- (1.) THE present second appeal has been filed by the appellants ­ defendants against the judgment and decree dated 22.02.2011 of the learned Appellate Court of Additional District Judge, Bhadra in Civil Appeal No.01/2005 ­ Surendra Kumar & ors. vs. Ghanshyam Singh, affirming the judgment and decree dated 08.02.2005 of the learned Civil Judge (Jr. Division), Bhadra in Civil Suit No.08/2002 ­ Ghanshyam Singh vs. Surendra s/o Mohar Singh and others decreeing the suit for possession and injunction.
(2.) THE two courts below have decreed the suit for possession and injunction in favour of the plaintiffs ­ respondents on the basis of a Patta issued by the Tehsildar. The right to issue Patta by the Tehsildar was contested before this Court in a batch of ten writ petitions viz. S.B. Civil Writ Petition No. 128/1968 ­ Pannalal vs. The Collector, Ganganagar, and another, which came to be decided by a learned Single Judge of this Court on March 16, 1970 holding that Collector has such right to issue Patta. The relevant extract from the said judgment is quoted below for ready reference : "It may be noted here that the Government while taking decision for regularising the unauthorised occupation of the 'Abadi' land specifically mentioned in the said order that the powers of such regularisation will be exercised by the Tehsildar (Revenue) as the Colonisation work is also being done by him. This order of the Government work is also being done by him. This order of the Government is quite explicit and it empowers Tehsildar to regularise the unauthorised occupation. In view of this specified direction issued by the Government vide its letter No.F3(9)Rev/Col.64 dated 3rd August, 1966, it is difficult to accept the contention of the Additional Government Advocate that the Tehsildar acted without jurisdiction and, therefore, petitioners cannot trace any right from the Tehsildar's orders to challenge the order of the Collector. The order of the Government dated 3.8.1966 clearly indicates that Shri Gangumal was keen to solve the problem of unauthorised occupations and the only solution thought proper by the Government was to regularise such occupations by charging from the unauthorised occupants the price of the land. It is in this background that the Government passed the order dated 3rd August, 1966. In pursuance of these directions of the Government the Tehsildar (Revenue), Bhadra, took the proceedings for regularising the unauthorised occupations. It is, therefore, difficult to say that the Tehsildar had acted beyond his competence while passing the order to regularise the petitioners' occupation. The regularisation, in my opinion, was ordered by the Tehsildar (Revenue, Bhadra, in compliance with the Government order and, therefore, such regularsation cannot be said to be unauthorised. The impugned order (Annexure 2) shows that the Collector passed the order in the exercise of his powers under Section 27 of the Rajasthan Panchayat Act, 1953, read with Rule 273 of the Rajasthan Panchayat and Nyaya Panchayat General Rules, 1961. It may be observed that the proceedings for regularising the unauthorised occupation of the tenants were taken by the Tehsildar in the 'Abadi' lands in Ganganagar District under the orders of the Government issued on 3rd August, 1966, and not in exercise of any power conferred on him under the Rajasthan Panchayat Act. The order of the Tehsildar cannot, therefore, be quashed by the Collector by taking action under the provisions of the Rajasthan Panchayat Act. The contention of the petitioners that the Collector had no authority to revise the orders of the Tehsildar under the provisions of the Rajasthan Panchayat Act, appears to be correct. It is obvious that the Collector before passing the impugned order did not serve any notice on the petitioners or other unauthorised occupants, whose names were taken on the list annexed to the order passed by the Tehsildar. This exparte action taken by the Collector is clearly violative of the rule of natural justice. It is now well settled that no one should be deprived of his right without giving opportunity to him to state his case before the authority passing the order. In the present case the petitioners, who had already deposited the sale price along with the nominal penalty, and who had also made certain constructions on the lands after obtaining "'Pattas' in pursuance of the regularisation proceedings taken by the Tehsildar were asked to vacate the land under the orders of the Collector without affording any opportunity to them to place their case before the Collector. It is also the evidence of the petitioners that the Sub-Divisional Officer (Revenue), Nohar, who had conducted enquiry into the proceedings for regularising their allotment did not allow the petitioners to be associated with that enquiry. It is said that the report of the Sub-Divisional Officer (Revenue), Nohar, became the basis for the Collector to pass the impugned order. In these circumstances the result of the enquiry made by the Sub-Divisional Officer and the order passed by the Collector on that basis get vitiated because they suffered from the vice of violating the principles of natural justice. Such order cannot, therefore, be upheld by this Court. For the reasons mentioned above the impugned order (Annexure 2) passed by the Collector, Ganganagar, on 15.1.68 is, therefore, quashed. The petitioner in each case shall get costs from the Stage Government. In the present second appeal filed by the defendant Virendra Kumar and others represented by learned counsel for the defendant ­ appellant, Mr. J.L. Purohit, Sr. Advocate, they have filed an application under Order 41 Rule 27 CPC in this Court on 13.04.2011 along with which certain fresh documents are sought to be placed on record, inter alia, documents relating to the allotment of a residential plot No.187 in Sector 2/L in Mandi Bhadra in Low Income Group Housing Scheme ("LIGH Scheme" for short), Tehsil Bhadra, district Ganganagar allotted by the Secretary, Bhakra Mandi Development Board, Hanumangarh on 22.03.1961 in pursuance of the application of Mohar Singh s/o Rajkaran ­ defendant Virendra Kumar father on 17.01.1961 and a copy of the such notice dated 22.03.1961 along with receipt of a payment made by said Mohar Singh showing the receipt of Rs.1500/- by Treasury and same are sought to be adduced as evidence now at this stage and learned counsel submitted that this allotment pertains to the suit land in question. He also submitted that even Municipal Board, Bhadra has supported the private defendants in this regard.
(3.) THE courts below have concurrently decreed the suit for possession and eviction in favour of the plaintiff ­ respondents. Essentially the findings of the courts below are the findings of fact based on relevant evidence adduced by the plaintiffs. The authority of Tehsildar, who has issued patta in favour of the plaintiff ­ respondents is beyond the pale of doubt, in view of the aforesaid judgment of this Court quoted above. The efforts of the defendants ­ appellants at this stage to introduce 1961 documents issued in favour of their father, Mohar Singh in respect of a residential plot No.187 in Sector 2/L in Mandi Bhadra in Low Income Group Housing Scheme ("LIGH Scheme" for short), Tehsil Bhadra, district Ganganagar allotted by the Secretary, Bhakra Mandi Development Board, Hanumangarh on 22.03.1961, seeking to mix up the same with the suit land, is hardly a ground to upset the findings of the courts below, at this stage. These 1961 documents, if at all they pertained to the suit land, ought to have been produced by the defendants during trial. If the defendants have failed to produce the same before the trial court without assigning any reasonable cause for such, a huge delay to show that despite due diligence, they could not produce these documents before the learned trial court at the relevant time and that cannot be appreciated.;