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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN BHANSALI, J.
Kesarimal - Applicants
Vs.
Bhikamchand & Ors. - Respondents
CIVIL SECOND APPEAL NO.24/2013
Decided On : 24.9.2014
Civil Procedure Code, 1908 - Section 96 Section 96 - Order IX , XLI Rule 13 , 27 - Sale deed - Decree - Suit for declaration - Permanent injunction - Suit property situated in Village was owned/purchased by them and they had patta of said land which was purchased by them in public auction having Patta No.26, File No.27/89-90 dated in name of which was purchased by plaintiffs on by way of registered sale deed after obtaining permission from Gram Panchayat for construction of house suit property was encircled by stone slabs and was ad measuring 50 x 26 - It was then contended that defendant No.5 claims ownership of Plot No.223 in colony and that a Plot No.224 owned by father of defendants No.5 & 6 is situated in same colony / plan - documents pertaining to Plot No.222 nor Plot No.224 indicates existence of any Plot No.223 and boundaries of defendant No.5 sold and patta does not match - Another patta pertaining to Plot No.221 was issued indicating Plots No.222 and 224 however there is no reference of Plot No.223 which indicates that patta owned by defendant No.5 does not pertain to said area - Defendant No.5 was harassing plaintiffs and have been approaching various courts distressing plaintiffs - Plaintiffs became aware about status indicated in plaint on getting information from report prepared by Development Officer - Appellant filed first appeal before Court of Additional District Judge - Alongwith appeal an application under Section 5 of Limitation Act was also filed seeking condonation of delay in filing the appeal - In appeal as well as application seeking condonation of delay almost all grounds raised pertained to ex-parte proceedings against appellant and challenge was given to manner of service and allegations regarding fraud etc in getting decree ex-parte were made - Few averments objections regarding the merit of decree passed by trial court were also raised – Held, Suit for ex-parte hearing by trial court and passing of ex-parte decree on account of his non-appearance still it is open for him to argue in first appeal under Section 96(2) CPC that from available material before trial court even if defendants written statement was not on record decree could not have been passed by trial court and nothing more - Submission as to fact regarding trial court entertaining suit despite pendency of writ petition is concerned issue raised by plaintiffs in their suit required leading of oral and documentary evidence could only be decided in a properly instituted civil suit - However pendency of writ petition by itself does not preclude trial court from proceeding with the suit - Appellant regarding appellate court giving hearing to respondents-plaintiffs without deciding their application under Order IX, Rule 7 CPC is concerned it is well settled that the respondent / defendant against whom appeal / suit is ordered to be proceeded ex-parte is entitled to take part in the appeal / suit at a later stage, but he cannot be relegated to position he could have occupied if he had appeared unless he makes an application under Rule 7 of Order IX - As in present case only submissions on appeal were to be heard by First Appellate Court even filing of application under Order IX, Rule 7 CPC was not required as such there is no substance in the plea raised by learned counsel - Appeal filed by appellant does not involve any substantial question of law and consequently same is dismissed
This second appeal under Section 100 CPC is directed against the judgment and decree dated 11.9.2012 passed by the Additional District Judge, Phalodi, District Jodhpur, whereby the appeal preferred by the appellant against the judgment and decree dated 23.12.2010 passed by the Civil Judge (Sr.Div.), Phalodi has been rejected and the decree passed by the trial court has been upheld.
The facts in brief may be noticed thus : plaintiffs – Bhikamchand and Ashok Kumar filed a suit for declaration and permanent injunction against the officials of the Gram Panchayat, Lohawat, Tehsil Phalodi; Zila Parishad, Jodhpur; Ramchandra and the present appellant Kesarimal, inter-alia, with the averments that the suit property situated in Chhipon Ka Bas, Vishnawas, Village Lohawat was owned/purchased by them and they had patta of the said land, which was purchased by them in public auction having Patta No.26, File No.27/89-90 dated 28.12.1990 in the name of Bhojraj Soni, which was purchased by the plaintiffs on 6.11.1992 by way of registered sale deed from said Bhojraj; on 19.1.1994, after obtaining permission from Gram Panchayat for construction of house, the suit property was encircled by stone slabs and was ad measuring 50' x 26'. It was then contended that defendant No.5 Ramchandra claims ownership of the Plot No.223 in the colony and that a Plot No.224 owned by father of defendants No.5 & 6 is situated in the same colony / plan. The patta in the name of defendant No.5 has been issued under File No.3/56-57 dated 26.3.1957 and Patta Bahi No.41, Sale deed dated 14.9.1958 the plot has been indicated as ad measuring 50' x 50' and does not indicate any road or lane on any side, no plot number is indicated in the sale deed / patta.
On the same day, another patta dated 12.6.1957 being Patta No.2 in the name of Babu Lal, Pukhraj, Ashkaran and Deepadan was issued being Plot No.222, however, neither the documents pertaining to Plot No.222 nor Plot No.224 indicates existence of any Plot No.223 and the boundaries of defendant No.5 sold and patta does not match. Another patta pertaining to Plot No.221 was issued indicating Plots No.222 and 224, however, there is no reference of Plot No.223 which indicates that the patta owned by defendant No.5 does not pertain to the said area. The defendant No.5 was harassing the plaintiffs and have been approaching various courts distressing the plaintiffs. The plaintiffs became aware about the status indicated in the plaint on getting information from the report prepared by the Development Officer defendant No.3 dated 18.7.2007, wherein it was clear that the defendants No.5 & 6 were wrongly harassing the plaintiffs; their plots were near Shyamji's temple, which has been trespassed by other persons.
It was further indicated that the defendant No.6 has filed a Writ Petition No.1513/2008 before the High Court, wherein the plaintiffs became aware of the report and therefore, notice under Section 109 of the Rajasthan Panchayati Raj Act, 1994 was issued, which was received by the defendants No.1 to 4. However, still the defendants No.5 & 6 were bent upon evicting the plaintiffs.
Based on the above averments, the plaintiffs claimed permanent injunction against the defendant seeking restraint against them from interfering in the possession either themselves or through anybody else.
While service on defendant No.6 – appellant was effected by pasting (affixation) and was treated as complete. The defendant No.5 despite service did not appear.
A written statement was filed by the defendants No.1 & 2, wherein it was indicated that the land as per the patta was not available at the plot, though patta has been issued as per town planner, however, map of town planner was not available with the Panchayat. Plots No.223 & 224 are situated at Nayapura but the boundaries as per patta were not correct and land on the spot as per boundaries was not available. The defendants have not conspired with any one and are not dispossessing a
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