- (1.) APPELLANTS /defendants have preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC') for assailing the impugned judgment and decree dated 19th of September 2012 passed by the learned District Judge, Rajsamand (for short, 'learned trial Court').
(2.) THE respondents plaintiffs laid a civil suit for damages against the appellants for a sum of Rs.1,10,000/ , inter alia, on the ground that a clay built (Kuccha) wall, which was constructed on the Khatedari land of the plaintiffs, was illegally demolished by the appellants by presuming it to be an encroachment. The suit was contested by the appellants and the averments contained in the plaint were denied. In the return, the appellants pleaded that the respondents plaintiffs have designed the suit cleverly for seeking declaration from the Court that part of the 253 bigha land, situated at village Ghanvera (Kanvera), of Araji No.2, measuring 10 bighas, be declared as his Khatedari land, therefore, such a relief cannot be granted to the respondents. Alleging specifically in the written statement that there was illegal encroachment of the respondents on the land in question and the same has been removed by the appellants after following due process of law, it was prayed that the suit merits dismissal. On the basis of pleadings of the rival parties, the learned trial Court settled three issues for determination and the rival parties led their evidence. For substantiating the claim, the respondents examined five witnesses and also produced documentary evidence in the form of order passed by this Court, trace map of the site, authenticated copies of Jamabandi and other ancillary documents for proving their right, title and possession. On behalf of appellants, three witnesses were examined and five documents were produced. The learned Court below, after examining the documentary and oral evidence of the rival parties, has recorded a categorical finding that the wall in question was constructed by the respondents plaintiffs within the four corners of the land owned by them and its demolition by the appellants has caused damages to the respondents. On critical analysis of the evidence of rival parties, the learned trial Court found that even if the action of the appellants is presumed to be bonafide, the damage suffered by the respondents is required to be compensated and while moderately assessing the compensation, the learned trial Court allowed the claim and passed a decree for a sum of Rs.60,000/ only.
(3.) LEARNED Government Counsel Mr. Sandeep Bhandawat has argued that the learned Court below has not thrashed out the matter in its entirety, and appreciation of evidence by the learned Court below is also not proper, and therefore, the impugned judgment is liable to be reversed and set aside. Assailing the impugned judgment, the learned counsel would urge that the entire proceeding for demolition of the wall in question was carried out in accordance with law, and therefore, in these circumstances no motive can be attributed to the authorities of the appellant so as to saddle damages on the State. Mr. Bhandawat has also urged that the learned Court below having found that it was a bonafide action of the appellants, it was not desirable for it to award damages to the respondents.;