- (1.) HEARD learned counsels for the parties.
(2.) THE appellant-defendant, Sharvan Singh S/o Dan Singh, has filed the present second appeal against the concurrent decree of two courts below holding that the defendant-appellant had encroached on the portion of land allotted to the Superintendent, Post Office, Sirohi to the extent of 52' in length and 3+7/2 width, total 260 square feet in village Anadara, Tehsil- Reodar District Sirohi. The courts below have, therefore, directed by mandatory injunction, the defendant-appellant to remove the encroachment on the said 260 square feet land and hand-over the vacant possession to the plaintiff- Superintendent, Post Office, Sirohi. The learned trial court of Civil Judge (Jr. Division), Reodar has decreed the plaintiff's suit for mandatory injunction being Civil Suit No.12/1999- Superintendent, Post Office, Sirohi Vs. Sharvan Singh vide its judgment and decree dated 31.08.2006. The learned lower appellate court of District Judge, Sirohi vide the judgment and decree dated 19.02.2009 has dismissed the appeal filed by the defendant-appellant being Civil Appeal No.24/06- Sharvan Singh Vs. Superintendent, Post Office, Sirohi and affirmed the judgment and decree of the learned trial court. Mr. J.L. Purohit, Sr. Advocate assisted by Mr. Rajeev Purohit, learned counsel for the appellant-defendant urged that both the learned courts below have erred in decreeing the suit filed by the plaintiff-respondent, Superintendent, Post Office, Sirohi, and substantial question of law arises in the present second appeal viz. the suit could not have been filed by the Superintendent, Post Office and it could only be filed through Union of India and not in the official capacity of the Superintendent of the Post Office. In support of his contention, he relied upon a decision of Hon'ble Supreme Court in the case of Chief Conservator of Forests, Government of A.P. Vs. Collector & Ors. reported in (2003) 3 SCC 472 (para 7). He also submitted that "Patta" issued in favour of plaintiff-respondent, exhibited and proved before the courts below, could not have been issued by the "Gram Sabha" under the provisions of Rajasthan Gram-dan Act, 1971, (for short, hereinafter referred to as 'Act of 1971'), and that document being not even registered, no reliance could be placed by the courts below on that "Patta" and, therefore, the decree deserves to be set aside as the substantial question of law arises in the present second appeal requiring consideration by this Court. On the other hand, Mr. Anirudh Purohit for Mr. V.K. Mathur, learned counsel for the plaintiff-respondent urged that the aforesaid Act of 1971 is a special law, having overriding effect over any other law contrary to the purpose of the said Act and the said Act has been enacted by the State with the assent of the President of India on 03rd of August, 1971, an Act to amend and re-enact the law relating to the establishment of Gramdan Villages in pursuance of the Gramdan movement initiated initiated by Acharya Vinoba Bhave, the constitution of Gram-Sabha therefor and matters connecting therewith. He further urged that "Gram-Sabha" constituted under Section 3 Chapter IV of the said Act of 1971 has been vested with necessary and incidental powers in Sections 26 to 31 for vesting of the common lands in Gram Sabha/s, the power to grant lease given to the Gram Sabha and other incidental powers. He also submitted that since the "Patta" was issued in favour of plaintiff- Superintendent, Post Office, Sirohi only, the plaint was correctly and rightly filed by him and it was not necessary to file the suit/plaint through the Union of India, as independent powers have been conferred upon the Gram- Sabha to maintain the common lands of a particular village, which is with the Gram Sabha under the "Gramdan Movement" initiated at the time of Acharya Vinoba Bhave.
(3.) HE further urged that in terms of Section 42 of the Act of 1971, the stamp duty and registration fee is not required to be paid on the Patta/s or lease-deed/s issued by the Gram Sabha, therefore, Patta issued in favour of plaintiff- Superintendent, Post Office, Sirohi cannot be questioned on the ground that it is not registered. HE, therefore, submitted that these are the findings of facts, which do not give rise to any substantial question of law. Having heard learned counsels for the parties at length and upon careful perusal of the reasons assigned in the judgments and decree/s of both the courts below and, so also, upon perusal of provisions of special enactment known as Rajasthan Gramdan Act, 1971, this Court is of the opinion that no substantial question of law arises in the present appeal requiring consideration by this Court under Section 100 of CPC. Both the courts below have concurrently held on the basis of title in favour of plaintiff- Superintendent, Post Office, Sirohi, which was rightly issued in favour of plaintiff and since no objection to this effect was raised before the learned trial court, the suit filed by the plaintiff in his own official capacity, can be maintained in view of special nature of the Act and particularly Section 4 of the Act of 1971 providing for its over- riding effect, this Court is satisfied that locus of the plaintiff, Superintendent, Post Office, Sirohi cannot be validly assailed. The Hon'ble Supreme Court in the case of Chief Conservator of Forests (supra) dealing-with Article 300 of the Constitution of India, Chapter III r/w Section 79 of CPC, which provides that the a suit by or against the Government shall be in the case of suit by or against Central Government, the Union of India. It is true that Postal Department being a Department of Union of India, is the part and parcel of the Union of India, however, in view of special law enacted for special purposes having overriding effect, this objection is not sufficient to upset the decree against the appellant-defendant for removal of his encroachment over Post Office land. More so, when the learned trial court has held and rightly so, in the opinion of this Court that since no objection was raised before the learned trial court by the appellant-defendant, the same cannot be raised now. ;