JUDGMENT :

Mr. Mahendar Kumar Goyal, J. - This civil second appeal is preferred by the appellant/defendant (for brevity, "defendant") against the judgment and decree dated 19.02.2011 passed by the learned Additional District Judge (Fast Track), Hindaun City (for brevity, "the learned Appellate Court") in Civil Regular First Appeal No.66/2010 whereby, while dismissing the appeal, the judgment dated 26.07.2007 passed by the learned Additional Civil Judge (J.D.) No.1, Hindaun City (for brevity, "the learned trial Court") decreeing the suit No.28/2004 (16/99) filed by the respondent/plaintiff (for brevity, "the plaintiff") for permanent injunction, has been upheld.

2. The relevant facts in brief are that the plaintiff filed a suit for permanent injunction against the defendant stating therein that he was under the ownership and possession of the subject suit shop as described in Para No.1 of the plaint. It was alleged that the defendant wanted to demolish the shop reckoning it as a part of public toilet. Thus, the decree as aforesaid was prayed for.

3. The defendants in its written statement submitted that the subject shop was constructed by the plaintiff on the land of public toilet only recently and was disentitled for the decree prayed for.

4. On the basis of pleading of the parties, learned trial Court framed three issues including relief.

5. After recording evidence of the respective parties, the learned trial Court decreed the suit vide its judgment and decree dated 26.07.2007 holding the plaintiff under the ownership and possession of the subject shop. The civil first appeal preferred there against by the defendant has been dismissed by the learned Appellate Court vide its judgment and decree dated 19.02.2011.

6. Assailing the judgment and decree dated 19.02.2011, only contention advanced by the learned counsel for the appellant is that that the learned Courts did not appreciate that under Section 92 of the Rajasthan Municipalities Act, 1959 (for brevity, "the Act of 1959"), the subject property being of public utility, stood vested in it. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 19.02.2011 be quashed and set aside and the civil suit filed by the plaintiff be dismissed.

7. Heard. Considered.

8. Indisputably, the plaintiff was in possession of the subject property on the day he filed the suit for permanent injunction which is the only relevant criteria in such a suit. Although, no documentary evidence was produced by the plaintiff to show his ownership over the subject property; but, the defendant could not establish its contention that the plaintiff has raised construction of the subject shop a day before filing of the suit encroaching upon the land of public toilet. Despite making categorical suggestion to the plaintiff (PW-1) during his cross-examination that in the survey conducted in the year, 1947, the land in question was recorded in the municipal record, it was not produced. Further, Shri Amar Singh, (DW-1), the Executive Officer, despite admitting that the subject property was recorded under the ownership of municipality in its record, the defendant failed to produce any such title document. No reason has been furnished as to why the best evidence in possession of the defendant to show its title over the subject land was withheld from the scrutiny of the learned Court. In these circumstances, an adverse inference is liable to be drawn against the defendant.

9. Contention of the learned counsel for the defendant with regard to vesting of title of the subject shop in it by virtue of Section 92 of the Act of 1959 is wholly misconceived inasmuch as it could not be esta