PEPI DEVI Vs. MUNICIPAL BOARD, PALI

JUDGEMENT

(1.) THIS civil second appeal under Section 100 of the C.P.C. has been preferred by the appellants -plaintiffs being aggrieved by the judgment and decree dated 20.12.2011 passed by District Judge, Pali in Civil Appeal No. 52/2007 whereby the learned lower appellate court dismissed the appeal filed by the appellants -plaintiffs and affirmed the judgment and decree dated 30.08.2007 passed by learned Additional Civil Judge (Junior Division) No. 1, Pali in Civil Original Suit No. 5/2006, whereby the learned trial court dismissed the suit for specific performance of contract filed by the appellants -plaintiffs. The brief facts of the case as set out in the memo of appeal are that husband of the appellant No. 1 and father of the appellants No. 2 to 6, Shri Madan Singh had been living in the premises situated at Adarsh Nagar Extension Colony, Pali since 1965, the details of which have been given in para no.1 of the plaint. As per the case of the plaintiffs -appellants, they are in possession of the said property since 1965 and for that purpose, even notice (Ex.P/3) was issued by the respondent -defendant -Municipal Council to deposit a sum of Rs. 880/ - for execution of the sale -deed and late Madan Singh deposited in the sum of Rs. 250/ - and Rs. 880/ - vide Ex.P/3 & 5 in the month of June, 1965. He further deposited Rs. 5000/ - vide Ex.P/6. Thus, the entire amount of allotment was deposited for the said plot. However, on 2.7.1984, a communication was issued by the respondent -defednant Municipal Board in regard to the plot in question inter alia stating that certain documents are missing in the File No. 226/65 of the Municipal Board, Pali, therefore, Patta was not being issued to him. Hence, they asked late Madan Singh to deposit compensation of Rs. 5000/ -. Late Madan Singh disputed the recovery of compensation on the ground that it was not the mistake on his part that certain papers were missing from the file. Apprehending eviction by the defendant -Municipal Board, the appellants filed a civil suit No. 66/1985 initially for permanent injunction restraining the respondents not to dispossess them without following due process of law. The said suit was decreed in favour of the appellants vide order dated 26.10.2005. The defendant council also filed a criminal complaint under Section 420, 467, 468 & 471 IPC, in which, the appellants were acquitted vide order dated 23.2.2007. It has been stated that earlier, the plaintiff had served a notice dated 20.12.1985 to the defendant, in response to which, they submitted that the matter is pending in the court, therefore, they are unable to execute the sale -deed. Hence, the appellants -plaintiffs filed the suit for specific performance of contract against the defendant on 29.9.1988.

(2.) THE defendant filed a written statement denying the averments made in the plaint. They averred that the property in question belongs to Municipal Board, Pali. The encroachment made by the plaintiff over the suit property was removed on 29.9.1985 and 1.10.1985. The possession of the plaintiff before 1965 over the suit property was denied. It was averred that the property in question has not been sold to the plaintiff because it was registered in the name of Pukhraj and patta whereof has been issued on 17.2.1966. The appellant -plaintiff made illegal encroachment by preparing forged documents. Therefore, the suit filed on the basis of forged documents is liable to be dismissed.

(3.) AFTER hearing the arguments of the parties, the learned trial court dismissed the suit filed by the appellants -plaintiffs vide the impugned judgment and decree dated 30.08.2007. Being aggrieved by the same, the appellants -plaintiffs preferred an appeal before the learned lower appellate court. The said appeal has been dismissed vide the impugned judgment and decree dated 20.12.2011.