellant-plaintiff is not tenable because according to documents

Exhibits A/4, A/5 and A/6, the disputed land is in the name of

respondent-Nagar Palika, Salumber and according to Exhibit A/9,

the Sub-Divisional Officer, Salumber empowered the respondent to

dispossess the appellant from the disputed land.

On the contrary, learned counsel for the respondent has

contended that the plaintiff is trespasser, so he is not entitled to

get any injunction against the respondent. He has also contended

that as per Ex.5, the said land is situated in the area of

respondent-Municipal Board, Salumber. It is also also contended

that in pursuance of order Ex.9 passed by S.D.O., the respondent-

Municipal Board, Salumber has dispossessed the appellant so it

cannot be said that the respondent has acted without any

authority or jurisdiction.

Upon perusal of the record, it is clear that in this case,

it is admitted position that the appellant-plaintiff is trespasser and

respondent Nagar Palika removed the encroachments of the

appellant-plainiff in the year 1971 and thereafter he again

trespassed over the same land.

Upon perusal of the plaint, it is also clear that the

plaintiff has not clearly stated that how he got and who handed

over him the possession and for how many long period he is in

possession of the said land. Even he has not clearly stated that

what construction he has made over the said land.

Upon perusal of the record, it is also clear that on

behalf of the appellant-plaintiff, written arguments were also filed

in the trial court on 1.6.1992, in which he admitted that he is

trespasser over the disputed land, but he failed to prove that on

what basis he has gained the possession over the said land.

For the sake of arguments, if it is assumed that it is

irregularity, then it can be rectified by the competent authority.

The plaintiff cannot take advantage of irregularity committed by

any authority. When the plaintiff came in the court on the basis of

long possession over the disputed property, then it was his duty to

prove that he had in long and legal possession over the said land,

but the appellant-plaintiff has failed to prove his long and legal

possession over the said land and he also admitted this fact that first time in the year 1973, the respondent dispossessed him and

again he took possession over the said land in 1980, so it is clear

that the plaintiff is repeated trespasser over the said land. The

plaintiff is not in legal possession over the said land and he is a

trespasser.

It is settled law that a trespasser is not entitled for any

injunction as he has not acquired any right or interest in the said

property irrespective of his long possession and even if he is in

long possession over the said land, it would also be of no legal

consequences. The Courts are not justified in protecting the

possession of a trespasser. The protection of the Court can never

be granted or extended to a person, who has long illegal

possession. The appellant-plaintiff Mohammed Suleman has

utterly failed to establish that the disputed land is in his

possession since long time and his possession is legal. It is

admitted fact that the appellant-plaintiff has no title over the land

in question.

The possession of the plaintiff is wholly unlawful, he is

trespasser and injunction could not be granted in favour of a

trespasser or a person, who gained unlawful possession.

The learned appellate court in its judgment dated

22.8.1994 has elaborately narrated as under:-

"VERNACULAR MATTER OMITTED"

I do agree with the observation of the first appellate

court in connection with the above arguments. Contrary to this,

on perusal of Exhibits A/4, A/5 and A/6, the disputed land is in the

name of respondent Nagar Palika, Salumber and it is the owner of

the disputed land and according to Ex.A/9, the Sub-Divisional

Officer, Salumber empowered to the respondent for dispossessing

to the appellant-plaintiff from the disputed land due to his

encroachment.

The Hon''ble Supreme Court in the case of Premji

Ratansey Shah & Ors. Vs. Union of India (UOI) and Ors. reported

in 1994 SCC (5) 547 has held that :-

"Civil - Injunction - Plaintiff filed suit for injunction not to interfere with their possession - However, High Court dismissed suit of injunction - Hence, this Appeal - Whether, an injunction could be issued against true owner - Held, - Courts below had rightly rejected relief of declaration and injunction in favour of Petitioners who had no interest in property - However, their possession was wholly unlawful possession of trespasser and an injunction could not be issued in favour of trespasser or person who gained unlawful possession, as against owner - Pretext of dispute of identity of land should not be an excuse to claim injunction against true owner -Thus, injunction would not be issued against true owner - Hence, there was no ground warranting interference with judgments and decrees of courts below - Appeal dismissed".

Having perused the judgments and evidence available

on record, this Court is satisfied that the courts below have not

misread any evidence nor the findings of facts of the courts below

can be said to be perverse. The courts below have rightly come to

the concurrent finding that the appellant-plaintiff is trespasser and

he is not in long legal possession over the said land.

In view of the above discussions, no interference is

called for by this Court in concurrent findings recorded by both the

courts below. No substantial question of law involved in this

second appeal. The trial court and the first appellate court were

justified in rejecting the plaint of the appellant-plaintiff. The

substantial questions of law framed above by this Court deserve to

be answered against the appellant-plaintiff and same are

accordingly answered against the appellant-plaintiff.

Under these circumstances, I do not find any ground

warranting interference in the impugned judgments and decrees

passed by both the courts below, so this second appeal deserves

to be dismissed and same is hereby dismissed. The stay

application is also rejected.

No order as to costs.