- (1.) BY this Second Appeal under Section 100 C.P.C. the appellant defendant Urban Improvement Trust, Kota has challenged the judgment and decree dated 26th March, 2010 passed by learned Additional District Judge No.4, Kota in Civil Regular Appeal No. 57/2009 whereby the judgment and decree dated 20th May, 2009 passed by Civil Judge (Jr. Div.) (South), Kota in Civil Suit No.91/2006 dismissing the suit, has been reversed.
(2.) BRIEF facts of the case are that the plaintiff respondent filed a civil suit before the trial court for permanent and mandatory injunction for allotting him plot measuring 7.5 meter x 15 meter in Chankyapuri residential scheme. It was mentioned in the plaint that the defendant launched Chanakyapuri residential scheme wherein 196 plots were reserved for allotment to the full time Sharmjivi Patrakar . The plaintiff applied for allotment of the plot in the prescribed application format by depositing Rs.8,000/- towards the registration fee on 29th April, 2003. On 18th August, 2003 the defendant asked for the certificate regarding his being Shramjivi Patrakar which was submitted by him on 22nd August, 2003 after obtaining from the General Manager, Dainik Bhashkar. On 20th September, 2003 the defendant held draw of the lottery for allotment of the plots and only 139 plots were allotted to the Patrakars whereas there were total 196 plots to be allotted to the Shramjivi Patrakars . Rest 57 plots were with the defendant. It was further mentioned that the plaintiff has fulfilled all the required formalities and is entitled for allotment of a plot. Thus, it was prayed that the suit be decreed for permanent and mandatory injunction directing the defendant to reserve residential plot measuring 7.5 meter x 15 meter in Chanakyapuri scheme and to issue allotment for the same. The defendant-appellant filed its written statement and came with this case that the special scheme launched for allotment of residential plots to the Shramjivi Patrakars came to end as soon as completion of the proceedings for allotment of plots. It was not disputed that the plaintiff submitted his application form for allotment of the plot but the same was rejected as he was not having required eligibility. By the letter dated 18th August, 2003 an opportunity was given to him to remove the deficiency in the application form and he submitted another certificate but the allotment committee was not satisfied with the certificate and rejected the application form of the plaintiff. The Expert Committee, constituted by the Chairman of the UIT for the purpose of scrutiny of the forms and allotment consists of representatives of the journalists. It was also submitted that before filing the suit, the plaintiff did not serve notice under Section 98 of the Urban Improvement Trust Act. In additional pleas it was mentioned that it was very well known to the plaintiff that the certificate of his being Shramjivi Patrakar was to be submitted in the prescribed format which he failed to do so. He also failed to produce appointment letter of his being Shramjivi Patrakars on the contrary he is the employee of Advertisement and Printing Department of the news paper. Thus, it was prayed that the suit of the plaintiff be dismissed. On the basis of the pleadings of the parties, the learned trial court framed as many as five issues. To prove his case, the plaintiff Pradeep Kumar appeared himself as PW.01 and got exhibited as many as 21 documents. However, in defence, neither any oral nor documentary evidence was produced by the defendant appellant. After recording evidence of the parties and hearing counsel for the parties, the trial court decided issue nos. 2 to 4 in favour of the plaintiff-respondent but on the basis of the findings on issue no.1 which was decided against plaintiff-respondent, dismissed the suit of the plaintiff respondent vide judgment and decree dated 20th May, 2009.
(3.) BEING aggrieved of the aforesaid judgment and decree of the trial court, the plaintiff-respondent filed first appeal before the first appellate court. The first appellate court after hearing both the sides, reversed the finding of the trial court on issue no.1 and vide judgment and decree dated 26th March, 2010 decreed the suit of the plaintiff-respondent in terms of the prayer made in the plaint. Hence, this second appeal by the defendant-appellant. Submission of the counsel for the defendant appellant is that the trial court has rightly came to the conclusion that the documents filed by the plaintiff-respondent do not prove that the plaintiff is a Shramjivi Patrakars and further the cross examination of the plaintiff also disclosed that the plaintiff respondent has failed to prove his case. ;