The court affirmed the necessity of proving ownership despite acknowledged possession and ruled against reliance on a patta for property ownership lacking formal declaration.

ORDER :

1. The present second appeal has been filed against judgment and decree dated 19.03.1997 whereby the learned Appellate Court decreed the suit of the plaintiff by setting aside the judgment and decree dated 31.03.1993.

2. In the suit, plaintiff had claimed that the suit was simplicitor for permanent injunction averring that the plaintiff’s restaurant in the form of cabin was situated near Bus Stand, Jassa Kheda. The patta of the land was issued on 17.02.1975 by Tehsildar, Bheem and since then the plaintiff had been running a hotel having the required electricity and water connection. On 24.07.1991, when the plaintiff was as usually earning his livelihood, the defendant asked him to remove his cabin and if he do not remove then they would remove with the help of bulldozer. The plaintiff had sent a notice to the defendants. On 30.07.1991, when the plaintiff returned back to Bheem, the defendant got some signatures obtained on blank papers and, therefore, the plaintiff could not take any advice on the same. Further, there was no scheme of widening of the National Highway and with malafide intention the defendants were trying to dispossess him by removing the cabin and lastly prayed for issuing permanent injunction against the defendants.

3. The defendant filed the reply denying the averments of the plaint and contended that the patta cannot be issued for the land which is recorded as State Government land in revenue record. Particularly, case bearing No.79/69 has already been decided against the plaintiff on 15.10.1989 wherein he had been found as an encroacher. It was further contended that in the so called patta the land has been shown as khasra No.11 whereas the present cabin which is existing on the disputed place is recorded as khasra No.3759. The defendants are, therefore, entitled for removal of encroachment. Only notice was given and there was no personal enmity with the plaintiff. Moreover, it was argued by the defendants that they were not demolishing the cabin but were only shifting the cabin from the territory of the National Highway and other people who are coming within the territory of the National Highway which is 100 ft. wide have been given such similar notice and thus, prayed that the suit may be rejected.

4. That the Trial Court framed the following issues:-

5. Issue Nos.1 and 2 were decided against the plaintiff. Issue No.3 was decided in favour of defendant. Issue No.4 was decided against the defendant. Issue No.5 was decided against the defendant and on the basis of the finding of the Issue Nos.1, 2 and 3, the suit of the plaintiff was dismissed vide judgment and decree dated 31.03.1993.

6. The plaintiff aggrieved against the judgment and decree dated 31.03.1993 preferred first appeal before the Court of Additional District and Sessions Judge, Rajsamand (hereinafter referred to as “First Appellate Court”). The learned First Appellate Court vide its judgment dated 19.03.1997 reversed the finding on Issue Nos.1 and 2 in favour of the plaintiff. The finding on Issue No.3 was also reversed and decided against the defendants and on the basis of the findings so reversed, the suit of the plaintiff was decreed in the manner that the defendants were permanently restrained from removing the restaurant from the place of the plaintiff either themselves or through their agent vide judgment and decree dated 19.03.1997.

7. The defendants being aggrieved by the said judgment and decree preferred the present second appeal. The said second appeal was admitted by this Court on 14.05.1998 on the following substantial question of law:-

“On the basis of a patta issued by the Revenue Authorities of the State of Rajasthan, the respondent