Municipal Board Jhunjhunu vs Prahlad Ram (since Deceased)

The instant second appeal has been preferred by the

defendant-appellants under Section 100 CPC against the judgment

and decree dated 19.8.1996 passed by Additional District Judge,

Jhunjhunu (hereinafter referred to ''First Appellate Court'') in

Appeal No.1/1996 (13/1995), whereby the learned First Appellate

Court allowed the appeal filed by the plaintiff-respondent and

reversed the judgment and decree dated 28.4.1995 passed by

Civil Judge (Jr.Division) & Judicial Magistrate, Jhunjhunu

(hereinafter referred to ''trial Court'') in Civil Suit No.91/1990,

whereby the learned trial Court dismissed the suit filed by the

plaintiff-respondent.

Skeletal material facts necessary for disposal of the appeal

are that a suit was filed by the plaintiff-respondent for permanent

injunction to restrain the defendant-appellants not to cause any

hindrance in construction of boundary wall of his ''Bada'' (plot)

stating therein that the plaintiff is owner of the ''Bada'' mentioned

in Para No.1 of the plaint and the ''Bada'' is in his possession. The

plaintiff purchased the plot in Samvat 2004 from ''Thikana Balonda''

and a ''Patta'' was issued in his favour. It is also pleaded that a case

under Section 145 of Cr.P.C. with regard to the property in dispute

was decided by SDM, Jhunjhunu on 6.4.1961 in favour of the

plaintiff. The plaintiff is in possession of the ''Bada'' for a long time

and it is surrounded by fencing. It is also pleaded that to construct

a ''pucca'' boundary wall, the plaintiff submitted an application to

the defendants for permission with requisite site plans but the

permission has not been accorded to him for seven months.

Thereafter, the plaintiff served a notice on 24.8.1990 on the

defendants to accord permission within 15 days, failing which he

will start the construction. The plaintiff started construction on

20.9.1990. Then some persons of defendants came to the spot

and restrained the plaintiff for putting the boundary wall of the

''Bada''.

The defendant-appellants filed written statement stating

therein that the plaintiff had no right, title or interest in the said

piece of land and it is property of Municipal board and the plaintiff

had no right to carry out any construction on the property of

Municipal Board. It is also averred that after inspection of the site,

the application for permission for construction of boundary wall

has been rejected by the Municipal Board vide order dated

27.8.1990. It is further averred that the suit is not maintainable,

as no notice under Section 80 CPC and Section 271 of Rajasthan

Municipalities Act was served and prayed to dismiss the suit with

cost.

On basis of the pleadings of the parties, the learned trial

Court framed following issues :

"VERNACULAR MATTER OMITTED"

The plaintiff examined PW.1-Bheem Singh, PW.2-Prahlad

Ram, PW.3-Chandra Dutt Sainik & PW.4-Hanuman and exhibited

as many as four documents in support of his case. The defendants

examined DW.1-Rajendra Joshi in support of their case and did not

produce any documentary evidence.

Learned trial Court after hearing the parties decided Issues

No.1 & 2 against the plaintiff, Issues No.3 & 4 against the

defendants and dismissed the suit filed by the plaintiff-respondent

vide judgment and decree dated 28.4.1995. Being aggrieved and

dissatisfied with the judgment and decree passed by the learned

trial Court, the plaintiff-respondent preferred first appeal

alongwith an application under Order 41 Rule 27 readwith Section

151 CPC, which was allowed by the First Appellate Court on

22.3.1996 on cost of Rs.100/- and the documents filed by the

plaintiff with the application were taken on record with liberty to

the defendant-appellants of filing the documents in rebuttal, if

desired. The First Appellate court recorded statements of the

plaintiff Prahlad Ram as appellant witness No.1, who exhibited

four documents to be Ex.5 to Ex.8. The defendants did not choose

to produce any evidence in rebuttal, as is evident from the order

dated 25.5.1996 on the record of First Appellate Court.

After hearing learned counsel for the parties, the First

Appellate Court allowed the appeal vide impugned judgment and

decree dated 19.8.1996 and decreed the suit filed by the plaintiff-

respondent for permanent injunction. Being aggrieved and

dissatisfied with the judgment passed by the First Appellate Court,

the defendants have preferred the present second appeal.

On 5.3.2008 following substantial questions of law were

formulated, which reads as under :

"(i). Whether it was necessary for the present appellant

to have filed an appeal on decisions given on Issue Nos.3 & 4 against it and whether by not doing so the learned lower appellate court could have drawn any adverse inference or could have relied upon them for reversing the decision of the learned trial Court and finding that the case of the plaintiff had been made out on that account ?

(ii) Whether the Patta could have been read in evidence when it was not registered ?

(iii) Whether the thikanedar of Balonda had any right to issue the Patta even if it be considered that the Patta had been issued "

(iv) Whether the judgment of the Criminal Court given in proceedings under Section 145 of the Criminal Procedure Code between different set of parties including the plaintiff could be considered to be at all relevant for purposes of proving the possession of the plaintiff over the suit property ?

(v) Whether the boundaries of the suit property were not tallying with the boundaries of the Patta ?

(vi) Whether the weakness of the defendant could be a ground for decreeing of the suit ?"

Heard learned counsel for the parties.

Mr. G. K. Garg, Sr. Advocate assisted by Ms. Anita Agarwal

for the appellants submitted that the First Appellate Court was

absolutely wrong in holding that the defendants ought to have

been filed an appeal with regard to decision given by the learned

trial Court on issues No.3 & 4 against it. Learned counsel also

submitted that filing of such an appeal was not necessary when

the suit was dismissed. The appeal was not filed merely because

Issues No.3 & 4 have been decided against the defendants. It is

the overall effect of the judgment and decree which has to be

taken into account to see whether the appeal is necessary or not.

The judgment under appeal could be supported by defending the

issues ought not to have been decided against the defendants.

Learned counsel for the appellants further contended that

the learned First Appellate Court has taken into consideration the

decision given by the S.D.M. in the proceedings under Section 145

Cr.P.C., which is not at all relevant for the reason that the

defendants-Municipal Board were not party to the proceedings.

Learned counsel also submitted that Exs.5, 6, 7 & 8 do not prove

the title of the plaintiff. By getting water or electricity connection,

no one becomes owner of the property and gets the title over the

property in question.

Learned counsel for the appellants further contended that

the learned First Appellate Court decided the question of

boundaries against the Municipal Board and in favour of the

plaintiff, is erroneous because the reasons given by the learned

trial Court have not been met with by the First Appellate Court.

Learned counsel for the appellants also contended that the

onus of proving the title over the suit property lies on the plaintiff

and if the plaintiff failed to prove his title, the suit should fail and

weakness of the defendants should not be taken into account.

Admittedly, the land in question is ''Aabadi'' land and situated

within the notified area of the Municipal Board, Jhunjhunu. All

''Aabadi'' land lying within the notified area of municipality should

be presumed either of the State Government or of the Municipal

Board unless the contrary is proved and the contrary has not been

proved in this case, therefore, it is proved that the land in

question does not belong to the plaintiff. In support of his

submissions, learned counsel for the appellants placed reliance on

the cases of S. Kaladevi Vs. V. R. Somasundaram & Ors

reported in (2010) 5 SCC 401, Ram Daan (Dead) through

LRS Vs. Urban Improvement Trust reported in (2014) 8 SCC

902, Corporation of City of Bangalore Vs. Zulekha Bi & Ors

reported in (2008) 11 SCC 306, Municipal Council, Pali Vs.

Bahadur Raj Mehta reported in RLR 2001 (1) 390, State of

J&K Vs. Hindustan Forest Co. & Ors. reported in (2006) 12

SCC 198, Suraj Lamp & Industries Pvt. Ltd. Vs. State of

Haryana & Anr. reported in (2012) 1 SCC 656 and in Firm

Keshri Dal & Oil Mill Vs. Rajasthan State Industrial

Development & Investment Corporation, Jaipur & Ors.

reported in 2015 (3) WLC (Raj.) 208.

Per contra, Mr. Bipin Gupta assisted by Mr. Ishan Kumawat

learned counsel for the plaintiff-respondents defended the

impugned judgment passed by the learned First Appellate Court

and submitted that the provisions of Order 41 Rule 33 CPC is not

applicable in the present case, rather in Para No.8 of the

impugned judgment, the learned First Appellate Court framed

points for determination to be decided as required under Order 41

Rule 31 CPC. Learned counsel also submitted that the plaintiff also

produced additional documents Ex.5 to Ex.8 in First Appellate

Court, which were taken on record after recording evidence of the

plaintiff. In rebuttal, the defendants did not choose to produce any

evidence.

Learned counsel for the respondents also contended that

there was no cross-objection or cross-appeal in respect of Issues

No.3 & 4, the burden of which was on the defendants and they

failed to discharge the burden, therefore, the defendants could

have only supported the decree passed by the learned trial Court,

but could not force the Court to decide the Issues No.3 & 4, which

were not disputed in the appeal, as the First Appellate Court had

to decide only the facts and the pleadings in the appeal between

the parties.

Learned counsel for the respondents also submitted that the

First Appellate Court determined points for determination to

decide the Issues No.1 & 2 only because the defendants have not

placed any document in the First Appellate Court to get the Issues

No.3 & 4 to be decided in their favour nor they challenged the

Issues No.3 & 4 anywhere. Learned counsel further contended

that provisions of Order 41 Rule 33 CPC is discretion of the Court

and that power could be exercised by the Court and not by a party

as a matter of right. Order 41 Rule 22 CPC gives a right to a party

to challenge the findings against him by filing a cross-objection

and in absence of right having been exercised by the appellants

before the First Appellate Court by way of filing cross-objection on

Issue No.3 & 4, the defendants cannot argue that they were

deprived of right to argue on issues No.3 & 4.

Learned counsel for the respondents further submitted that

Section 110 of the Evidence Act specifically provides that prima

facie person in possession is treated to be owner of the property

against whole world except the true owner. As the learned trial

Court had gone in the issue of ownership in the suit for injunction

simplicitor, the First Appellate Court has correctly found that in the

suit for injunction, title has not to be seen and even if the plaintiff

fails to prove title but proves the possession, the plaintiff is

entitled for a decree of injunction on the basis of Section 110 of

Evidence Act. The learned First Appellate Court on the basis of

Ex.5 has found the plaintiff to be in possession of the disputed

land. Learned cousnel also argued that in Issue No.3, the

defendants were not found owner of the property on the basis of

evidence of DW.1. Learned counsel further submitted that the

defendants pleaded the property in question to be the Municipal

property, the burden was on the defendants to prove to be true

owner of the property. When the plaintiff had been found in

possession on the basis of Ex.5, wherein the defendants admitted

the ownership of the plaintiff, the First Appellate Court decreed the

suit of injunction and thus no illegality has been committed.

Learned counsel for the respondents also contended that the

learned First Appellate Court had not decided the suit merely on

the basis of order passed by the SDM in proceedings under

Section 145 of Cr.P.C. The learned First Appellate Court considered

Ex.1, Ex.3 and Ex.5 and the order passed by the SDM wherein the

possession of the plaintiff has been found. Ex.5 is no objection

letter issued by the defendants-Municipality and on that basis the

First Appellate Court found the possession of the plaintiff and

granted decree of injunction. Learned counsel further submitted

that the ''Patta'' in question is of Samvat 2004-05 (corresponding

year 1947) and the First Appellate Court has found that after long

lapse of time it is not necessary that the boundaries would remain

same forever. The First Appellate Court tallied the neighborhood of

the property in question mentioned in site plan (Ex.3) with no

objection letter (Ex.5) issued by the defendants and has

categorically found that the property in question and the property

mentioned in no objection letter (Ex.5) are the same and gave

reasons in the judgment of not tallying with the ''Patta'' (Ex.1). In

support of his submissions, learned counsel for the respondents

placed reliance on the cases of M. Kallappa Setty Vs. M. V.

Lakshminarayan Rao reported in AIR 1972 SC 2299, Chief

Conservator of Forests, Govt. of A.P. Vs. Collector & Ors

reported in AIR 2003 SC 1805, Raees Ahmed Vs. Shrigopal

Prakash & Ors reported in 2002 (2) WLC (Raj) 639, Abdul

Latif & Ors. Vs. Nagar Vikas Pranyas, Udaipur reported in

2006 (4) WLC (Raj) 66, Rame Gowda (Dead) by LRS Vs. M.

Varadappa Naidu (Dead) by LRS & Anr. reported in (2004) 1

SCC 769 and on Babu Lal Vs. Addl.District & Sesions Judge,

Laxmangarh, District Alwar & Ors. passed by Coordinate

Bench of this Court in SB CWP No.9119/2011 on 12.12.2011.

I gave anxious consideration to rival submissions of learned

counsel for the parties and perused record of the case as well as

written submissions filed by learned counsel for the respondents.

The first substantial question of law formulated by the Court

is to the effect that the defendants have not filed cross-objections

or cross-appeal on issues No.3 & 4 decided against the

defendants. Learned counsel for the appellants argued that the

First Appellate court has deprived the appellants to argue on issue

No.3 & 4, whereas it was duty of the Appellate Court to apply

provisions of Rule 41 Rule 33 CPC.

In Municipal Council, Pali Vs. Bahadur Raj Mehta

(supra), Coordinate Bench of this Court in Para No.7 of its

judgment observed and held as under :

"In my considered opinion, the learned first appellate court has jurisdiction to mould the relief according to the facts of the present case within the meaning of Order 41 Rule 33 CPC, which clearly provides that the appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."

In Firm Keshri Dal & Oil Mill Vs. Rajasthan State

Industrial Development & Investment Corporation, Jaipur

& Ors (supra), Coordinate Bench of this Court in Para No.9 of its

judgment observed and held as under :

"After having heard the learned counsels for the parties, and after considering the evidence on record, it appears that though the Trial Court had framed as many as 10 issues, the main issues, which fall for consideration before this Court are issue Nos.5 and 6, inasmuch as the learned counsels for the parties had hardly made any submission on the other issues . Though issue No.2

as to whether the plaintiff was given the possession of the plot in question by the defendant Corporation on 9/3/1976 or not and whether the defendant Corporation was entitled to receive rent prior to the said date or not, was decided against the defendant Corporation, the said defendant has not chosen to challenge the said finding, nor has chosen to challenge the direction given by the Trial Court in the operative part of the judgment, by filing the cross-objections in the present appeal or by filing the separate appeal. Of course though the respondent may not have appealed against any part of the decree can support the decree and also state that the findings in respect of any issue recorded by the Court below ought to have been in his favour, in view of Order XLI, Rule 22, and the Appellate Court also has power to pass any decree and make any order which ought to have been passed or made, though the respondent may not have filed any appeal against that part of the decree, which is against him, in view of the provisions contained in Order XLI Rule 33 of CPC."

In view of the above, the First Appellate Court has power to

pass any decree and order which ought to have been passed in

the facts and circumstances of the case, although the respondents

have not filed cross-appeal or cross-objection under Order 41 Rule

22 CPC.

From perusal of the impugned judgment passed by the First

Appellate Court, it reveals that the learned Court framed points for

determination under Order 41 Rule 31 CPC to be decided by the

First Appellate Court. The learned trial Court decided Issues No.3

& 4 against the defendants, Issues No.1 & 2 against the plaintiff

and dismissed the suit filed by the plaintiff. The plaintiff filed first

appeal against the judgment and decree passed by the learned

trial Court. Admittedly, the defendants neither preferred cross-

appeal nor filed cross-objections under Order 41 Rule 22 CPC in

respect of Issues No.3 & 4, the burden of which was on the

defendants and having failed to discharge the burden before the

learned trial Court, the defendants could have only supported the

decree passed by the learned trial Court, but could not force the

First Appellate Court to decide the issues No.3 & 4 which were not

disputed in the appeal.

The defendants have categorically pleaded that Municipal

Board, Jhunjhunu is owner of the property in dispute. The burden

to prove the issue No.3 was on the defendants. The defendants

did not produce any documentary evidence in this regard. The

defendants examined DW.1 Rajendra Joshi, Executive Officer of

defendant-Municipal Board, who has denied the knowledge of fact

whether the property in dispute is recorded in records of Municipal

Board or not. The witness also admitted that there is record of all

properties of Municipal Board, but he had not produced any such

record in the Court. The witness further stated that he does not

know whether the property in dispute is recorded in the record of

Municipal Board or not. Because the defendants have pleaded that

the property in dispute to be the municipal property, the burden

was on the defendants to prove to be true owner of the property,

but the defendants did not produce any documentary evidence in

this regard, as such the learned trial Court decided issue No.3

against the defendants. It is pertinent to note that the defendants

did not produce any evidence in this regard in the First Appellate

Court also. In First Appellate Court the plaintiff produced

additional documents Ex.5 to Ex.8 which were taken on record and

were exhibited. The First Appellate Court provided opportunity to

the defendants to produce evidence in rebuttal of the documents

produced by the plaintiff, but the defendants did not choose to file

any evidence in rebuttal.

Issue No.4 framed by the learned trial Court is with regard to

maintainability of the suit for want of notice under Section 80 CPC

and Section 271 of Rajasthan Municipalities Act. Learned trial

Court decided the issue against the defendants finding that

provisions of Section 80 CPC does not apply in a suit filed against

the municipality, as the officers of municipality are not public

servants for the purpose. The learned trial Court also gave finding

that notice under Section 271 of the Municipalities Act, 1959 is not

necessary in a suit filed against the municipality for the relief of

injunction only. The learned trial Court also observed that the

plaintiff categorically stated in the plaint that notice was served

upon the defendants prior to filing of the suit and the defendants

also admitted in the written statement of having received

plaintiff''s notice dated 24.8.1990. The learned trial Court further

observed that the objection regarding maintainability of the suit in

the want of notice, is not sustainable and decided the issue No.4

against the defendants. The defendants did not advance any

argument with regard to issue No.4 before the First Appellate

Court and even before us in this second appeal.

It is pertinent to note that there is no any application in the

First Appellate Court and no such order depriving the right of

defendants to argue on the issues No.3 & 4. The provisions of

Order 41 Rule 33 CPC is discretionary power of the Court which

can be exercised by the Court and not as a matter of right by a

party to the appeal, whereas Order 41 Rule 22 CPC provides a

right to the respondent to challenge the finding against him by

filing cross-objection. Therefore, in absence of right having been

exercised by the defendants before the First Appellate Court by

way of filing cross-objection with regard to findings of learned trial

Court on issues No.3 & 4, the appellants cannot argue that they

were deprived of right to argue on issues No.3 & 4, only on the

basis of impugned judgment dated 19.8.1996 passed by the First

Appellate Court. Thus, the first substantial question of law is

answered accordingly.

The second substantial question of law is that whether the

''Patta'' could have been read in evidence when it was not

registered, third substantial question of law is that whether the

Thikana Balonda had any right to issue the ''Patta'' and sixth

substantial question of law is that whether the weakness of the

defendants could be a ground for decreeing the suit.

In S. Kaladevi Vs. V. R. Somasundaram & Ors (supra),

the Apex Court held that the documents defined in Clauses (a) to

(e) of Section 17 of the Registration Act, 1908 are compulsorily

registerable, if the value of the immovable property is Rs.100/-

and more and Section 49 provides for effect of non-registration of

the documents required to be registered. According to Section 49

a document required by Section 17 or by any provisions of

Transfer of Property Act to be registered, shall not be received as

evidence of any transaction affecting such property or conferring

such power, unless it has been registered.

In Ram Daan (Dead) through LRs Vs. Urban

Improvement Trust (supra), the Apex Court held that plaintiff

being in possession has a good title against everybody except

rightful owner. It is also held that even assuming the respondent

has no authority to evict appellant, the appellant is entitled to

decree of permanent injunction, subject to right of real owner to

evict the appellant in accordance with law.

In Corporation of City of Bangalore Vs. Zulekha Bi &

Ors (supra), title to the suit property was disputed. Respondent

No.1, who was plaintiff before the trial Court, was claiming title to

the suit property. The Apex Court held that burden of proof was on

the plaintiff to prove her title which she failed to do so as she did

not produce any khata extract or tax receipt to substantiate her

title and the First Appellate Court drew an erroneous inference in

respondent''s favour on the basis of acknowledgment given by

revenue office. The suit in above case was for the relief of

declaration and permanent injunction, whereas the suit in the

instant case is for the relief of permanent injunction only and no

relief of declaration has been sought by the plaintiff, therefore, the

law declared by the Apex Court in this case is not of much help to

the appellants.

In State of J & K Vs. Hindustan Forest Co. & Ors (supra),

the Apex Court held that the onus is on the party to positively

establish it''s case on the best material available and it cannot rely

on the weakness or absence of defence to discharge such onus.

In Suraj Lamp & Industries Private Ltd through

Director Vs. State of Haryana & Anr (supra), the Apex Court

held that a transfer of immovable property by way of sale can only

be by way of deed of conveyance (sale deed). In the absence of

deed of conveyance (duly stamped and registered as required by

law), no right, title or interest in an immovable property can be

transferred.

In M.Kallappa Setty Vs. M. V. Lakshminarayana Rao

(supra), the Apex Court in para Nos.5 & 6 of it''s judgment

observed and held as under :

"So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiff''s case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession visit interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by some one who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief

asked for by him even if he had failed to prove his title satisfactorily. Therefore in our opinion, the High Court was not right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief No. 2.

"6. Now coming to relief No. 1, the plaintiff cannot obtain that relief unless he satisfied the court that he has good title to the suit property. The High Court has come to the conclusion and with that conclusion we agree, that on the material on record, it is not possible to come to the conclusion that the plaintiff has satisfactorily established his title to the suit property. Hence he is not entitled to relief No. 1. Ordinarily under these circumstances we would have remanded the case for deciding the question of title afresh. But this litigation has gone on for a long time and the property in dispute was purchased for Rs. 100. Under these circumstances, it is in the interest of the parties to keep open the question of title to be agitated by the parties if they so desire in fresh proceeding and confirm the decree of the trial court in respect of relief No. 2 and set aside its decree in respect of relief No. 1. As we specifically keep open the question of title, it will not be open to the plaintiff or his representatives or successors to resist any suit the defendant or his representatives or successors may bring in future for possession of the suit on the basis of their title either on the ground of res judicata or Order 11 Rule 2."

In Chief Conservator of Forests, Govt. of A.P. Vs.

Collector & Ors (supra), interpreting the provisions of Section

110 of the Evidence Act, 1872, the Apex Court in para No.19, 21 &

22 of it''s judgment observed and held as under :

"19. It embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title.

The pattedars proved their possession of the lands in question from 1312 Fasli (1902 A.D.) as pattedars. There is long and peaceful enjoyment of the lands in question but no proof of conferment of patta on the late Raja and the facts relating to acquisition of title are not known. The appellant- State could not prove its title to the lands. On these facts, the presumption under Section 110 of the Evidence Act applies and the appellants have to prove that the pattedars are not the owners. The appellants placed no evidence on record to rebut the presumption. Consequently, the pattedars, title to the land in question has to be upheld.

We have gone through the judgement of the trial court as also of the High Court. We have perused the notification issued under Section 29 of the Forest Act. It shows that as many as fourteen villages are enumerated therein. Villages Asadpur and Malachintapalli do not figure in the notification. Even otherwise also, the notification does not show anything more than the fact that the Government has formed a protected forest area. That by itself does hot extinguish the rights of the private owners of the land nor does it show that the lands in question vest in the State. A plain reading of the statutory order passed by the Commissioner of Survey, Settlement and Land Record under Section 166-B of the Land Revenue Act on December 5, 1981 places the matter beyond doubt that the suit lands were patta lands of the Pattedars. For all these reasons, in our view, the High Court has committed no error in confirming the said order of the Commissioner of Survey, Settlement and Land Record and the Judgment and decree of the trial court."

In Raees Ahmed Vs. Shrigopal Prakash & Ors (supra),

the Coordinate Bench of this Court while interpreting Sections 109

& 110 of the Evidence Act, 1872 observed and held as under :

"19. Here I may advert to significant provisions of Section 109 & 110 of the Evidence Act which relates to burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent. As per Section 109, ibid, when the question is whether persons are partners, landlord and tenant, or principal and agent, and if it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it. Similarly according to Section 110, ibid, which relates to burden of proof as to ownership, when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."

In Abdul Latif & Ors Vs. Nagar Vikas Pranyas, Udaipur

(supra), the plaintiff filed a suit for injunction. The plaintiff was in

long possession and the possession was not by the trespass. UIT

did not produce any evidence of vesting of title of land in it.

Coordinate Bench of this Court held that long possession raises

presumption of title in favour of the plaintiffs and the suit is

maintainable even if plaintiffs failed to prove their title and

restrained the UIT from interfering with plaintiff''s possession.

In Rame Gowda (Dead) by LRs. Vs. M. Varadappa

Naidu (Dead) by LRs & Anr. (supra), the Apex Court held that

occupant in "settled possession" cannot be dispossessed without

recourse to law. In the absence of proof of better title, possession

or prior peaceful settled possession is itself evidence of title. Law

presumes the possession to go with the title unless rebutted.

When the defendant fails in proving his title to the suit land the

plaintiff can succeed in securing a decree for possession on the

basis of his prior possession against the defendant who has

dispossessed him. It is also held that test for "settled possession"

must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of

the owner or without any attempt at concealment by the

trespasser.

Section 110 of the Evidence Act specifically provides that

prima facie person in possession is treated to be owner of the

property against the whole world except the true owner.

Learned trial Court had gone in the issue of ownership in the

suit for injunction. The First Appellate Court correctly found that in

the suit for injunction, title has not to be seen and even if the

plaintiff fails to prove his title to the property in dispute, but

succeeds in proving his possession, the plaintiff is entitled for a

decree of injunction on the strength of Section 110 of the

Evidence Act.

Exhibit-5 is no objection letter issued by the defendant-

appellants to the plaintiff-respondent on 16.10.1989 on an

application filed by the plaintiff for obtaining water connection. In

Ex.5, the defendant-Municipality admitted the ownership of the

plaintiff and on the basis of this document, the First Appellate

Court decreed the suit of injunction in favour of the plaintiff-

respondent, categorically finding that the plaintiff is in possession

of the disputed property and the defendants not being found to be

owner of the property under issue No.3 on the basis of evidence

given by DW.1-Rajendra Sharma, Executive Officer of the

defendants. The ''Patta'' (Ex.1) has been referred by the First

Appellate Court only for the purpose of showing the possession of

the plaintiff since Samvat 2004-05 (corresponding year 1947).

While deciding the appeal, the learned First Appellate Court read

the ''Patta'' in evidence for collateral purpose only which is

permitted by proviso to Section 49 of the Registration Act, 1908.

Proviso to Section 49 of the Registration Act provides that an

unregistered document affecting immovable property and required

to be registered may be received as evidence for collateral

purposes in absence of registration.

In view of the above, no illegality has been committed by the

First Appellate Court in decreeing the suit of injunction filed by the

plaintiff-respondent. As such the second, third and sixth

substantial questions of law are answered accordingly.

The fourth substantial question of law is that whether the

order passed by Sub-Divisional Magistrate in a proceeding under

Section 145 of Cr.P.C. between different set of parties including

the plaintiff, could be considered to be relevant for the purposes of

proving the possession of the plaintiff for the suit property.

The learned First Appellate Court has not decided the suit

merely on the basis of finding of Sub-Divisional Magistrate in a

proceeding under Section 145 of Cr.P.C. The learned First

Appellate Court found the plaintiff in possession of the property in

dispute considering ''Patta'' (Ex.1), site plan (Ex.3), no objection

letter (Ex.5) issued by the defendants-Municipality and the order

passed by the SDM in a proceeding under Section 145 of Cr.P.C.,

wherein the possession of the plaintiff has been found. The

learned First Appellate Court found the possession of the plaintiff

to be effective, undisturbed and to the knowledge of the

defendant-Municipality and decreed the suit for injunction on the

strength of settled possession of the plaintiff. Thus, the fourth

substantial question of law is answered accordingly.

The fifth substantial question of law is that whether the

boundaries of the suit property were not tallying with the ''Patta"

and if so, the effect thereof. The ''Patta'' (Ex.1) is of the Samvat

2004-05 (Corresponding year 1947). The learned trial Court

dismissed the plaintiff''s suit finding that the boundaries of the plot

mentioned in ''Patta'' (Ex.1) does not tally with the boundaries

mentioned in site plan (Ex.3). The First Appellate Court allowed

the appeal filed by the plaintiff, finding that after long lapse of

time it is not necessary that the boundaries would remain same

forever. The First Appellate Court categorically found that the

boundaries of the suit property mentioned in site plan (Ex.3)

tallies with boundaries of the plot mentioned in no objection letter

(Ex.5) issued by the defendant-Municipality, which confirms the

possession of the plaintiff and decreed the suit. The First Appellate

Court has categorically given reasons of not tallying the

boundaries mentioned in the ''Patta'' and site plan (Ex.3) that after

long lapse of time boundaries may change. The observation of the

First Appellate Court with regard to boundaries of the plot is a

finding of fact and cogent reasons have been given by the First

Appellate Court in this regard, therefore, the fifth substantial

question of law is answered accordingly.

In view of the discussions made above, the plaintiff has

proved his possession over the land in question from Samvat

2004-05 (say year 1947) as patta-holder, the plaintiff is in long

and peaceful enjoyment of land in question and the defendant-

appellants could not prove their title to the land in question,

therefore, the presumption under Section 110 of the Evidence Act

applies in this case. The defendant-appellants had to prove that

the plaintiff is not the owner but they did not produce any

document on record to rebut the presumption. The settled

possession gives a right to the plaintiff to protect his possession.

The defendant-appellants failed in proving their title over the

property so as to substantiate their entitlement to evict the

plaintiff. It would be appropriate to leave the question of title open

and to determine the suit on the basis of possession, protecting

the established possession of the plaintiff and restraining the

interference of the defendant-appellants therewith.

No fault has been found in the impugned judgment and

decree passed by the First Appellate Court. The appeal is devoid of

any substance.

Consequently, the appeal is dismissed. By way of abundant

caution, I clarify that the question of title with regard to the

property in dispute is kept open.