PRASHANT KUMAR AGARWAL, J. - (1.) THE plaintiff -appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 20.7.2010 passed by the Additional District Judge No. 2, Jaipur District, Jaipur in Civil Regular Appeal No. 4/2010 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 28.4.2010 passed by the trial Court i.e.
(2.) Additional Civil Judge (Junior Division) No. 5, Jaipur District, Jaipur in Civil Suit No. 88/2009 whereby the learned trial Court dismissed the suit for permanent injunction filed by the plaintiff -appellant. Brief relevant facts for the disposal of this appeal are that appellant filed a suit for permanent injunction against the respondent on 23.9.2008 with the averments that on the south side of his allotted and constructed house there is a plot of land in which the appellant has ownership and possessory rights since the time of his ancestors i.e. for last 40 years on which house of the appellant was situated but the same was destroyed in the flood of the year 1981. It was further averred that the appellant is in the use and occupation of this plot of land as he stores his fire -woods and stones on it and he has also grown seven huge babool trees on it. It was further submitted that respondent has no right in the disputed land but it is intending to dispossess the appellant from it. It was also averred that appellant has access to his allotted and constructed house through this land only. It was prayed that respondent may be restrained by way of permanent injunction not to interfere in the peaceful use and occupation of the land in dispute and not to dispossess him from it. In the written statement it was averred by the respondent that a "Patta" was granted to the appellant on 27.2.2002 under the provisions of the Rajasthan Government Grants Act 1961 for a piece of land on which the appellant has constructed his house but land in dispute which is situated to the south side of this house does not belong to appellant and he does not have possession on it. It was also averred that the land in dispute vests in the respondent -Municipality and it is a part of a public way and a public chowk and is for the use of general public. It was further averred that the land in dispute is a vacant land and on it a CC Road has already been constructed before the institution of the suit. The averments made by the appellant in the plaint were specifically denied by the respondent and it was also averred that in the garb of present suit the appellant intends to trespass on the land in dispute. In the additional pleas it was pleaded that before the institution of the suit notice required under Section 271 of the Rajasthan Municipality Act has not been served upon the respondent and in absence of that the suit is not maintainable. It was further objected that without seeking relief of declaration mere suit for permanent injunction is not maintainable. On the basis of pleadings of the parties necessary issues were framed. In support of his case appellant produced oral as well as documentary evidence whereas respondent did not produce any evidence. The learned trial Court after hearing both the parties vide judgment and decree dated 28.4.2010 dismissed the suit. Under Issue No. 1 it was found by the Court that the appellant has failed to prove his title as well as settled and legal possession. Under Issue No. 2 it was held that as the appellant has failed to prove his title and possession on the disputed land and he has not sought the relief of declaration and the respondent being the true owner of the land in dispute, a decree for permanent injunction cannot be passed in favour of the appellant. Feeling aggrieved, the appellant filed appeal under Section 96 CPC before the first appellate Court and the same was dismissed vide impugned judgment and decree dated 20.7.2010. The first appellate Court upheld and affirmed the each and every finding arrived at by the trial Court. Still dissatisfied, the plaintiff -appellant is before this Court by way of this civil second appeal. Assailing the judgments passed by both the Courts below learned counsel for the appellant has submitted as below: (i) There is ample un -rebutted evidence both oral and documentary available on record indicating long and uninterpreted possession of the appellant over the land in dispute but both the Courts below have not considered the evidence in a proper perspective rather they have misread it and, therefore, the findings regarding possession of the appellant over the land in dispute becomes illegal and perverse. (ii) Possession of the appellant over the land in dispute is also proved on the basis of admitted documents Ex. 2 & 3 but these documents have also been misread and mis -interpreted by the Courts below resulting into perversity and illegality regarding possession of the appellant over the land in dispute. (iii) Once it is held that appellant has possession over the land in dispute presumption of ownership in his favour has to be drawn under Section 110 of the Evidence Act and it was for the respondent to prove that the appellant is not the owner of the land in dispute but admittedly no such evidence has been produced by the respondent but even then both the Courts below have held that the appellant has failed to prove his title over the land in dispute. (iv) It is well settled that even a true owner of a land cannot dispossess a trespasser without due process of law. In the present case if for the sake of arguments it is admitted that the land in dispute vests in respondent -Municipality but even then the appellant cannot be dispossessed from the same without following the procedure provided in the Rajasthan Municipalities Act. In the present case it is an admitted fact that no notice has been issued to the appellant for vacating the land in dispute and the procedure provided in law to evict has not been followed and in absence of the same the suit was liable to be decreed. (v) In absence of rebuttal evidence on behalf of the respondent, the suit for permanent injunction filed by the appellant was liable to be decreed even in absence of relief for declaration but that aspect of the matter was also not considered by the Courts below in a right perspective. On the basis of the submissions made it was prayed by the learned counsel for the appellant that necessary substantial questions of law may kindly be framed and appeal may be admitted for final hearing. In support of his submissions, learned counsel for the appellant relied upon the cases of Rame Gowda (Dead) By Lrs. Vs. M. Vardappa Naidu (Dead) by Lrs. & another reported in : (2004) 1 SCC 769, P. Chandrasekharan & another Vs. S. Kanakarajan & another reported in : (2007) 5 SCC 669, Abdul Latif & Ors. Vs. Nagar Vikas Pranyas, Udaipur reported in AIR 2006 (Raj.) 215, Ravindra Tyagi Vs. State of Rajasthan & Ors. reported in : AIR 2006 (Raj.) 220, Kashmir Singh Vs. Harnam Singh & Anr. reported in, RLW 2008 (4) 3352 (SC), Dubaria Vs. Har Prasad & Anr. reported in, 2010 CDR 290 (SC), Corporation of the City of Bangalore Vs. M. Papaiah & another reported in : AIR 1989 (SC) 1809 and Chief Conservator of Forests, Govt. of A.P. Vs. Collector and ors. reported in : AIR 2003 (SC) 1805.
(3.) ON the other hand learned counsel for the respondent by supporting the judgment and decree passed by both the Courts below submitted that the appellant came with a specific case that he is title holder of the land in dispute and is also in long possession of it but he has failed to prove both of his contentions and the Courts below have concurrently found that the appellant has failed to prove his title as well as possession and such finding of fact cannot be interfered in this second appeal. It was also submitted that under the relevant provisions of the Rajasthan Municipalities Act there is presumption that all lands situated within the limit of a Municipal area vest in the Municipality unless contrary is proved by the person claiming title over it but in the present case the appellant has failed to prove his title over the land in dispute and, therefore, the Courts below have rightly held that the land in dispute vests in the respondent. It was further submitted that there is no pleading about acquiring of title in the suit property by adverse possession and in absence of that both the Courts below have rightly held that the appellant has failed to prove his title over the land in dispute by way of adverse possession. It was also submitted that Patta (Ex. 3) was issued by the respondent on the basis of site plan (Ex. 2) filed by the appellant and in Ex. 2 it was mentioned that in the south side of the land for which the Patta has been applied, a land is situated which is in the possession of the appellant and that fact was repeated in the Patta (Ex. 3) also but that does not mean that the respondent -Municipality has admitted that over the land in dispute the appellant has ownership and/or possessory right. In the facts and circumstances of the case, it cannot be said that the Courts below have not considered the evidence available on record in a proper perspective or they have misread it. It was further submitted that both the Courts below have committed no illegality or perversity in dismissing the suit filed by the appellant and no substantial question of law is involved in the appeal requiring further consideration of this Court. In support of his submissions learned counsel for the respondent relied upon the case of Tara Chand and anr. Vs. Paltu Nath and Ors. reported in : 2006 WLC (Raj.) UC 475. Having considered the submissions made on behalf of the respective parties and also going through the record made available for my perusal as well as the relevant legal provisions and the case law relied upon by the parties, I do not find any illegality and perversity in the judgments passed by the Courts below and I also find there is no substantial question of law involved in this second appeal requiring further consideration of this Court under Section 100 CPC. The appellant came with a specific case that he is title holder of the land in dispute and is also in long possession of it but both the Courts below on the basis of pleadings of the parties and evidence available on record have concurrently held that the appellant has failed to prove his contentions. It cannot be said that the conclusions arrived at by the Courts below are result of non -consideration of the material evidence available on record or misreading of the same. Merely because no evidence in rebuttal has been produced by the respondent, it cannot be said that from the evidence produced by the appellant both of his contentions are liable to be accepted as the burden of proof was solely upon him to prove his contentions and even if no evidence in rebuttal has been produced by the respondent the contentions made on behalf of the appellant cannot be said to be proved. It cannot also be said that the Courts below have misread or mis -interpreted Ex. 2 and Ex. 3 and it has resulted into perversity and illegality regarding the finding of possession of the appellant over the land in dispute. From the evidence available on record it appears that the appellant claiming to be a landless person filed an application for allotment of land before the respondent -Municipality under the provisions of Rajasthan Municipalities Act and alongwith that application site map Ex. 2 was filed by him in which it was mentioned that on the south side of the land for which the application for allotment has been filed by him a piece of land (the land in dispute) is situated over which he has possession and on the basis of that fact in the "Patta" Ex. 3 issued by the respondent -Municipality, it was repeated that on the south side of the land for which the "Patta" has been issued there is a piece of land which is in the possession of the appellant but merely by that reason it cannot be held that the respondent has admitted that the land in dispute is in the title and legal possession of the appellant. The Courts below have rightly held that mere on the basis of Ex. 2 and Ex. 3 it cannot be said that there is clear admission on the part of the respondent in regard to title and possession of the appellant in the land in dispute. Otherwise also, according to appellant himself he is using the land in dispute for storing and collecting his fire woods and stones and he has also grown some huge babool trees on it but if for the sake of arguments it is admitted that the appellant is in use of the land in dispute for the purposes aforesaid even then it cannot be said that the appellant is in settled and legal possession of it. The findings of the Courts below are legally sustainable. Hon'ble Supreme Court in the case of Rame Gowda (Dead) By Lrs. Vs. M. Vardappa Naidu (Dead) by Lrs. & another (supra) has held that an occupant in settled possession cannot be dispossessed without recourse to law. According to Hon'ble Court the settled possession must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment by the trespasser. In my opinion if a person is in occupation and possession of land of any other person temporarily without any objection even for a long period the same cannot amount settled and legal possession thereof. According to Hon'ble Supreme Court a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. In the present case, in absence of any title vesting in the appellant it will be presumed that the land in dispute belongs to respondent -Municipality as admittedly it is situated in the area of the respondent -Municipality. In this situation Section 110 of Evidence Act is also not helpful to the appellant as presumption of title can be drawn only when it is held that the person claiming possession has proved his settled and legal possession over the land in dispute and as in the present case the appellant has failed to prove that he is in the possession of the land in dispute, the presumption cannot be raised in favour of the appellant. There is another aspect of the matter in the present case and that is in the form that appellant himself claiming to be a landless person applied to the respondent -Municipality for the allotment of land situated to the north side of the land in dispute and the respondent treating the appellant to be a landless person allotted that land and in this regard admittedly "Patta" Ex. 3 was issued in favour of the appellant for a land measuring 248.68 sq. meters. Thus, at one hand the appellant claimed himself to be a landless person and applied for allotment of land and at the time same time on the other hand he is saying that the land in dispute vests him and he is title holder and in possession of the same. A person claiming to be a landless person after getting benefit of allotment on that basis cannot be allowed to say that he is owner of some other land. In the present case, it is for the respondent -Municipality to look into the matter and take appropriate steps whether the allotment of land already made in favour of the appellant and the "Patta" issued in his favour vide order dated 27.2.2002 can be cancelled in view of the fact that the appellant has claimed ownership and possessory right in another land i.e. the land in dispute. It appears that by way of 'Patta" Ex. 3 a land measuring 248.68 sq. meters was allotted to the appellant in pursuance of the order of the State of Rajasthan dated 15.9.1983. It is also for the respondent -Municipality to consider whether such a big plot of land can be allotted to a person claiming to be a landless person under the provisions of the relevant law. Consequently, the appeal being meritless is, hereby, dismissed at the admission stage itself with costs throughout. The stay application also stands dismissed.;