SHARMA, J. - (1.) SUBSTANTIAL questions of law that arise in this second appeal are whether the sale of the disputed land by the Municipal Board Sawai Madhopur without the permission and approval of the Collector was proper and whether the documents were rightly construed by the learned District Judge.
(2.) THE plaintiff appellant (for short the plaintiff) instituted a civil suit in the court of Munsif Sawai Madhopur seeking possession of the suit land alongwith the mesne profits and injunction. Learned Munsif vide its decree and judgment dated October 17, 1977 decreed the suit but the learned District Judge Sawai Madhopur allowed the appeal of the defendant respondents (for short the defendants) vide judgment and decree dated July 21, 1979. THE plaintiff in this second appeal has assailed the finding of the learned District Judge. THE defendants have also filed cross objections. I have pondered over the rival submissions and carefully scanned the material on record. The plaintiff instituted the suit in the court of Munsif Sawai Madhopur with the averments that on the northern side of his house there is an open piece of land owned and possessed by him since the time of his ancestors. The defendants house is situated on the eastern side of the said land. The defendants on Feb. 24, 1956 submitted an application in Tehsil Sawai Madhopur to purchase a piece of land measuring 31' 4' x 32' for constructing a Nohra. The defendants thereafter took over possession of the some part of the land. The Municipal Board Sawai Madhopur vide its order dated Feb. 2, 1958 sold the land measuring 39' 6" x 32' 4" out of the land of the plaintiff's chowk. The plaintiffs grand father Amar Lal preferred appeal against the said decision. The Additional Collector Sawai Madhopur vide order dated December 18, 1959 held that the land belonged to Amer Lal and sent the matter for confirmation. The State Government vide its order dated August 5, 1960 confirmed the decision of the Collector. In pursuance thereof the Municipal Board asked the defendants vide its notice dated June 20, 1961 (Ex. 6) to vacate the land which they had taken from the Municipal Board. The defendants however did not vacate it. The plaintiff thereafter filed the civil suit whereas the defendants preferred writ petition against the order of the Government. This court vide order Ex. A. 15 did not accept the prayer of the defendants in respect of quashing of the order of the Collector (Ex. 4) and the Govt. 's order (Ex. 5) but directed that the defendants shall not be dispossessed from the land during the pendency of the civil suit. The civil suit of the plaintiff thereafter was decreed as indicated hereinabove. Learned appellate court has reversed the finding of the trial court after reappreciating the documents. The appellate court has observed that the order of Additional Collector (Ex. 4) is without jurisdiction and since order of State Government (Ex. 5) and Notice dated June 20, 1961 (Ex. 6) of the Municipal Board were based on Ex. 4, they are also void and ineffective. These documents have been discussed by the appellate court in paras 42 to 44 of the impugned judgment. A look at the order of the State Govt. (Ex. 5) demonstrates that directions of the State Govt. were incorporated in it. This document is not based on the observations made by the Additional Collector in Ex. 4. Both the parties were heard by the State Government at length and thereafter a decision was taken and letter of confirmation was issued. This court in the writ jurisdiction also did not quash the orders Ex. 4 and Ex. 5. Thus learned appellate court was not right in holding that order of the State Government (Ex. 5) were void and ineffective. Ex. 16 is the original partition deed and Ex. 16a is the map annexed with the said deed. Ex. 16a-1 is the partition deed from Tehsil record and Ex. 16 A-2 is the map annexed with the petition deed. These documents have been discussed by the appellate court in paras 52, 53 and 73 of the impugned judgment. Learned appellate court observed that some of the land adjacent to the house of the plaintiff belongs to the plaintiff and rest of the land belong to Jain Temple. I have closely scrutinised the documents Ex. 16a and Ex. 16a-1 as well as the site inspection note made by the Munsif on November 23, 1976. The measurements given in documents Ex. 16 A and Ex. 16a-1 find support from the site inspection note. Learned appellate court has overlooked the site inspection note. The observations of the appellate court are against the measurements given in Ex. 16a-2. If Ex. 16 A-2 is so interpreted that only some of the land adjacent to the house of the plaintiff belongs to the plaintiff, it will be fallacious being against the documents Ex. 16 and Ex. 16 A, Ex. 16a-1 and Ex. 16a-2. In my view the measurements given in Ex. 16a-2 is in complete harmony with the details of boundary given in Ex. 16 and Ex. 16a. The measurements given in Ex. 16a and Ex. 16 A 2 cannot be ignored. In order to determine the extent of land and courtyard of the plaintiff the appellate court ought to have looked into Ex. 14 (title deed of the suit land) which defines the extent of area upto the house of Jain Temple. Ex. 14 contains two chowks lying on the South and North of the house of the plaintiff. But the appellate court also overlooked Ex. 14.
(3.) IT also appears that learned appellate court did not properly consider the judgment of this court Ex. A-15 passed in writ jurisdiction. The defendants in the writ petition prayed that orders of Additional Collector (Ex. 4) and State Govt. (Ex. 5) be quashed but this court did not quash the said orders but only stayed the dispossession as the civil suit was pending. In para 73 of the impugned judgment learned appellate court has presumed that the vacant land must be presumed to be Govt. land. In my considered opinion such presumption only arises where there is a dispute between the Govt. and the private person. In the instant case there is a dispute between the private persons and the possession of the plaintiff is evident from the judgment of Tehsil dated July 25, 1952 (Ex. 24 ). Learned trial court had decreed the suit of the plaintiff in view of the established facts that the plaintiff had been in the possession of the land not because it was a vacant piece of land but because it was owned by the plaintiff and his predecessors. The plaintiff has established that he was in possession of the suit land as owner and obtained permission to make construction over it and the defendants had no right to encroach upon the suit land and dispossess the plaintiff. ;