Nagar Palika, Bharatpur and Others vs Girdhari and Others

Nisha Gupta, J.—The instant civil second appeal has been preferred against the judgment and decree dated 22/08/1991 passed by Additional District Judge No. 1, Bharatpur by which, he dismissed Civil Regular Appeal No. 36/1986 filed by the defendant-appellants and upheld the judgment and decree dated 24/08/1976 by which, the Additional Munsiff and Judicial Magistrate First Class No. 1, Bharatpur has decreed Civil Suit No. 71/1967 filed by the plaintiff-respondents.

The facts giving rise to this appeal in brief are that the plaintiff-respondents filed a suit for permanent injunction against Kishanchand and Municipality. Kishanchand died during pendency of the suit and his legal representatives were brought on record. One of the legal representatives, Devi Bai also expired and her name was got deleted during pendency of the suit. It was alleged by the plaintiff that the plot in question was purchased by the plaintiff''s father on 30/03/1967 and he is the owner of the plot but now the Municipality is going to sell the property showing it to be the nazul land in favour of defendant-appellant No. 2 Parmanand and his mother. It has also been alleged that Nagar Palika gave permission for construction and no notice has been issued prior to entering the property as nazul land and suit for injunction has been filed in the above background. Defendant-appellant No. 1 Nagar Palika, Bharatpur filed written-statement on the ground that it is a nazul land and notices have been issued but no objections have ever been received and plaintiff-respondent has no right, title and interest in the property. The suit is barred as no notice u/S. 271 of the Rajasthan Municipalities Act, 1959 (shall hereinafter be referred to as the "Act of 1959") has been given. Suit for permanent injunction is not maintainable as there is no prayer for declaration. Suit was decreed by the court below. Appeal has been filed by all the defendants, which was dismissed in default vide order dated 23/11/1979. Thereafter, only appellant No. 2 moved an application for restoration and appeal has been restored vide order dated 20/02/1980 by imposing a cost, which was paid and, thereafter, appeal has again been taken on record. Thereafter, plaintiff has raised objection that Nagar Palika has not moved any application for restoration. Hence, order has become final against Nagar Palika but that was dismissed. Revision has been filed, which has also been dismissed and, thereafter, civil regular appeal has been dismissed. Hence, this second appeal.

The appeal has been admitted on 30/10/1995 on the following substantial questions of law:-

"1. Whether the first appellate court has misread the record and committed an illegality in holding that the first appeal of Nagar Palika, Bharatpur had been dismissed and on this count, the decree passed by the first appellate court stands vitiated?

Whether the first appellate court has wrongly observed in its impugned judgment that the Nagar Palika Bharatpur had preferred revision petition before the High Court against the order dated 13.8.1981 and that the same was dismissed vide order dated 2.12.1981 and on this count the decree passed by the first appellate court stands vitiated?

Whether the first appellate court has misconstrued the provisions of order 41 rule 4 C.P.C. and committed an illegality in holding that in this instant case when appeal of one of the appellant was dismissed other appellants did not have any right to raise objection on behalf of such appellant u/O 41 rule 4 C.P.C.?

Whether the suit land was a Nazul land and the same vested in the Nagar Palika, Bharatpur and as such the sale of the dispute land in favour of the appellant Permanand was valid?"

Contention of the appellants is that observation of the first appellate court is against the record. There is no narration of fact in the order dated 20/02/1980 that appeal against the appellant No. 1 has been dismissed for non-prosecution and has become final. Hence, this is misreading of the fact and findings of the first appellate court are perverse as the first appellate court has also observed that against the order dated 13/08/1981 by which, application filed by the plaintiff has been dismissed; revision petition has been filed by the Municipality, whereas in fact, revision has been filed by the plaintiff-respondent, which has been dismissed. Hence, there is a clear misreading of facts. Appellate court has not rightly interpreted the provisions of Order 41 Rule 4 CPC. Admittedly, all the appellants were having common grounds in appeal and in appeal filed by one of them, the court may consider the findings of the court below. Originally, appeal was preferred by both the appellants. Grounds were common to both the appellants and vide order dated 20/02/1980, whole of the appeal was restored. Hence, protection under Order 41 Rule 4 CPC was available to the appellant-Municipality also as, grounds were common to all the appellants and appeal could have been decided for both the appellants irrespective of the fact that Municipality did not move any application for restoration and first appellate court has not considered the objection as regards to Section 271 of the Act of 1959. Initially, the suit was based only on possession but the appellate court vide order dated 28/02/1973 remanded the matter back to the trial court to consider the point of ownership also and suit has become suit for title. No title has been shown by the respondent inspite of this, suit has been decreed. Alternate remedy u/S. 285 of the Act of 1959 was available to the respondent and suit for injunction was barred. There is no document to show the title of Mst. Chandania hence, judgment deserves to be set-aside. Per contra, contention of the respondent is that when Municipality, appellant No. 1 has not moved any application for restoration, appeal has not been restored qua the appellant. Judgment of the appellate court has become final. There is no evidence to show that the property is nazul land. Ex.1 sale-deed clearly proves title of Mst. Chandania and courts below have concurrently held so hence, no interference is needed in this second appeal.

Heard learned counsel for the parties and perused the impugned judgment and decree as well as original record of the case.

As regards to substantial question of law No. 1, the court below has held that appeal filed by Nagar Palika has been dismissed and it is specifically mentioned by the appellate court in the order dated 20/02/1980 that appeal of Nagar Palika has been dismissed for non-prosecution and this order has become final, whereas the order, which has been placed on record clearly shows that there is no such narration in the order dated 20/02/1980. Restoration application has been filed only on behalf of appellant No. 2 and on cost, whole appeal has been restored. Hence, appellate court has clearly misread the order dated 20/02/1980 and had observed that findings of the first appellate court has become final qua the appellant No. 1 and substantial question of law No. 1 stands decided in favour of the appellants.

As regards to substantial question of law No. 2, the facts are plain and simple that against the order dated 13/08/1981 by which application filed by the plaintiff for abatement of the appeal, revision has been preferred admittedly by the plaintiff and no revision has been filed by the appellant-Nagar Palika, Bharatpur but the first appellate court has wrongly mentioned the fact that revision has been filed by the Nagar Palika and this fact also vitiates the finding of the first appellate court. Order of the revisional court dated 22/10/1981 has been brought to the notice of this Court, which clearly speaks that revision has been filed by the plaintiff-respondent. Hence, in view of above, substantial question of law No. 2 is also answered in favour of the appellants.

As regards to substantial question of law No. 3, the contention of the appellants is that the first appellate court has misconstrued the provisions of Order 41 Rule 4 CPC. The provisions of Order 41 Rule 4 CPC read, as under:-

"4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.-Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be". The aforesaid provision clearly mandates the situation, where there are more plaintiffs or more defendants and appeal has been preferred on common grounds to all. Then in that case, any of the plaintiffs or defendants may appeal and appellate court is competent to reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be but the appellate court has clearly misread these provisions and held that once an appeal has been dismissed as regards to one of the appellants, other appellants are estopped from raising any objection, which is not the intention of provisions under Order 41 Rule 4 CPC. Here in the present case, grounds for appeal were common to both the appellants. Restoration application has been filed by one of the appellants but appeal has been restored in whole and apart from it, decree was not separable and provisions of Order 41 Rule 4 CPC were clearly attracted and this Court has no hesitation to say that the first appellate court has misread the provisions of Order 41 Rule 4 CPC and hence, substantial question of law No. 3 is answered in favour of the appellants.

Substantial question of law No. 4 is as regard to merit of the case. Contention of the plaintiff before the court below was that he is owner of the property and he has purchased the property from Mst. Chandania and Ex.1 sale-deed has been submitted but nothing has been shown as regards to fact that how Mst. Chandania has derived the title or her predecessor has derived the title. Mst. Chandania has been examined as PW2 and she has not stated a single word about her ownership. Her only contention is that she is in possession of the property. In cross-examination, it has been stated that property is her ancestral property but no documentary title-deed has been submitted, whereas appellants have submitted Ex.A1 to Ex.A3 by which, the land has been entered as nazul land. ''Nazul Land'' has been defined in Section 3(1)(b) of the Rajasthan Land Revenue Act, 1956 and it has also been brought on record that prior to entry in the Register of Nazul Land, objections have been invited but nobody had objected and after due process, property has been entered as a nazul land and counsel for the appellants has rightly relied on the presumption u/S. 114(e) of the Indian Evidence Act, 1872 that official acts have been regularly performed. Respondent has come only with the contention that he is owner of the property as he has purchased the same from Mst. Chandania but admittedly, no title-deed has been submitted. Apart from it, entry of the plot as nazul land has not been challenged. Hence, appellants have come with the clear pleading that the suit land is a nazul land and was vested in the Nagar Palika and sale in favour of the appellants is valid, whereas respondent has not submitted any title document that property by any document belongs to the respondent. Court below and the appellate court have approached the matter with perversity and from ''najaria naksha'' of another person in which disputed property has been shown as Gangabux has been relied upon and furthermore, it has been taken as the admission of the Nagar Palika. Ex.6 and Ex.7, which are permission for construction to Girdhari Lal and annexed map could not in any way create any title in favour of the respondent and the finding of the court below as well as the first appellate court are perverse on Issue No. 1. Hence, substantial question of law No. 4 is answered in favour of the appellants.

Contention of the respondent is that issue of title is irrelevant in the case of permanent injunction. This cannot be a straight proposition and facts of the present case clearly speaks that the matter has been remanded back to the trial court vide order dated 28/02/1973 to consider the issue of title hence, issue of title was relevant issue in the matter and apart from it, the suit was not simplicitEr suit for injunction to protect possession but also injunction and further sale has also been sought, which could only be sought after declaration of the title, which was under cloud and appellants have placed reliance on the judgment of Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, , where it has been held that the court should use its discretion carefully to identify cases where enquiry of title is warranted and it will depend upon the facts of the case and while dealing with the controversy, the Apex Court has considered the various aspects of the matter and held that in this circumstance, simplicitEr suit for injunction would be maintainable and if the matter involved is simple and straightforward, only suit for injunction would be maintainable but here, issue of title was directly involved in the matter as title of the respondent was under cloud. A specific objection has been raised by the appellants and furthermore, appellate court has also remanded the matter for consideration of issue of title and findings of both the courts below are apparently perverse and courts below without any evidence have held that the respondent is owner of the property and findings to this effect are perverse and liable to be set-aside.

Other issues have also been raised as regards to Section 285 of the Rajasthan Municipalities Act and Section 271 of the Nagar Palika Act but as no substantial of law has been framed on the above issues and the matter has been scanned on four substantial questions of law, which have been framed earlier, there is no need to give any finding on these issues.

In view of above, this civil second appeal deserves to be allowed and is hereby allowed. The impugned judgment and decree dated 22/08/1991 passed by Additional District Judge No. 1, Bharatpur in Civil Regular Appeal No. 36/1986 as well as the judgment and decree dated 24/08/1976 passed by Additional Munsiff and Judicial Magistrate First Class No. 1, Bharatpur in Civil Suit No. 71/1967 are set-aside. The records be sent back to the courts below forthwith.