Nisha Gupta, J. - (1.) THE instant civil second appeal has been preferred against the judgment & decree dated 22/08/1991 passed by Additional District Judge No. 1, Bharatpur by which, he dismissed Civil Regular Appeal No. 36/1986 filed by the defendant -appellants and upheld the judgment & decree dated 24/08/1976 by which, the Additional Munsiff & Judicial Magistrate First Class No. 1, Bharatpur has decreed Civil Suit No. 71/1967 filed by the plaintiff -respondents.
(2.) THE facts giving rise to this appeal in brief are that the plaintiff -respondents filed a suit for permanent injunction against Kishanchand and Municipality. Kishanchand died during pendency of the suit and his legal representatives were brought on record. One of the legal representatives, Devi Bai also expired and her name was got deleted during pendency of the suit. It was alleged by the plaintiff that the plot in question was purchased by the plaintiff's father on 30/03/1967 and he is the owner of the plot but now the Municipality is going to sell the property showing it to be the nazul land in favour of defendant -appellant No. 2 Parmanand and his mother. It has also been alleged that Nagar Palika gave permission for construction and no notice has been issued prior to entering the property as nazul land and suit for injunction has been filed in the above background. Defendant -appellant No. 1 Nagar Palika, Bharatpur filed written -statement on the ground that it is a nazul land and notices have been issued but no objections have ever been received and plaintiff -respondent has no right, title and interest in the property. The suit is barred as no notice u/S. 271 of the Rajasthan Municipalities Act, 1959 (shall hereinafter be referred to as the "Act of 1959") has been given. Suit for permanent injunction is not maintainable as there is no prayer for declaration. Suit was decreed by the court below. Appeal has been filed by all the defendants, which was dismissed in default vide order dated 23/11/1979. Thereafter, only appellant No. 2 moved an application for restoration and appeal has been restored vide order dated 20/02/1980 by imposing a cost, which was paid and, thereafter, appeal has again been taken on record. Thereafter, plaintiff has raised objection that Nagar Palika has not moved any application for restoration. Hence, order has become final against Nagar Palika but that was dismissed. Revision has been filed, which has also been dismissed and, thereafter, civil regular appeal has been dismissed. Hence, this second appeal. The appeal has been admitted on 30/10/1995 on the following substantial questions of law: - "1. Whether the first appellate court has misread the record and committed an illegality in holding that the first appeal of Nagar Palika, Bharatpur had been dismissed and on this count, the decree passed by the first appellate court stands vitiated? 2. Whether the first appellate court has wrongly observed in its impugned judgment that the Nagar Palika Bharatpur had preferred revision petition before the High Court against the order dated 13.8.1981 and that the same was dismissed vide order dated 2.12.1981 and on this count the decree passed by the first appellate court stands vitiated? 3. Whether the first appellate court has misconstrued the provisions of order 41 rule 4 C.P.C. and committed an illegality in holding that in this instant case when appeal of one of the appellant was dismissed other appellants did not have any right to raise objection on behalf of such appellant u/O 41 rule 4 C.P.C.?
(3.) WHETHER the suit land was a Nazul land and the same vested in the Nagar Palika, Bharatpur and as such the sale of the dispute land in favour of the appellant Permanand was valid - 4. Contention of the appellants is that observation of the first appellate court is against the record. There is no narration of fact in the order dated 20/02/1980 that appeal against the appellant No. 1 has been dismissed for non -prosecution and has become final. Hence, this is misreading of the fact and findings of the first appellate court are perverse as the first appellate court has also observed that against the order dated 13/08/1981 by which, application filed by the plaintiff has been dismissed; revision petition has been filed by the Municipality, whereas in fact, revision has been filed by the plaintiff -respondent, which has been dismissed. Hence, there is a clear misreading of facts. Appellate court has not rightly interpreted the provisions of Order 41 Rule 4 CPC. Admittedly, all the appellants were having common grounds in appeal and in appeal filed by one of them, the court may consider the findings of the court below. Originally, appeal was preferred by both the appellants. Grounds were common to both the appellants and vide order dated 20/02/1980, whole of the appeal was restored. Hence, protection under Order 41 Rule 4 CPC was available to the appellant -Municipality also as, grounds were common to all the appellants and appeal could have been decided for both the appellants irrespective of the fact that Municipality did not move any application for restoration and first appellate court has not considered the objection as regards to Section 271 of the Act of 1959. Initially, the suit was based only on possession but the appellate court vide order dated 28/02/1973 remanded the matter back to the trial court to consider the point of ownership also and suit has become suit for title. No title has been shown by the respondent inspite of this, suit has been decreed. Alternate remedy u/S. 285 of the Act of 1959 was available to the respondent and suit for injunction was barred. There is no document to show the title of Mst. Chandania hence, judgment deserves to be set -aside. Per contra, contention of the respondent is that when Municipality, appellant No. 1 has not moved any application for restoration, appeal has not been restored qua the appellant. Judgment of the appellate court has become final. There is no evidence to show that the property is nazul land. Ex.1 sale -deed clearly proves title of Mst. Chandania and courts below have concurrently held so hence, no interference is needed in this second appeal.;