Smt. Sarbati @APPELLANT@Hash State of Rajasthan & Ors.

This second appeal is directed against the judgment & decree dated 16.12.2014 passed by the Addl. District Judge , Bikaner, by which judgment &

decree passed by the Addl. Civil Judge (Jr.Div.), Bikaner dated 14.08.2008 has been affirmed.

The appellant-plaintiff filed a suit for permanent injunction against the State and other respondents inter-alia with submissions that she is in possession

of the property in question, which has been purchased by her through agreement dated 17.09.2001 from one Saddiq Khan, in whose favour Gram

Panchayat has issued a Patta dated 05.04.1986. It was submitted that the defendants were seeking to dispossess the plaintiff without due process of

law and that no compensation was being paid for the said purpose and therefore, they be restrained from dispossessing the plaintiff.

Written statement was filed contesting the submissions made in this regard. It was submitted that the plaintiff has no right in the property, the Gram

Panchayat had no right to issue any patta of the land in question as the nature of the land is ‘Johad Paytan’ and that the land in question has

been allotted in favour of Public Health and Engineering Department (‘PHED’) by the Colonization Department by order dated 20.04.2002 and

the respondents were constructing a Filter Plant for supplying drinking water to the people of Bikaner. Further objection was raised that as the

PHED has not been impleaded as party and the defendants No.2 & 3 are only executing the work, the suit was not maintainable.

Based on the pleadings of the parties, the trial court framed five issues. On behalf of the plaintiff, four witnesses were examined and three documents

were exhibited. On behalf of the defendants, one witness was examined and five documents were exhibited.

After hearing both the parties, the trial court came to the conclusion that as the plaintiff does not possesses a valid transfer in her favour as per

provisions of Section 54 of the Transfer of Property Act, 1882 (‘the Act’) she has no right in the property. Further the land in question could not

have been allotted by the Gram Panchayat looking to its nature and that in absence of the necessary party, the suit was not maintainable and

consequently, dismissed the suit.

Feeling aggrieved, the appellant filed first appeal. The First Appellate Court also, after hearing the parties, came to the same conclusions and

dismissed the appeal filed by the appellant.

It is submitted by learned counsel for the appellant that both the courts below fell in error in dismissing the suit / appeal filed by the appellant-plaintiff.

It was submitted that once the appellant was shown to be in possession of the property in question, the respondents could not have disturbed the

possession without adopting due process of law.

Submissions were also made that both the courts below fell in error in coming to the conclusion that the plaintiff had no right in the land in question,

inasmuch as, the appellant had produced Saddiq Khan, who had executed the agreement in favour of the plaintiff as PW-4 and as such, there was no

reason for the courts below to hold that the plaintiff has no right in the suit property and therefore, the judgment impugned deserves to be quashed and

set-aside.

I have considered the submissions made by learned counsel for the appellant-plaintiff and have perused the material available on record.

Both the courts below after perusing the material available on record and based on admitted case of the plaintiff that she has purchased the land by

way of an agreement to sell from one Saddiq Khan, came to the conclusion that as the valuation of the property was more than Rs.100/-, the same

could not have been transferred otherwise then by way of a registered sale deed in terms of provisions of Section 54 of the Act. The courts were

further of the opinion that even the agreement to sell, was also required to be registered in terms of Section 17 of the Registration Act as amended in

Rajasthan as it was indicated in the agreement that possession of the land has been handed over to the plaintiff. Further both the courts below

concurrently found that nature of the land in question was ‘Johad Paytan’ and same could not have been allotted by the Gram Panchayat to

Saddiq Khan; the land in question has been allotted by the Colonization Department for setting up a Filter Plant to the PHED, who was though

necessary party, was not impleaded as a party to the suit and therefore, no relief as prayed for could be granted.

The concurrent findings of fact recorded by two courts below cannot be faulted, the findings are based on the oral and documentary evidence

available on record and the legal provisions as noticed herein-before.

Learned counsel for the appellant failed to point out any perversity in the findings recorded by the two courts below. There is no substance in the

second appeal, the same is, therefore, dismissed.