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2005 Supreme(Raj) 2780
High Court Of Rajasthan
Judgename : PRAKASH TATIA
MAHAVEER PRASAD - Appellant
Versus
SATYA NARAYAN - Respondent
C. S. A. 67 Of 1992
Decided On : 12/06/2005
R.K.SINGHAL, Rekha Borana
The importance of producing key evidence, such as the patta, in property disputes and the court's discretion in allowing additional evidence under Order 41, Rule 27, CPC.
Headnote:
Patta - Property Dispute - Samwat Year 1939 - [Order 41, Rule 27, CPC] - The court discussed the importance of the patta issued in the Samwat Year 1939 and the plaintiff's failure to produce it in the present suit. The court also considered the application under Order 41, Rule 27, CPC seeking permission to produce additional evidence and dismissed it based on the grounds of delay and lack of bona fide reasons.
Fact of the Case:
The plaintiffs filed a suit for possession against the defendant, claiming that the defendant encroached upon their land. The defendant denied the allegations and stated that the property belonged to his wife. The trial court dismissed the suit, and the first appeal was also dismissed.
Finding of the Court:
The court found that the plaintiff failed to prove ownership of the property and that the defendant and his wife were in possession of the property for the last 50 years. The court also dismissed the plaintiff's application under Order 41, Rule 27, CPC seeking permission to produce additional evidence.
Issues: The main issue was the ownership of the disputed property and the plaintiff's failure to produce the patta issued in the Samwat Year 1939.
Ratio Decidendi: The court held that the plaintiff's failure to produce the patta and the delayed application to produce additional evidence were grounds for dismissing the suit and appeal.
Final Decision: The court dismissed the appeal, stating that no substantial question of law was involved.
( 1 ) HEARD learned counsel for the parties.
( 2 ) IT will be worthwhile to mention here a few facts about the case. It appears from the plaint allegations that the plaintiffs/appellants, on the basis of patta in their favour which was issued in the Samwat year 1939, filed a suit for injunction against Pokar Mal, ami Chand, Shyam Lal, Mangi Lal and Municipal Board, Nohar which was decreed by the trial Court on 1-4-1977 restraining the municipal Board, Nohar from allotting any land out of pattasud land of the plaintiffs. However, despite this decree, according to the plaintiffs, said Pokar Mal, Ami Chand, shyam Lal and Mangi Lal encroached upon part of the plaintiffs land and according to the plaintiffs, for this, the Municipal Board, nohar helped those persons in encroaching upon the plaintiffs land, therefore, the plaintiffs submitted execution petition against the above mentioned persons. The present defendant Satya Narayan, who was not party in the earlier suit, also encroached upon 300 square yards land of the plaintiffs, therefore, the plaintiffs filed the suit for possession against Satya Narayan because of the fact that Satya Narayan was not party in the earlier suit and there was no decree against him, therefore, the plaintiffs could not have sought any relief against the present defendant Satya Narayan without obtaining decree for possession against the defendant.
( 3 ) IT will be further worthwhile to mention here that Pokar Mai, Ami Chand, Shyam lal and Mangi Lal and Municipal Board are not party in the present suit for which, according to the plaintiff, since legal proceedings could have been initiated by launching execution petition to execute the decree which the plaintiff obtained against those persons, therefore, they were not necessary parties rather they could not have been impleaded party in the present suit.
( 4 ) THE defendant submitted written statement and denied all allegations of the plaintiff and stated that in fact, the plaintiff obtained a collusive decree which is apparently clear from the fact that one of the defendant ami Chand died two years before the date of decree and one of the defendant Mangi lal sold his land to Smt. Durga Devi much before filing of the suit by the plaintiff in the year 1974. The defendant also submitted that the plaintiff did not disclose the measurement of his property and the land which the plaintiff is claiming to be in possession of other persons, therefore, there arises no question of the plaintiff being in possession of any part of the land. The defendant also submitted that even the execution petition filed by the plaintiff has already been dismissed by the executing Court. The defendant took the plea that the plot in question belongs to his wife Smt. Saraswati Devi as it was gifted to her by her maternal uncle. Smt. Saraswati Devi or her predecessor in title have not been impleaded as party in the present suit. Therefore, no decree can be passed.
( 5 ) THE trial Court framed the issues and the plaintiff produced his witnesses and the defendant produced his witnesses.
( 6 ) THE trial Court after considering the evidence held that the plaintiff failed to prove the plot in question as his ownership plot. The trial Court also decided that the suit property was in possession of the defendant and his wife since last 50 years. Ultimately, after deciding the issues against the plaintiff, the suit was dismissed by the trial Court vide judgment and decree dated 19-9-1987, against which the plaintiff preferred first appeal that too was dismissed on 29-1-1992. Hence, this second appeal.
( 7 ) ACCORDING to learned counsel for the appellants, the two Courts below dismissed the suit of the plaintiff simply because of the fact that the plaintiff did not produce the patta which was issued in the plaintiffs favour in the Samwat Year 1939. It is further submitted that it is not in dispute that the said patta was produced in the earlier suit which was filed against Poka
