MADAN, J. - (1.) THIS second appeal is directed against the judgment of the first appellate court which has confirmed the judgment of the trial court dismissing the plaintiff's suit for permanent injunction.
(2.) THE facts relevant for,deciding the appeal are that as per his case, appellant (plaintiff) has been in continuous possession of his ancestor's land presently situated in Jaipur City Chowkri Haweli Shahar (Hanuman Badri, Amer Road) which is land of Mandir Shri Kala Hanumanji duly surrounded by Pucca Boundary Walls. According to him, the suit land has been in management and continuous possession of his ancestors for more than 300 years; at the time of death of his grand father, his father Mahant Ramnarainji was minor, therefore, during minority of appellant's father, the management of the land, temple and property was managed by Mahakma Punya as mentioned in Misal No. 10 of Samvat year 1986. Further, it is his case that management of the said temple and suit land property was transferred to majority on the appellant's father on attaining his majority on the recommendation of Mahkma Punya by Kefiyat cum order No. 236 dt. 17/12/1906 i. e. dt. 27/2/47, to which acceptance was given by order dt. 18/3/1947 in favour of his father and thereupon after demise of his father, the appellant has been in possession thereof. However, upon proclamation of the Rajasthan Land Reforms & Resumption of Jagir Act, the land in his 1952 (for short Jagir Act), the land in his possession alongwith surrounding walls were accepted as private property description of which is said to have been shown in the plaint, itself. It has also been the case of the plaintiff (appellant) that after death of his father on 26/2/76, the Deputy Collector (Jagir) 07/04/77 declared the appellant as successor of his father and since then he has been in continuous possession of his ancestral suit land and property as successor of Mahant Ramnarain. The dispute arose when suddenly on 25/12/89 the defendants (respondents) namely Jaipur Development Authority (JDA) & Ramcharan of Prachya Vidhyapeeth Museum Trust tried to dispossess the appellant, therefore, suit for permanent injunction was filed, to which no written statement was filed on behalf of the JDA, but Prachya Vidhyapeeth Museum (defendant/respondent No. 2) filed written statement to the plaint. After framing issues, recording the evidence and hearing both the parties, the learned trial court dismissed plaintiff's suit by its judgment dated 03/03/97, against which first appeal was preferred by the appellant but it was also dismissed by the lower appellate court affirming the dismissal of the suit by the impugned judgment. Hence this second appeal. Upon issuing show cause notice as to why this appeal be not admitted and heard finally at admission stage and on service of the show cause notice, learned counsel for the respondents filed their power. Since defendant No. 2 Ramcharan died on 18/5/2000, application to bring his L/rs on record was filed to which reply had been filed to the effect that Ramcharan has not been impleased as respondent in his individual capacity but respondent No. 2 is Shriram Charan Prachya Vidhyapeeth Museum Trust, which was represented through its Chairman Ramcharan, after whose death, new Chairman is Saraswati Sharma. Hence after taking note of submission of learned counsel for the respondent that since respondent No. 2 which is a Trust, it would be better if represented by its new Chairman, this Court by its order dated 27/3/2001 directed that the respondent No. 2 be represented through its newly appointed Chairman. Amended cause title has been filed. Both the learned counsel for the parties were heard on the following substantial questions of law: (1) Whether the courts below have not committed gross error by misconstruing and wrongly interpreting documents (Exs. 1, 4 to 8) and whether these documents related to the suit land? (2) Whether the suit land stood proved to be in continuous possession of appellant and/or his ancestors for more than 300 years and if so, the suit for permanent injunction is maintainable without seeking declaration? (3) Whether by virtue of provisions of Sec. 95 (4) of the Rajasthan Land Revenue Act, 1956 (for short the Land Revenue Act) the land being in possession of appellant's father during proclamation of the Revenue Act, became property of the appellant thereby could not vest in the JDA u/sec. 54 of the JDA Act? (4) Whether plaintiff's suit could have been dismissed under impugned judgments without JDA (defendant) having filed written statement and without denial of plaint averments and in the presence of written statement of the co-defendant whom the JDA had allotted suit land? (5) Whether allotment made by the JDA in favour of co- defendant without vesting suit land in JDA is non-est under the law? (6) Whether in case of the plaintiff being proved in lawful possession of the suit land he could be dispossessed without due process of law under the garb of dismissal of the suit under the impugned judgments? I have perused the impugned judgments of the courts below. Shri R. P. Garg learned counsel for the appellant contended that the appellant was not given any opportunity to lead evidence as Exs. 4, 5 & 6 relating to the suit land and also to establish his continuous possession from the time of his ancestors, and without examining this vital aspect of the matter, the trial Court erred in law in dismissing his suit. It is the appellant's case that aforesaid documents created a right of continuous possession in his favour so also his ancestors, being successor of Mahant Ramnarainji, inasmuch as Exs. 7 & 8 proved factum of continuous possession. Further contention is that as per requirement of S. 54 of the JDA Act, 1982, the suit land never vested in the JDA nor could have been allotted to the defendant No. 2 and, therefore, once no rights were created in favour of defendant No. 2, how could it be assumed that the JDA was competent to create right by transferring or alienating suit land for sale consideration in his favour? It has also been urged that report of Patwari Halka Nahargarh dt 28/2/77 proved the fact that Mahant Ramnarainji & his sons Mahesh Sharma (plaintiff) and Suresh are in continuous possession of suit land duly surrounded by boundary walls & gates.
(3.) THE appellant did also want to prove by tendering in evidence "kifayat" & orders of Mahkma Punia which have been marked as Exs. 4, 5 & 6. Ex. 4 dt 25/8/1929 was an order of the Mahakma Punya in relation to Bhograi of Mandir Kala Hanumanji having been passed in favour of appellant's father and according to Ex. 4, five bighas of land is shown as such, which has also been supported by other subsequent orders. Thus, trial Court misconstrued aforesaid exhibits and therefore, the impugned judgments are perverse. Since the appellant claimed his right, title and interest over the suit land through his father, Shri Garg for the appellant highlighted the order dt 15/2/1977 of the Tehsildar Jaipur District, according to which u/s. 92 of the Revenue Act proceedings though were initiated against father of appellant as to the suit land but dropped, but the courts below failed to examine this aspect of the matter under impugned judgments and in my view also it has resulted in miscarriage of justice and so the impugned judgments are liable to be set aside. As regards Khatoni (record of rights) (Ex-1) which was tendered in evidence by the plaintiff, the trial court misconstrued it by not appreciating the evidence of possession in favour of plaintiff in its true perspective, whereby it stands proved that Khasra No. 169/4 and 191 so also "gair Mumkin abadi" were surrounded by boundary walls and having two gates only. Similarly as rightly contended by Shri R. P. Garg, the courts below erred in law in ignoring statements of Mahesh (plaintiff) (PW-1), Shivprasad (PW-2), Jodharam (PW-3) & Mukesh (PW-4) which proved continuous possession of plaintiff appellant. Hence ignoring such vital aspects while dismissing the suit, the impugned judgments are liable to be set aside. ;