Mohammad Rafiq, J. - (1.) THIS is plaintiff's second appeal under Sec. 100 of the Code of Civil Procedure preferred against the judgment and decree dt. 16.02.2008 of learned Additional District Judge No. 2, Bharatpur, in Civil Regular Appeal No. 58/2004, whereby judgment and decree dt. 20.02.2004 of learned Additional Civil Judge (Sr. Div.) No. 4, Bharatpur, dismissing the Civil Suit No. 115/1999, has been affirmed and the appeal filed by him has been dismissed. Appellant filed a suit for permanent injunction against the respondents seeking a direction to restrain them from dispossessing him from the land in question. The appellant claimed that a patta was issued in his favour of abadi land situate in village Astawan, Tehsil Kumher, District Bharatpur on sale consideration of Rs. 1855/ - on 12.09.1989 and thereafter gram panchayat granted him permission to raise construction. The plaintiff -appellant raised construction over it. The cause of action to file the suit arose when Tehsildar, Kumher, issued a notice under Sec. 91 of the Rajasthan Land Revenue Act for dispossession. Learned trial Court dismissed the suit. The trial Court framed as many as five issues and decided all of them against the plaintiff -appellant holding that the patta of the land in dispute was in fact issued on a Government land, which was recalled. The sewai -chuck land of Khasra Nos. 692 and 693 was allotted to the Government Primary School, Astawan. The plaintiff trespassed over this land. The alleged patta (Exhibit -1), produced by the plaintiff, was in fact in the name of one Yogendra Singh. The plaintiff claimed that he had exchanged his land with that of Yogendra Singh, but he failed to produce any such exchange deed or written document showing such exchange as required by Section 118 of the Transfer of Property Act. Learned trial Court held that the land was a revenue land, therefore, the revenue Court would have the jurisdiction with regard thereto. The appellate Court affirmed the judgment and decree passed by learned trial Court.
(2.) LEARNED counsel for the appellant argued that the plaintiff -appellant, apart from producing himself as PW -1, also produced Satya Prakash Sharma as PW -2 and Hari Singh as PW -3, and got three documents exhibited. The evidence that he produced proved his possession over the disputed land. However, the Court below has dismissed the suit in a mechanical manner and has not properly appreciated the evidence. Learned counsel argued that a similar suit was filed by one Amar Singh before the same Court with regard to land situated in Khasra Nos. 692 and 693 to whom also notice under Sec. 91 of the Rajasthan Land Revenue Act was issued but in his case a decree was passed by learned trial Court and in the present case the Court below has applied a different yardstick. It was argued that once a patta was issued by Gram Panchayat, the remedy for the Tehsildar was to challenge the patta by filing the revision petition before the Collector. It was argued that DW -1 Jawahar Singh, who appeared as a witness of the defendant, failed to produce any documentary evidence to prove that the land has been allotted to the school. It was argued that in the meaning of Section 118 of the Transfer of Property Act, the appellant could have exchanged his plot with that of Yogendra Singh by oral agreement due to confidence with each other and both of them have not any grievance. The Court below should not have discarded such piece of evidence. Having heard learned counsel for the appellant and perused the impugned judgment, this Court finds that the appellant has failed to prove his title over the disputed land. The so -called allotment by Gram Panchayat was also not made in his favour. He produced a copy of patta issued by Gram Panchayat. The plaintiff -appellant claimed that the Gram Panchayat issued a patta of the land in the size of 15'x30' and also gave permission to raise construction vide Exhibits -1 and 2 but that patta was not issued in the name of the plaintiff. The plaintiff admitted in his cross -examination that patta was issued in the name of Yogendra S/o Hari Singh and that this land was allotted to the school by the Government and that he was served with a notice under Sec. 91 of the Rajasthan Land Revenue Act for dispossession. He also admitted that he filed revenue suit and the suit was decreed but he failed to produce any decree of the revenue Court on the record. When a suggestion was put to him as to when the revenue suit was dismissed, he denied such suggestion.
(3.) WHEN the appellant admitted that he filed the revenue suit, on his failure to produce copy of the decree of the revenue Court, an inference has to be drawn against him upon his failure to produce the decree in that revenue suit, that the said suit has been dismissed. Besides that, the size of the plot also did not match with the land mentioned in the patta because its size was 151/2X 111/2. The patta was not a registered and therefore it has not been held to be admissible in evidence. There was no document exhibited for exchange of the plot between two parties. The alleged oral exchange could not be accepted in law because the land in dispute was never allotted to the plaintiff -appellant. Moreover, the defendant -respondents claimed that it was allotted to the Government school.;