Shanti Devi vs U.I.T.

Dr. Vineet Kothari, J.—The legal representatives of Sh. Bishandas Khatri, viz. Smt. Shanti Devi and others have preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908, being aggrieved by the concurrent rejection of their Civil Suit No. 500/2001-Smt. Shanti Devi and Ors. Vs. UIT, Bikaner and Tek Chand S/o Topandas. The learned trial court rejected the suit on 31.08.2005 and the first appeal filed by the appellants/plaintiffs being Civil Appeal No. 104/2005 was rejected on 10.03.2014.

The relevant extract of both these judgments and decrees of the courts below are quoted herein below for ready reference to have a birds'' eye view of the chequered history of the litigation, which started in the year 1947 when Bishan Das, upon partition of the country, came from Pakistan side to Bikaner, in the State of Rajasthan.

From the trial court's judgment dated 31.08.2005.

The first appellate court while rejecting the appeal of the appellants/plaintiffs on 10.03.2014 has held as under:-

From the appellate court judgment dated 10.03.2014:

Mr. M.C. Bhoot, Sr. Advocate, assisted by Mr. Arpit Bhoot, learned counsel for the appellants/plaintiffs submitted that the learned courts below have erred in dismissing the suit filed by the appellants/plaintiffs as it was clear from the documents on record that both the plots were allotted to the plaintiff's husband late Sh. Bishandas. He showed to the Court Exhibit-1, which is an allotment letter issued by the then Dy. Director, Rehabilitation Department, Bikaner on 16.09.1952 in favour of Bishandas, citing No. 2 and 3 for flour mill in the Rathkhana area of Bikaner and also a copy of the letter dated 25.07.1958 issued by the Regional Settlement Commissioner wherein the deduction from the gross compensation of Rs. 460.69 was made for two plots at Bikaner given in the said certificate of payment of compensation to him by the Ministry of Rehabilitation, Government of India. Mr. Bhoot also submitted that "Khancha-Bhumi" allotted in favour of defendant Tek Chand, could not be so allotted in his favour as there was 10 Ft. wide "Gali" (street) between the plaintiff's residential house and the disputed "Khancha-Bhumi" allotted to the defendant and by which he encroached upon the second plot of the plaintiff, on which the plaintiff had established a flour mill.

Learned counsel for the appellants, therefore, urged that since a collusive decree was obtained by the defendant, Tek Chand for cancellation of decree for which the present suit was filed by Bishandas, who had a legal rights over the said plot, the said suit deserves to be decree in favour of appellants. He also submitted that the learned appellate court has erred in treating the order passed by the Executing Court rejecting objections filed by the plaintiff, Bishandas, under Order 21 Rule 99 CPC in the execution of decree vide order dated 23.02.1980. In the suit filed for specific performance filed by the respondent-Tek Chand, on 14.07.1972 and since such order could not be treated as barring the present suit of plaintiffs by the principles of res-judicata and thus a substantial question of law arises in the present second appeal filed by the plaintiffs, legal representatives of late Sh. Bishandas.

Per contra, Mr. Rajat Arora, appearing on behalf of Mr. Sanjeet Purohit, learned counsel for the respondent/defendant submitted that the original plaintiff, Bishandas, was never allotted both the plots as claimed by him and admittedly only one Patta was issued in his favour on which he had constructed a residential house. He actually encroached over the other plot of 1038 Sq. Ft. and set up a flour mill and in the execution of a valid decree granted by the competent court in favour of defendant-Tek Chand, the plaintiff's flour mills was removed and possession was given to the respondent/defendant, Tek Chand. One he was allotted a part of the same land by the UIT, Bikaner, validly for consideration or price as a "Khancha-Bhumi" and the objections filed by the objector (original plaintiff) Bishandas, were rightly rejected by the learned Executing Court and even appeal filed against that order, being Appeal No. 108/1980-Bishandas Vs. Tek Chand was dismissed by the court of learned District Judge, Bikaner on 19.08.1980.

Learned counsel for the respondent/defendant, Mr. Rajat Arora, also submitted that objections decided upon the application under Order 21 Rule 97 are to be decided as a civil suit as per Order 21 Rule 101 CPC and, therefore, findings arrived at by the learned Executing Court are to be treated as findings in a civil suit as per Order 21 Rule 101 of CPC and are binding between the parties. He submitted that the findings of facts arrived at by the courts below are perfectly justified and being findings of facts, which are binding on this Court as well, no substantial question of law arises in the present second appeal filed by the legal representatives of original plaintiff late Sh. Bishandas and in the absence of any Patta issued in his favour for the other plot in question, mere pendency of his application before the UIT, Bikaner, could not confer any right upon him and consequently, the present second appeal of plaintiffs deserves to be dismissed.

Having heard the learned counsel for the parties at length and upon perusal of the judgments of the courts below, this Court finds considerable force in the contentions raised by the learned counsel for the respondent/defendant and admittedly in view of the fact that there was no allotment of second plot in favour of plaintiff-Bishandas, or his legal representatives, they cannot be permitted to question the allotment of "Khancha-Bhumi" made in favour of defendant-Tek Chand under the valid order of the competent court, which was even upheld by the appellate court also upon being challenged with the rejection of the objections of the plaintiff-Bishandas by the two courts below; and even the matter at T.I. stage was brought before this Court by way of writ petition being SBCWP No. 951/2010-Smt. Shanti and Ors. Vs. The Urban Improvement Trust, Bikaner and Ors. dismissed on 12.03.2010.

Consequently, this Court is of the considered opinion that there is no substantial question of law involved in the present second appeal of the appellants/plaintiffs and the same does not have any force and the courts below have analyzed the relevant evidence properly and there is no perversity in the findings of facts arrived at by the courts below. Against such concurrent dismissal of the suit filed by the appellants/plaintiffs no substantial question of law arises in the present appeal for consideration by this Court.

Resultantly, the present second appeal filed by the appellants/plaintiffs being bereft of any force, deserves dismissal and the same is, accordingly, dismissed. No costs. A copy of this judgment be sent to the concerned parties forthwith.