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EXECUTIVE ENGINEER RPS IRRIGATION & ANR. v MOHD. MOHISEEN & ORS. - CSA Case No. 409 of 2007 [2007] RD-RJ 5319 (5 November 2007)

S.B. Civil Second Appeal No.409/2007

Executive Engineer PRS Irrigation Department,

Rawatbhata & Anr. vs

Mohd. Mohiseem & Ors.

Date of order : 5.11.2007


Mr.HR Soni, Addl. GA

Mr.Jagdish Vyas, for the respondents.

Heard learned counsel for the parties.

A suit for permanent, prohibitory and mandatory injunction was filed by the plaintiffs in the trial court in the year 1982, which was decreed by the trial court on 14th Nov., 1982. The plaintiffs' case was that the property in dispute was allotted to one

Gangabai on 26th Dec., 1973. This property was purchased by one Murad Begam (now deceased)-the mother of the plaintiffs. When the defendants- appellants tried to raise a wall on the portion of the property of the plaintiffs, then they filed the suit for injunction seeking mandatory injunction for removal of the wall.

The defendants-appellants submitted that the area in question was declared as protected area and for that purpose, a notification was issued on 30.1.1974. The allotment order of the year 1973 referred above was cancelled on 6th April, 1974. In view of the above, neither Murad Begam nor the plaintiffs could have acquired any title to the property. It is also submitted that appellants produced copy of the gazette notification before the trial court, but the trial court observed that original gazette notification was not produced by the defendants nor they produced map to show that area in question is covered by the area for which the notification dated 30.1.1974 was issued.

In view of the above reasons as well as in view of the fact that the proceedings initiated against the plaintiffs under Section 91 of the Land Revenue

Act for their eviction was dismissed by the competent authority, the trial court granted decree for mandatory injunction of removal of the wall in question and also granted prohibitory injunction vide judgment and decree dated 14.1.1998.

The present appellants-defendants preferred appeal before the appellate court and said appeal was dismissed by the appellate court Addl. District

Judge No.2, Chittorgarh vide impugned judgment and decree dated 29.1.2003.

According to learned counsel for the appellants the land in question was falling in the protected area and the transfer of land in favour of Murad

Begam was void. It is also submitted that the courts below committed serious error of law while holding that the defendants-appellants have not proved that the land is falling within the area covered by the gazette notification dated 39.1.1974. According to learned counsel for the appellants defendants- appellants failed to produce original copy of the gazette, but the correctness of which cannot be disputed nor has been disputed and by oral evidence of the defendants, the defendants fully proved that the land in question is falling within the protected area as declared by notification dated 30.1.1974. It is submitted that by this they have discharged their full obligation to prove that land is falling within the protected area. It is also submitted that it was not necessary to produce any map when there was evidence available on record.

Learned counsel for the appellants also submitted that even the plaintiffs have not stated in their plaint that the land is not covered under the notification dated 30.1.1974.

I considered the submissions of learned counsel for the parties and perused the facts of the case and the reasons given by the courts below in the impugned judgments.

Undisputedly, the defendants-appellants did produce the copy of the gazette notification, which is dated 30.1.1974. If by this notification, the land in question was declared to be protected area then the land was allotted before this notification dated 30.1.1974 and it is admitted case that the land was allotted to the original allottee on 26th Dec., 1973. So far as land in question whether is covered under the notification dated 30.1.1974 for which the trial court referred the neighbourhood given in the notification and thereafter, after considering the documentary evidence observed that the defendants should have proved the fact by producing the map is concerned, I do not find that the trial court's observation suffers from any error of law. The outer area given in the notification dated 30.1.1974 proves only area for which notification was issued, but basic question whether the land in question is covered under the said notification should have been proved by evidence. Oral evidence may be sufficient in some cases for proving a fact of possession or even of inclusion of some land in particular boundary but whether that evidence is sufficient or not, is to be seen according to the facts of each case and in this case,the two courts below have concurrently held that fact in issue of land covered by notification has not been proved by evidence produced by the defendants and further evidence and more reliable evidence could have been produced by the defendants and that has not been produced. Therefore, I do not find any reason to interfere in the second appeal in this finding of fact recorded by the two courts below.

At this stage, learned counsel for the appellants also submitted that since the allotment was cancelled on 6th April, 1974, therefore the plaintiffs sought injunction against the true owner and, therefore, the injunction could not have been granted against the true owner. For this, suffice it to state that the courts below considered the fact that the eviction proceedings against the plaintiff was initiated under Section 91 of the Land Revenue

Act and that was dismissed and, therefore the contention of the appellant that the land in question belongs to appellants as owner of the property, cannot be accepted for want of sufficient evidence about the land falling within the protected area.

In view of the above reasons I found that no illegality has been committed by the courts below and no substantial questions of law are involved in this appeal.

Hence, the appeal of the appellants is dismissed.

(PRAKASH TATIA), J. c.p.goyal/-


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