Rajendra Kumar and Others vs Nagar Palika, Chittorgarh and Another

Kailash Chandra Joshi

This civil second appeal u/s 100 of the C.P.C. has been preferred by the appellant-plaintiffs being aggrieved by the judgment and decree dated 15.05.2009 passed by learned District Judge, Chittorgarh in Civil Appeal No. 5/2009, whereby the learned lower appellate court dismissed the appeal filed by the appellant-plaintiffs and affirmed the judgment and decree dated 15.12.2008 passed by learned Additional Civil Judge (Senior Division) No. 2, Chittorgarh in Civil Original Case No. 6/2006, whereby the learned trial court dismissed the suit for granting mandatory injunction filed by the appellant-plaintiffs. The brief facts giving rise to the present appeal are that the appellant-plaintiffs filed a suit for mandatory injunction and direction to the respondent-defendants to sell the strip of land situated in the western side of the house of the plaintiffs marked as ABCD in the ''Najri Naksha'' to the plaintiffs. Prior to filing of the suit, the father of the plaintiffs submitted an application before the respondent-defendants for sale of the land in question and thereafter on 06.04.1999, the respondent-defendants invited objection to the sale of the land. The strip of land in question is situated at a distance of about 12 feet from the road towards the southern side of the road and adjoining to this strip of land, a public lavatory is in existence. The respondents shown their inability to sale the land in question as the said land is part of the road. The father of the plaintiffs also requested to review to the order, but the respondent-defendants refused the prayer and rejected the application. Thereafter the appellant-plaintiffs also submitted a representation to sell the land in question to them, but no action was taken on that representation, therefore, they filed the civil suit for mandatory injunction.

The respondent-defendants filed written statement and denied the averments made in the plaint. It was stated that the land in question cannot be allotted or sold because it is a part of the road.

On the basis of the pleadings of the parties, the learned trial court framed as many as 3 issues and recorded the evidence of the parties. The learned trial court decided the issue No. 1 and 3 against the appellant-plaintiffs and gave the finding that the respondent-defendants have not recognized the land in question as a strip of land and the suit is barred by limitation. Thus, the learned trial court dismissed the suit vide the impugned judgment and decree dated 15.12.2008.

Being aggrieved by the judgment and decree passed by the learned trial court, the appellant-plaintiffs filed an appeal before the learned lower appellate court. After hearing the parties, the learned lower appellate court dismissed the appeal of the appellant-plaintiffs vide the impugned judgment and decree dated 15.05.2009 and affirmed the judgment and decree passed by the learned trial court.

Hence, being aggrieved by the impugned judgments and decrees passed by the learned courts below, the appellant-plaintiffs have preferred this civil second appeal.

The Learned Counsel for the appellant-plaintiffs contended that under Rule 23 of Disposal of Urban Land Rules, the strip of land has been defined, according to which, the strip of land means a piece of land adjoining and existing plot which cannot put to independent house and which shall in no case exceed 100 square yards in area. Under sub Rule 1 of Rule 23 there is a procedure to sale of the land which provides that small strips of land which are not fit to be disposed of as plots shall be sold to the owners of the adjoining plots at the rate of double the reserve price, such strips of land shall be disposed of on a outright sale if the adjoining property is freehold and leased out and further the adjoining property owner has only the lease hold rights. In the instant case also, it is not disputed that the area of the land in question is less than 100 square yards and it is clear from the Commissioner''s report (Ex. P.3) that the land in question is not a part of the road, but it is adjoining to the house of the plaintiffs. It is also submitted that adjoining to the land in question, there is a latrine in existence, therefore, the learned courts below were not justified in holding that the land in dispute is a part of the road. It is significant that D.W.1 Prem Chand, who is the Executive Officer of the Nagar Palika, stated that the land in dispute is less than the area necessary for strip of land but the respondent-defendants simply dismissed the application of the plaintiffs on the ground that the land in question is part of the road, which is contrary to the position of the site. It is also significant that there is no access of the public on the land in question and there is no way for the heavy vehicles and only light motor vehicles are running easily on the road having width of 12 feet. It is further contended that the learned courts below have committed error of law and facts in deciding the issue No. 3 against the plaintiffs. The suit is not time barred and the provisions of Article 113 of the Limitation Act are not applicable in the case as the cause of action is continuous. It is further contended that land in question is till vacant and no person has raised objection to the sale of the land to the plaintiffs, therefore, both the courts below have committed error in deciding the issue No. 3 against the plaintiffs while holding that the suit is beyond limitation. It is further contended that the learned courts below have not appreciated the evidence properly and misread the evidence, therefore, the findings arrived at by the learned courts below on the issue No. 1 and 3 are liable to be set aside. It is further contended that the learned courts below while deciding the issue of relief have erred in recording the finding that the plaintiffs have also an alternate remedy to challenge the order passed by the respondents on 25.07.2000, but they have not availed the remedy provided u/s 300 of the Municipalities Act. It is contended that the learned courts below have wrongly recorded the finding and they have not considered the fact that the remedy available u/s 300 is not the proper and efficacious remedy and the revisional court cannot enter into the findings of facts, therefore, the learned courts below were not justified in recording such findings.

The Learned Counsel for the appellant-plaintiffs has proposed the following substantial questions of law in the memo of appeal :-

(i) Whether the availability of remedy of revision is an efficacious remedy when under revisional jurisdiction Court cannot enter into facts ?

(ii) Whether the Courts below were justified in holding that the suit is time barred though cause of action was a continuous one ?

(iii) Whether the land in question, which is less than 100 square yards is not a strip of land within the meaning of Rule 23 of the Rules and was not available for the sale ?

(iv) Whether the learned Courts below have committed error in holding that the land in question is part of way in absence of any documentary evidence and when the defendants have not proved this fact ?

(v) Whether the Courts below have committed error in misreading the evidence as well as Commissioner''s report which has created adverse effect on the appellants ?

I have considered the contentions raised by the Learned Counsel for the appellant-plaintiffs and perused the impugned judgments passed by the courts below.

The main question involved in the suit was regarding the fact whether the land situated in the west side of the house of the plaintiffs measuring 9 1/2 ft. x 8 ft. x 16 ft. x 15 ft. comes within the definition of strip of land. The learned trial court decided this issue against the appellant-plaintiffs and dismissed the suit solely on the basis of the decision of the issue No. 1 against the appellant-plaintiffs. The learned trial court held that the Municipality Chittorgarh has never considered this land in question as strip of land, although the area of the said land is below 100 square yards, but simply on the basis of the same it cannot be said that the land in question comes within the purview of the strip of land. The learned trial court further recorded its finding that neither the Collector nor the Municipality Chittorgarh recorded the land in question as strip of land and in the absence of any such decision on the part of the Municipality or the Collector, the plaintiffs have no right to get the land in question allotted to them as strip of land. The learned first appellate court also held the simply if there is a land situated adjoining to the house of any person and the area of the same is below 100 square yards, it cannot be said to be strip of land and there should be specific consideration by the Municipality or the concerned authority that the land comes within the definition of strip of land. The findings of the learned trial court as well as the learned first appellate court are based on the appreciation of the evidence and after considering the relevant issues involved in the suit. In my considered view, the findings of the learned trial court as well as the learned first appellate court do not require any interference at the second appellate stage and the same deserve to be affirmed and no substantial question of law as proposed by the Learned Counsel for the appellant-plaintiffs is involved. The present appeal filed by the appellant-plaintiffs is devoid of any merit and deserves to be dismissed.

Consequently, this civil second appeal is dismissed and the impugned judgments and decrees passed by the courts below are affirmed. No order as to costs. A copy of this judgment be sent to the respondents.