Rani Devi and Others vs Balwantaram and Others

Dr. Vineet Kothari, J.—The present second appeal and the connected writ petitions being CW No. 182/2009- Municipal Board, Jaisalmer v. Smt. Rani Devi and Anr., CW No. 445/2010- Balunta Ram v. Municipal Board, Jaisalmer and Ors., are being disposed of by this common order.

The appellants/defendants, Smt. Rani Devi W/o. late Sh. Tarachand and 3 others have preferred this second appeal assailing the impugned judgment and decree dated 11.02.2011 passed by learned District Judge, Jaisalmer, in Civil First Appeal No. 06/2009-Smt. Rani Devi and Ors. v. Balwanta Ram, by which the first appeal filed by the appellants/defendants was partly allowed while affirming the judgment and decree dated 10.02.2009 passed by learned Civil Judge (Sr. Division), Jaisalmer, in Civil Original Suit No. 55/95 (62/1988)-Balwantaram v. Smt. Rani Devi and Ors., whereby suit filed by the plaintiff against the defendant for permanent injunction was decreed.

The plaintiff, Balwanta Ram, objected to the allotment of a strip of land in favour of appellants/defendants, Smt. Rani Devi W/o. late Sh. Tarachand and others. The courts below had decreed the suit in favour of plaintiff that the land in question is part of Public Chowk and, therefore, the strip of land cannot be allotted in favour of defendants, Smt. Rani Devi and Ors. The relevant findings of the learned trial court in the judgment dated 10.02.2009 are quoted herein below for ready reference:--

The appellate court, however, vide judgment and decree dated 11.02.2011 partly allowed the appeal of the defendants and held that it is for the Municipal Board to decide as to whether the said strip of land can be allotted in favour of defendants or not. The relevant finding of the learned lower appellate court is also quoted herein below for ready reference:--

Learned counsels for the parties also informed that the connected writ petitions have been filed by the Municipal Board, Jaisalmer and the plaintiff-Balwanta Ram also, because the Additional Divisional Commissioner by his order dated 29.08.2008 in the revision petition filed by the plaintiff- Balwanta Ram (Annex.3 in CW No. 445/2010) has also remanded the matter back to the Municipal Board, Jaisalmer to decide the said issue. The relevant portion of the order of the Additional Divisional Commissioner, Jodhpur is quoted herein below:--

Learned counsel for the appellants, Mr. Salil Trivedi, as well as respondents- Municipal Board, Jaisalmer, Mr. Yashwant Mehta, submitted that the matter may be remitted to be decided by the competent authority of the Municipal Board, Jaisalmer, uninfluenced by the earlier order, expeditiously within two months from today.

Having heard the learned counsel for the parties, this Court is of the opinion that no substantial question of law arises for consideration by this Court in the present second appeal of the appellants/defendants and the matter deserves to be considered by the Municipal Board, Jaisalmer, in pursuance to the order of the Additional Divisional Commissioner, Jodhpur dated 29.08.2008 as the matter relating to allotment of strip of land lies within the jurisdiction of Municipal authorities only.

Accordingly, the matter is remanded back to the Municipal Board, Jaisalmer, and it is expected from the competent authority of the Municipal Board, Jaisalmer, to decide the said issue of defendants, Smt. Rani Devi and Ors., expeditiously, preferably within two months from today on its own merits.

With these observations and directions, the second appeal and two connected writ petitions are disposed of. No costs. A copy of this order be sent to the concerned parties and the courts below forthwith.