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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
SUDESH BANSAL, J.
Shanti Lal Agarwal (Since Deceased) – Appellant
Versus
Municipal Board, Bari through Executive Officer – Respondent
S.B. Civil Second Appeal No. 170 of 1990
Decided On : 08-07-2022
Code of Civil Procedure, 1908 - Section 100, Order VI Rule 17 - Specific Relief Act, 1963 - Section 5, 6 - Municipality Act - Section 285 - Land - Suit for Possession - Whether in facts and circumstances particularly when municipality has not come with a case that it came into existence prior to coming into force of Act of 1959, respondents can challenge allotment made by Tehsil and subsequent transfers effected under said allotment - Whether plaintiff purchased land of subject plot from Ram Dayal through sale deed - Whether Shri Ram Dayal was authorized to sale disputed plot - Whether plaintiff got actual possession of disputed plot - Whether suit is beyond limitation - Whether defendants entered into possession over disputed plot forcefully and unauthorizedly, as such plaintiff is entitled to remove their possession and for means profits, if yes at which rate – Held, It may be noticed here that both courts have recorded a fact finding that even if, it is assumed that subject land was allotted to vendor for purpose of cultivation and vendor cultivated crop but thereafter there is no substantive evidence to show continuity of possession of Ram Dayal over subject plot - Thus, claim of plaintiff to get possession of subject plot from Ram Dayal and he was in possession of plot prior to institution of present suit is not believable and both courts have already examined evidence on record, while recording fact finding in this regard against appellant-plaintiff - At stage of second appeal, fact findings unless and until are not found to be perverse or suffer from misreading/non-reading of evidence cannot be disturbed - Therefore, this question of law is of no importance in present appeal and does not arise at all hence answered accordingly - Hon’ble Supreme Court in case of Umerkhan vs. Bismillabi, , has propounded that if a second appeal is admitted on substantial questions of law, while hearing second appeal finally, can re-frame substantial question of law or can frame substantial question of law afresh or even can hold that no substantial question of law involved, but High Court cannot exercise its jurisdiction of Section 100 CPC without formulating substantial question of law - Appeal dismissed.
JUDGMENT :
SUDESH BANSAL, J.
1. This second appeal under Section 100 of Code of Civil Procedure (CPC) has been directed against the judgment and decree dated 01.08.1990 passed in Civil First Appeal No. 03/1988 by the Court of Additional District and Sessions Judge, Dholpur affirming the judgment and decree dated 24.04.1986 passed in Civil Suit No. 04/1980 by the Court of Munsif/Magistrate, Bari whereby and whereunder the civil suit for possession purportedly instituted invoking the provisions of Section 6 of the Specific Relief Act, 1963 by and on behalf of appellant-plaintiff (now deceased and represented through his legal representatives) was dismissed on merits.
2. On perusal of the previous order-sheets of the file, it reveals that the Co-ordinate Bench of this Court vide order dated 09.10.1991 admitted the appeal for hearing and framed following substantial question of law:
“Whether in the facts and circumstances particularly when the municipality has not come with a case that it came into existence prior to the coming into force of the Act of 1959, the respondents can challenge the allotment made by the Tehsil on 25.06.1968 and subsequent transfers effected under the said allotment?”
3. Later on, another Co-ordinate Bench of this Court, vide order dated 02.09.1996 framed the following substantial question of law for consideration in the second appeal:
^^1- vk;k fo}ku vij ftyk U;k;k/kh'k dks ;g QkbfMax fd fookfnr tehu uxjikfydk esa fufgr Fkh] fcuk fdlh lk{; ds vk/kkfjr gSA
2- vk;k v/khuLFk U;k;ky;ksa us Áfroknhx.k ds fo:} fookfnr Hkwfe ds laca/k esa nLrkost is'k ugha djus ds dkj.k Áfrdwy vo/kkj.kk cukus esa dkuwuh Hkwy dh gSA
3- vk;k Áfroknhx.k dks ;g vf/kdkj gS fd os fcuk dkuwuh ÁfØ;k viuk;s oknh dks ;k mlds iwoZt jken;ky dks fookfnr Hkwfe ls csn[ky dj ldrs gSA**
4. It appears from the record that during the course of second appeal, appellant moved an application dated 06.04.1994 under Order VI Rule 17 CPC seeking amendment in the plaint, by adding prayer of restoration of possession of suit property.
5. Earlier the Co-ordinate Bench of this Court heard both parties on application for amendment in the plaint as well as appeal and finally decided this second appeal vide judgment dated 17.09.1996 whereby and whereunder the application under Order VI Rule 17 CPC was allowed and simultaneously, appeal was also allowed. The appellant-plaintiff was held owner of the plot in question and suit for possession was decreed, and both impugned judgments and decree were set aside.
6. Against the judgment dated 17.09.1996, respondent-Municipal Board preferred special leave petition before the Hon’ble Supreme Court being Civil Appeal No. 6955/1997. The Hon’ble Supreme Court vide order dated 04.09.2003 set aside the judgment and decree dated 17.09.1996 and remanded the matter back to this Court for fresh disposal in accordance with law after consideration whether the substantial question of law or questions of law arise for consideration and then dispose of the appeal on merits.
7. In order to deal with the substantial questions of law as framed by the Co-ordinate Benches of this Court, mentioned hereinabove for consideration in the present second appeal, it is necessary to look into the relevant facts of the present case.
8. As per the record of the present appeal, the necessary and relevant facts culled out from the material on record, may be recapitulated as under:
8.1 The suit property is a plot measuring 1 biswa (about 88 square yards) situated in town Bari district, Dholpur and presently, 21 shops have been constructed thereupon by the Municipal Board, Bari.
8.2 Appellant-plaintiff-Shanti Lal Agarwal (now deceased and represented through legal representatives) instituted civil suit on 05.01.1980 alleging inter-alia that a day before it means on 04.01.1980, the respondent-defendant-Municipal Board, Bari and its employees have removed his possession from the plot in question by taking the law in their own hands, hence the suit for possession was
SupremeToday
Possession, not ownership, is the basis for relief under Section 6 of the Specific Relief Act, and the court cannot adjudicate title issues in such proceedings.
A valid land allotment must be canceled before a subsequent allotment can be deemed lawful, reaffirming the plaintiffs' ownership rights and possession under the Tripura Land Revenue and Land Reforms....
A plaintiff not in possession must seek recovery of possession to maintain a suit for injunction; failure renders the suit non-maintainable.
(1) Recovery of possession – Limitation – Suit based on title where plea of adverse possession had not been raised could not be barred by limitation on ground that it was filed after more than 12 yea....
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