2013 Supreme(Raj) 1241
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mohammad Rafiq, J.
Sagar Mal - Appellant
Versus
Mahavir Prasad Bal Chand Gadia Charitable Trust, Surat & Ors. - Respondent
S.B. Civil Second Appeal No. 443 of 2008.
Decided On : 8-05-2013
Advocates:
For the Appellant:Ajay Gupta, Advocate.
For the Respondents:B.L. Agarwal, Advocate.
A suit for injunction is maintainable before the civil court even if there is an alternate remedy available, if the patta issued by the Gram Panchayat is illegal.
Headnote:
SPECIFIC RELIEF ACT - SUIT FOR INJUNCTION - ORDER 8, RULE 1 CPC - DELAY IN FILING WRITTEN STATEMENT - JURISDICTION OF CIVIL COURT - PATTAS ISSUED BY GRAM PANCHAYAT - SUMMARY
Fact of the Case:
Plaintiff filed a suit for permanent and mandatory injunction against the defendant, alleging that the defendant was adamant to demolish the construction of a rest house belonging to the plaintiff. The plaintiff had purchased the land and obtained permission from the Gram Panchayat to construct the rest house. The defendant, son of the ex-Sarpanch, submitted an application for a lease deed for a portion of the land, which was recommended by the Gram Panchayat. The plaintiff contended that the defendant was trying to encroach upon his land.
Finding of the Court:
The court found that the plaintiff had purchased the disputed land in 1995 and had obtained permission from the Gram Panchayat to construct the rest house. The court also found that the defendant had filed the written statement with a delay of two years and three months without any justification. The court further found that the patta issued by the Gram Panchayat to the defendant was illegal as it was a private land of the plaintiff.
Issues: 1. Whether the trial court erred in not taking the written statement of the defendant on record? 2. Whether the suit was maintainable before the civil court? 3. Whether the patta issued by the Gram Panchayat to the defendant was valid?
Ratio Decidendi: 1. The court held that the trial court was justified in not taking the written statement of the defendant on record as it was filed with a delay of two years and three months without any justification. 2. The court held that the suit was maintainable before the civil court as the patta issued by the Gram Panchayat to the defendant was illegal. 3. The court held that the patta issued by the Gram Panchayat to the defendant was illegal as it was a private land of the plaintiff.
Final Decision: The court dismissed the appeal and upheld the judgment and decree of the trial court.
JUDGMENT
1. - This appeal is directed against the judgement of the Additional District Judge No.2, Sikar dated 23.10.2008 who while dismissing the appeal filed by the appellant maintained the judgement and decree passed by the Civil Judge (Sr. Division), Dantaramgarh, Sikar dated 26.10.2005. The plaintiff-respondent filed a suit, which was decreed, before the trial court for permanent injunction as well as mandatory injunction inter alia with the plea that there is a rest house at Khatu Shyam Ji belonging to the plaintiff which is surrounded by boundary wall. The aforesaid land measuring 1738 sq. yards was purchased by the plaintiff from one Shri Ram Chandra S/o Shri Chouth Mal, by caste Dhanka, resident of Village Khatu Shyam Ji on 14.7.1995 for sale consideration of Rs. 3,16,500. The construction was made after taking permission from the Gram Panchayat. The Gram Panchayat issued the permission for construction on charging the fee of Rs. 17,390. The defendant no.1, son of ex-Sarpanch taking benefit of his position, is adamant to demolish the construction. It was pleaded that in front of the rest house, after road boundary, there is a Damar road. The defendant-appellant submitted an application for lease deed in the Panchayat on 10.8.1999 for land measuring 25'x22'. On the aforesaid application, two Panchas of the Gram Panchayat visited the spot and recommended for lease deed of 33.5 sq. yards of land, which land actually comes within the boundary of the plaintiff. The defendant on that basis is adamant to demolish the wall of the plaintiff.
2. The defendant-appellant filed a written statement on 17.10.2003 denying the facts in the suit. He disputed the map filed by the plaintiff with the plaint. It was contended that the land purchased by the petitioner was different and the map annexed with the suit is of different land. The land shown in the map is not in the possession of the plaintiff. The land of the defendant has wrongly been added in the map. The land of the defendant is surrounded by boundary wall. There is a lot of construction material over it. Plaintiff with bad intention wants to encroach upon the land of defendant, which is being used by him for many years. The petitioner merely submitted an application before the Gram Panchayat for issuance of patta of his ancestral land. After making due compliance of the provisions, the Gram Panchayat issued patta. Anyone who is aggrieved of the issuance of patta can approach the appellate authority under the Panchayati Raj Act and not the civil court. The learned trial court decreed the suit where against the first appeal was preferred by the appellant, which too was dismissed.
3. Shri Ajay Gupta, learned counsel for the appellant has submitted that the judgement and decree passed by both the courts below are illegal and without jurisdiction. The trial court had arbitrarily closed the opportunity of filing written statement by order dated 21.11.2003 and did not take the written statement filed by the appellant on record, holding it to be time barred, whereas the same were on record. The trial court further did not frame any issue and only on the basis of ex-parte evidence of PW-1 Anil Kumar, who is not a plaintiff, decreed the suit. Notice under Section 80 CPC is not served upon either before the District Collector or Development Officer, who are party-defendant in the suit. It is a mandatory requirement under Section 109 of Panchyati Raj Act also. The Gram Panchayat was not impleaded as party, which is a necessary party. It was argued that the date fixed for written statement was 18.12.2002 and thereafter the date was fixed for filing reply to the application under Order 7, Rule 11 CPC. The defendant filed written statement on 17.10.2003 and till then the service of the defendant no.3 was not complete, but even then without closing the opportunity of filing reply, the learned trial court presumed that the written statement is time barred and did not take the same on record. Th
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