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NAGAR PARISHAD BIKANER v INDRASINGH - CSA Case No. 333 of 2001  RD-RJ 380 (9 March 2006)
S.B.CIVIL SECOND APPEAL NO.333/2001
Nagar Parishad, Bikaner vs. Indra Singh.
DATE OF JUDGMENT ::: 9.3.2006
HON'BLE MR. PRAKASH TATIA, J.
Mr. D Mulchandani, for the appellant.
Mr. BK Vyas, for the respondents.
Heard learned counsel for the parties.
This second appeal is by the defendant Municipal
Council, Bikaner and has been filed against the judgment and decree dated 25.4.2001 by which the first appellate court dismissed the appeal of the appellant and upheld the judgment and decree of the trial court dated 21.1.1997.
It appears from the facts of the case that the plaintiff filed a suit for permanent injunction against the
Gram Panchayat, Shivbari, Tehsil and District Bikaner with the allegation the plaintiff is owner of the property in dispute and the gram panchayat itself issued patta in favour of the plaintiff as back as on 27.1.1966. Despite this, when the plaintiff started construction, the Gram
Sewak of Gram Panchayat came on the site and directed the plaintiff to stop the construction work. He also informed that he has come on the spot as per the direction of the
Tehsildar, Bikaner. The plaintiff, therefore, sought relief of permanent injunction against the Gram Panchayat seeking a relief that the defendant may be restrained from obstructing the plaintiff from raising construction and the defendant may further be restrained from interfering in his peaceful possession.
The defendant did not appear, therefore, the trial court proceeded ex-parte. The plaintiff produced his witnesses and also produced the patta. The trial court decreed the plaintiff's suit for injunction against the defendant on 21.1.1997. The Gram Panchayat did not prefer any appeal to challenge the said judgment and decree. The judgment and decree of the trial court dated 21.1.1997 was challenged by present appellant Municipal Council, Bikaner.
The appellant in the appeal prayed that it may be granted leave to appeal because the Gram Panchayat,
Shivbari is no more in existence and the land has come in the jurisdiction of the Municipal Council, Bikaner.
According to the appellant, the plaintiff should have impleaded the Municipal Council, Bikaner as party defendant but in view of the decree obtained by the plaintiff, the
Municipal Council, Bikaner will not be able to take steps against the plaintiff. The first appellate court dismissed the appeal vide judgment and decree dated 25.4.2001. Hence, this second appeal.
According to learned counsel for the appellant, the first appellate court committed serious error of law in dismissing the appeal on the ground that the appellant did not obtain the leave to appeal to challenge the judgment and decree of the trial court whereas that was the prayer made by the appellant in the appeal itself. It is also submitted that in fact, the area which was earlier with
Gram Panchayat, Shivbari, has been transferred to the
Municipal Council, Bikaner, therefore, the appellant is aggrieved against the judgment and decree.
It is also submitted by learned counsel for the appellant that as per the evidence of the plaintiff himself, his age at the time of issuance of patta by the gram panchayat was 6 years only, therefore, the patta has been obtained by fraud.
I considered the submissions of learned counsel for the parties and perused the facts of the case.
The plaintiff came with a specific case that the Gram
Sewak of the Gram Panchayat, Shivbari tried to obstruct the plaintiff from raising the construction and he informed that he is stopping the plaintiff as per the instructions of the Tehsildar. No allegation has been levelled against the Municipal Council, Bikaner nor it is a case of the plaintiff that subsequent to that action and subsequent to end of the period of Gram Panchayat, Shivbari and vesting of the area in Municipal Council, Bikaner, any of the person of the Municipal Council, Bikaner gave any threat to the plaintiff, therefore, in the facts of the case, if the appellate court did not granted leave to appellant to prefer appeal, the appellate court has not committed any illegality. Apart from above, the judgment may have its own effect against the gram panchayat which was there at relevant time.
The appellant's case is that the area in which the property in dispute is situated has been transferred to the
Municipal Council, Bikaner, but today, in bunch of appeals
(S.B.Civil Second Appeal No.267/2004 and connected appeals) which are decided today, it has been stated on behalf of the same Municipal Council, Bikaner that the area of the
Gram Panchayat, Shivbari was transferred to the Municipal
Council, Bikaner with effect from 19.2.1986, therefore, that transfer of area to Municipal Council, Bikaner is after the issuance of the patta by the Gram Panchayat. The appellant wants to challenge the patta which was issued in the year 1966 and which was not challenged by the Gram
Panchayat even till 1986 i.e. after 20 years. The acts done by the gram panchayat in the year 1966 cannot be nullified by the Municipal council because of vesting of the area in
Municipal Council, Bikaner in the year 1986.
In view of the above, if the first appellate court in the facts of the case dismissed the appeal, I do not find any reason to entertain the second appeal where the decree is against the Gram Panchayat, Shivbari or its any officers.
Accordingly, I do not find any merit in this appeal and the same is hereby dismissed.
(PRAKASH TATIA), J.
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