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BANGOR CHARITABLE TRUST DIDWANA versus RAJ.STATE THROUGH COLLECTOR NAGAUR & ORS

High Court of Rajasthan

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BANGOR CHARITABLE TRUST DIDWANA v RAJ.STATE THROUGH COLLECTOR NAGAUR & ORS - CSA Case No. 116 of 2004 [2007] RD-RJ 5537 (22 November 2007)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

JUDGMENT.

Bangor Charitable Trust, v. The State of Rajasthan

Didwana & ors.

S.B. Civil Second Appeal 116/2004 under

Section 100 C.P.C. against the judgment and decree dated 2.5.2003 passed by the Additional

District Judge, Didwana in Civil Appeal( Decree)

No.17/2002.

Date of Judgment: November 22, 2007.

PRESENT

HON'BLE MR. PRAKASH TATIA,J.

Mr. K.C.Samdaria for the appellant.

Mr. M.R. Singhvi for the respondents.

BY THE COURT:

This second appeal is against the dismissal of the suit of the plaintiff by the trial court by judgment and decree dated 27.2.2002 and dismissal of the first appeal by the judgment and decree dated 2.5.2003.

Brief facts of the case are that the plaintiff Bangor

Charitable Trust, Didwana through its representative, filed suit for declaration and injunction that the land of Khasra

No.2163 measuring 87 bighas and khasara No.2165 measuring 106 bighas 18 biswas be declared pasture-land. The plaintiff further sought relief of injunction against the respondents that the land in question may not be put to any other use and may not be allotted to any body.

The defendants submitted written statement and stated that the land in question has already been allotted to the defendant-Rajasthan Industrial Investment Corporation

Limited (for short the 'RIICO') by the order of the State

Government on payment of market value of the land which the RIICO deposited with the State on 31.3.1997 vide Receipt

No.51. The possession of the land has already been delivered to the defendant-respondent RIICO by the revenue authorities. It is also submitted that the land was never recorded in the name of the plaintiff nor it was allotted as pasture-land.

The issues were framed and after trial, the trial court held that the plaintiff set-up the case that the suit property was allotted to Seth Mangni Ram Bangor on 15.6.1944 but in evidence the plaintiff's witness PW-1 stated that the land was given to the Trust. Thereby, the plaintiff's own witness contradicted the fact pleaded by the plaintiff that the land was allotted to Seth Mangni Ram Bangor. The trial court also considered the documents Ex.4, Ex.5 and Ex.7 which were produced by the plaintiff to prove their right and interest in the property of the Trust and thereafter held that by these documents only it is provided that the land in question will be used for grazing and in none of the document it is mentioned that the land is allotted to either Seth Mangni Ram Bangor or to the plaintiff-Trust. The trial court also held that from combine reading of Ex.5 and Ex.7, it appears that Seth Mangni

Ram Bangor requested for reserving some land for pasture purpose and there is clear mention that the land shall be managed by the Panchayats. It appears that reference of more than one Panchayat in managing the land is because of the reason that the total land involved is 20,000 bighas. The trial court also held that from the evidence produced by the plaintiff, it is not proved that the land in question was in plaintiff's possession or it was used for pasture purpose.

Therefore, in substance, the trial court dismissed the plaintiff's locus standi in maintaining the suit. The trial court further held that the District Collector had power to set apart the land and allot for non-agricultural purpose. The plaintiff did not choose to challenge the order of the land allotment which was passed in favour of RIICO nor sought relief for possession, therefore, on this ground also, the plaintiff is not entitled for any relief. The plaintiff's suit was dismissed by the trial court vide judgment and decree dated 27.2.2002 and the appellate court confirmed the finding of fact recorded by the trial court vide judgment and decree dated 2.5.2002.

According to the learned counsel for the appellant, the appellant placed on record the documents Ex.4, Ex.5 and Ex.7 as well as placed on record the copies of the revenue record which clearly established that the land in question is Gochar land and is in possession of the plaintiff. The trial court misread the documents Ex.4, Ex.5 and Ex.7 as well as the relevant revenue record. It is submitted that once the land has been recorded as Gochar land in revenue record then it was the duty of the defendants to prove the validity and legality of their allotment order. Once it is proved that the land is Gochar land then the allotment order passed in favour of the defendant RIICO is null and void and cannot effect the plaintiff's right, title or interest in the property. It is submitted that since the plaintiff was not party in the allotment order nor was party in the proceeding for allotment of land nor any notice was given to the plaintiff before allotting the land to the defendant-RIICO, therefore, the plaintiff could not have challenged the order of allotment passed in favour of the defendant RIICO and can submit that the order cannot affect rights of the plaintiff.

The learned counsel for the appellant relied upon the judgment of this Court in the case of Sukh Lal and others vs.

Devi Lal and ors. (AIR 1954 Raj. 170). The Division Bench of this Court pointed out the distinction between suit for cancellation of instrument and suit for declaration. According to the learned counsel for the appellant, the present suit is for declaration and was not for cancellation of deed and the plaintiff could not have filed the suit for cancellation of the allotment order and could have ignored the allotment order passed in favour of the defendant. It is also submitted that the defendant failed to prove when the possession of the land was taken from the plaintiff by the State to hand over it to the defendant-RIICO.

The learned counsel for the respondents vehemently submitted that the trial court as well as the first appellate court considered all the documents relied upon by the plaintiff and thereafter reached to the conclusion that the plaintiff failed to establish his right, title or interest in the property in dispute. It is also submitted that none of the document has been misread by the trial court. It is submitted that from any document, it is not proved that the land was allotted to the plaintiff then the plaintiff has no locus standi to file the suit. It is submitted that the actual physical possession at the time of filing of the suit was with the respondents and the plaintiff did not sought relief of possession, therefore, the suit simpliciter of declaration and injunction without relief of possession, was not maintainable and, therefore, the suit of the plaintiff was rightly dismissed by the trial court. According to the learned counsel for the respondent- RIICO, assuming for the sake of argument that some land was reserved for grazing even then the plaintiff has not acquired any interest in the property, as the plaintiff failed to prove that the plaintiff used the land for this purpose. It is also submitted that even a land is pasture-land then the revenue authorities may allot the land for different purpose and the villagers can get alternate land reserved as pasture land but they cannot claim that the land should continue to be pasture-land. It is submitted that no substantial question of law is involved in this appeal. Hence the appeal be dismissed.

I considered the submissions of the learned counsel for the parties and perused the record also.

It appears from the pleading itself that the plaintiff's own case, as pleaded, is that at the request of Seth Mangni

Ram Bangor, The Commissioner, Land Revenue of Jodhpur

State allotted the land in dispute on 15.6.1944. The order dated 15.6.1944 was not placed on record. The order of the

Government of Rajasthan dated 24.7.1961 relied upon by the learned counsel for the appellant only is a communication addressed to the District Collector, Nagaur and conveys that common pasture lands entrusted to the Panchayats have to be utilised for the purpose of grazing of the village cattle and the village Panchayats should not auction the natural produce. It also says that, therefore, it is requested that the pasture lands should be placed under the administrative control of the

Panchayats. This document nowhere conveys that the land in question is allotted to the plaintiff, however, there is mention that it is in relation to Bangor Gochar Bhumi and copy was sent to the Manager, Bangor Gochar Samiti, Didwana. The other letter dated 5.6.1986 relied upon by the learned counsel for the appellant also does not prove that the land in question was allotted to the plaintiff. It is true that in the revenue record there is entry against the land in question that it is Bagor/Gochar land. But all these documents were considered by the two courts below and the two courts below held that the plaintiff-Trust failed to establish its relation with the land in question. I do not find that the court below have committed any error in reaching to the conclusion nor this Court can interfere in the findings of fact record by the two courts below by exercising jurisdiction under Section 100,C.P.C.

So far as question of possession is concerned, from the evidence of the plaintiff which has been considered in detail by both the two courts below and both the courts below held that the plaintiff failed to establish their possession over the land in dispute. The contention of the learned counsel for the appellant that the two courts below held so because of the only fact that the land has been allotted to the RIICO but that appears to be not correct. The two courts below have decided two issues separately, one about the claim of possession of the land of the plaintiff and for that purpose, considered the oral statement of the plaintiff's witnesses in detail and after considering the plaintiff's evidence held that the plaintiff failed to prove the actual physical possession over the land in dispute. This finding of fact also cannot be interfered by this

Court.

No substantial question of law is involved in this appeal in view of the above reasons.

So far as the contention of the learned counsel for the appellant that he was not under obligation to challenge the order of allotment of land to the RIICO-defendant, then the plaintiff could have sought relief of declaration that the order of allotment of land in favour of defendant-RIICO is null, void and illegal without pleading relevant fact for his claim, upon which only the defendant could have rebutted the plaintiff's allegation and could have produced how the land allotment proceeding was concluded and the land was allotted to the plaintiff.

In view of the facts of the case, the judgment of this

Court delivered in the case of Sukh Ram(supra) is of no help to the plaintiff-appellant.

Hence the appeal of the appellant is dismissed. No order as to costs.

( PRAKASH TATIA ),J. mlt.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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