Smt. Sakudi @APPELLANT@Hash Sarpanch, Gram Panchayat- Ahore

The present appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-plaintiff, laying challenge to the judgment

and decree dated 26.10.2016 passed by learned District Judge, Jalore (hereinafter referred to as “Appellate Courtâ€), whereby his appeal against

the judgment and decree dated 08.09.2011 passed by learned Additional Civil Judge (Sr. Div.) No.1, Jalore (hereinafter referred to as ‘the trial

Court’) in Civil Original Suit No.28/2005 (52/2004) has been rejected.

Succinctly stated the facts, relevant for deciding the present appeal are that the appellant â€" plaintiff filed a suit for mandatory injunction with the

assertion that a plot, ad-measuring 165x86ft., total area 1575 sq. yards, situated at Khara Road, Hanuman Colony of Ahore, Distt. Jalore, has been in

his peaceful possession, wherein the appellant had constructed a hut ‘Bada’ for keeping cattle and other facilities therein. The plaintiff

approached the trial Court, on receiving a notice dated 15.10.2004 issued by the Gram-Panchayat Hanumangarh, vide which he was asked to remove

his encroachment, failing which the same was threatened to be removed in accordance with provisions under Rajasthan Panchayat Raj Act.

In response to the suit, so filed by the plaintiff, the respondent Gram-Panchayat, Ahore filed a written statement and contended that the plaintiff

belonged to wandering Community (Ghumakkad), who does not stay at one place; hence his assertion that the land in question is under his possession

for last 30-35 years is factually incorrect, while maintaining that since the plaintiff had not issued requisite notice under Section 109 of the Panchayat

Raj Act, the suit filed by the plaintiff is liable to be rejected.

On the basis of the pleadings of the rival parties, the Trial Court had framed the following issues:-

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The Trial Court decided the issues No.1 & 2 against the plaintiff and has held that the land in question belongs to GramPanchayat, Ahore and that the

plaintiff is not having possession over the land for past 40 years as claimed. Learned Trial Court has given a finding that the plaintiff has failed to bring

any documentary evidence on record evincing his possession and that the voter list of 1995 and electricity connection are not sufficient to prove his

possession on the said land; as requisite particulars of the land or area have not been given on these documents.

While deciding the issue No.2, the Trial Court had given a categorical finding that the land belongs to Gram-Panchayat. In wake of these findings, the

Trial Court rejected the suit filed by the plaintiff.

In an appeal filed there-against, the Appellate Court dealt with the evidence available on record and aptly considered the arguments advanced by the

appellant while affirming the order of the Trial Court and rejected the appeal vide order dated 26.10.2016.

Mr. R.J. Punia, learned counsel appearing for the appellant contended that upon perusal of the voter-list of 1995 (Exhibit â€" 4), it is clear that the

plaintiff has been living on the subject land at least since 25 years. He contended that in any event the appellant is having a settled and peaceful

possession over the land and he cannot be removed by the respondent â€" GramPanchayat. Mr. Punia, cited judgment of Hon’ble the Supreme

Court in case of Rame Gowda (Dead) by LRs. Vs. M. Varadappa Naidu (Dead) by Lrs. & Anr., reported in (2004) 1 SCC 769 and inviting

attention of the Court towards para No.8, he contended that a person having settled possession over the land cannot be evicted. Said para No.8 of the

judgment relied upon by Mr. Punia, is reproduced hereunder :-

“8. It is thus clear that so far as the India law is concerned, the person in peaceful possession is entitled to retain his possession and in order to

protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land

may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property

belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser

or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from

using force or taking the law in his own hand, and also by resorting him in possession even from the rightful owner (of course subject to the law of

limitation), if the latter has dispossessed the prior possessor by use of force. 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. The owner of any property may prevent even

by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or

recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law.

In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. “

Mr. Punia, further cited the judgment of this Court rendered in case of Kanti Lal Vs. Smt. Shanti Devi & Ors., reported in 1998 (3) WLC (Raj.) and

in light of observation made in para No.27, he submitted that the appellant â€" plaintiff cannot be evicted from the premises in question, as he is having

settled possession over the contentious piece of land. Para 27 of the said judgment is reproduced hereinfra:-

“27. In my humble opinion, the concept of English Law to the effect that possession is good title against all except the true owner and authorised a

possessor to file a suit for ejectment against violent invasion of possession got statutory recognition under Section 110 of the Indian Evidence Act

raising presumption about ownership in favour of possessor. The proposition of law on these two points arose before the Privy Council in case of

Perry v. Clissold and others, reported in 1907 AC 73, where their Lordships of Privy Council summed up proposition of law, which reads thus-

“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of

ownership has a perfectly good title agaisnt all the world but the rightful owner. And if the rightful owner does not come forward and asset this title by

process of law within the period prescribed by the provisions of the Statue of Limitations application to the case his right is for ever extinguished and

the possessor owner acquires an absolute title.â€​

Mr. R.K. Rathi, learned counsel appearing for the respondent, per contra, argued that the appellant is a rank trespasser and has encroached over the

huge government land. He further submitted that the appellant, belongs to Gypsi Community, who instead of staying at one place, keeps on wandering

from one village to another; hence it cannot be believed that the plaintiff is having possession over the land as claimed. He submitted that as the

plaintiff had made encroachment over the land, Gram-Panchayat has taken legal action against him and issued a notice dated 15.01.2004

(Exhibitâ€"3), ensuring the removal of the encroachment.

Mr. Rathi, further submitted that both the Courts below have concurrently held that the plaintiff is having no settled possession over the land and the

land in question belongs to GramPanchayat Ahore; and that the appeal in question does not involve any substantial question of law, requiring

consideration of this Court.

I have heard learned counsels for the parties and perused the material available on record.

As far as, the voter-list of 1995 relied upon Mr. Punia, is concerned, a look thereupon reveals that the same does not even have the address of the

appellant and the same is a proof that the plaintiff is a voter as per the elect-roll of Ahore. The oral evidence in support of his assertion that he is

having possession over the land for more than 40 years is of little avail to the appellant.

In case like this, when the case of the plaintiff is based on oral evidence, the Court is also required to consider the oral evidence and the documentary

evidence led by the defendant â€" Gram-Panchayat. On behalf of the defendant, Sarpanch, Gram Panchayat, DW-1 came in the witness box and

deposed that the land in question was earlier Gochar/posture land, which has subsequently been converted to Abadi land; while maintaining that the

plaintiff is not having possession for 40 years. It was also asserted by DW-1 that on earlier occasion, when the plaintiff tried to make

encroachment, he was ejected.

In light of the oral evidence and assertion of the GramPanchayat that the encroachment of the appellant was very recent one and the land belongs to

the defendant â€" GramPanchayat, there is nothing on record to show that the appellant is having possession of more than 40 years.

Even if, for a moment, it is assumed that the plaintiff’s encroachment over this land is since 1995, the notice dated 10.01.2004 issued by the Gram-

Panchayat was well within the limitation of 12 years, which is available even to a common man, whereas the land being Government land and Gram-

Panchayat being an arm of the State Government, enjoys 30 years period of limitation for taking any action against a tresspasser.

The judgments cited by Mr. Punia, are of hardly any help to him, inasmuch as in judgment of Rame Gowda (Dead) by LRs (supra), Hon’ble the

Supreme Court has simply held that the true owner cannot take recourse to force or take law in his own hands. This judgment cannot be read to mean

that Hon’ble the Supreme Court has protected possession of even trespasser from the true owner, if the true owner takes resort to appropriate

legal proceedings. In other words, the protection given by Hon’ble Supreme Court to the trespasser or a person having settled possession over

the land is only with a view to save them from illegal use of force; and not against the lawful action taken by the true owner.

In the present case, the Gram-Panchayat had issued a notice to the appellant â€" plaintiff for removing his possession, it was informed that failing

which it would take lawful means, for evicting the plaintiff. Hence, the judgments of Hon’ble Supreme Court, cited by Mr. Punia, is not applicable

in the facts of the present case, as the defendant has taken a lawful action for eviction.

Similarly, the judgment of this Court, rendered in Khanti Lal (supra) is also not of any help to the plaintiff as it has been clearly held that the settled

possession cannot be removed and if the rightful owner does not come forward and assert his title by process of law, within the period prescribed by

the provisions of the statute of limitation, such owner cannot use force for ejectment.

In the present case, since the Gram-Panchayat had kickstarted the proceedings for evicting the plaintiff well within the period of limitation, no fault

can be found in their action. The plaintiff cannot be permitted to encroach upon such a huge public land and then seek protection from the Court of

law, taking plea of settled possession.

In view of the discussion aforesaid, this Court concurs with the findings recorded by the Courts below and does not find any question of law, much

less substantial question of law, requiring determination by this Court.

The appeal therefore fails and is dismissed accordingly. No order as to costs.

(S.B. Civil Second Appeal No. 52 / 2017)

The facts of the present case are almost identical to the facts of S.B. Civil Second Appeal No.271/2016 titled as “Pratapa vs. Gram Panchayat

Ahore†decided today. The only minor difference in the facts is that the appellant herein had produced evidence of her possession over the land in

question since 1982, whereas in the aforesaid Second Appeal No.271/2016, the appellant had produced evidence of his possession (voter list of

1995). Learned counsels for the parties are ad idem that except the minor difference as indicated earlier, there is no substantial difference in the

facts and question(s) involved in these two cases.

In the considered opinion of this Court, even the fact that the plaintiff was in possession since 1982 would hardly make any difference as the impugned

notice of eviction came to be issued on 15.01.2004, well within period of limitation, available to the defendant â€" Gram Panchayat.

Following the judgment of even date passed in Civil Second Appeal No.271/2016 titled as “Pratapa Vs. Gram Panchayat, Ahoreâ€, this appeal is

also dismissed.

No order as to costs.