- (1.) The appellant filed suit for permanent injunction against the respondent-Urban improvement Trust,Udaipur (for short 'the UIT') with allegations that the plot no.8 in Suraj Pole, Delhi Gate Scheme, Udaipur was purchased by him in auction on 11.12.1961. The plaintiff deposited 1/4th of total cost of the land which was Rs.19,000/- at the time of auction. Thereafter, the plaintiff deposited balance amount before the UIT. Since there was some delay, therefore, the plaintiff also paid interest over the balance amount which was accepted by the defendant- respondent UIT. The allotment letter was issued in favour of the plaintiff-appellant on 13.2.1962 by the defendant-respondent. The possession of the plot was handed over to the plaintiff on 25.10.1969. Inspite of all above facts, the plaintiff faced with threat of his eviction from defendant U.I.T.'s officials on 7.4.1970, filed the suit for permanent injunction on 11.4.1970.The plaintiff pleaded in his plaint that the size of his plot is 4910 sq.ft 2-1/2 sq.inch. The defendantrespondent submitted the written statement and admitted that the plot in question was allotted to the plaintiff (as plaintiff purchased it in auction) on 13.2.1962. The total area of the plot was 4404-1/4 sq.ft. and not 4910' and 2.6". It is also admitted that the allotment letter for this size of the plot was issued in favour of the plaintiff. According to the defendant, the plaintiff by manipulation changed the figure 4404- 1/4 sq.ft. to 4910 sq.ft. However, the defendant stated that on 7.1.1970 the inspector of the UIT submitted a report that some land has been encroached upon by the plaintiff, upon which on 9.1.1970, the plaintiff was asked to remove the encroachment and a notice was served upon the plaintiff. When the plaintiff did not remove his encroachment then the employees of the UIT went on the plot on 17.1.1970 and removed the plaintiff's encroachment. It is also submitted that since the plaintiff did not comply with the terms and conditions of the allotment letter and did not raise construction in time, therefore, the allotment of plot was cancelled by order dated 8.4.1970. The defendant also submitted that the plaintiff filed the suit against the defendant-UIT but without serving a notice as required under Section 98 of the Rajasthan Urban Improvement Trust Act,1959 (for short "the Act of 1959").
(2.) The plaintiff submitted rejoinder and disputed the contentions of the defendant and again reiterated that he was given possession of the plot measuring 4910 sq.ft. and for that a revised plan was issued and the possession of the same size of the plot was given to him. The trial court framed the issues and it was the specific issue whether the plot size was 4404-1/4 sq.ft. or 4910-1/4 sq.ft. An issue was also framed what is the effect of the cancellation of allotment of the plot and whether the suit of the plaintiff is not maintainable as has been filed without serving notice upon U.I.T. under Section 97 of the Act of 1959. The trial court held that the plaintiff encroached upon 449 sq.ft. of land. However, the defendant already admitted that plot in question was allotted to the plaintiff having measurement 4404-1/4 sq.ft. Therefore, the trial court held that the plaintiff cannot be dispossessed from the plot which was allotted to the plaintiff by the defendant without following due process of law. It will be relevant to mention here that so far as issue about effect of the cancellation of the allotment order for the plot of the plaintiff is concerned, the trial court observed that the plaintiff did not challenge the cancellation order dated 8.4.1970 and did not pay the court fee, therefore, this issue requires no decision and the trial court deleted the issue by saying issue (no.4) cancelled. The trial court also observed that in view of the specific provision under sub-section (4) of Section 98 of the Act of 1959, the suit of the plaintiff was maintainable without notice as it has been filed for mere relief of injunction. Ultimately, the trial court decreed the suit of the plaintiff for the land measuring 4404-1/4 sq.ft. Being aggrieved against the judgment and decree dated 12.11.1975, the defendant-respondent preferred appeal.
(3.) The plaintiff also submitted cross-objections against the finding recorded by the trial court for rest of the land. The appellate court decided issue no.5 and held that the suit of the plaintiff was not maintainable as it was filed without serving notice upon the respondent- UIT under Section 98 of the Act of 1959.The first appellate court also reversed the finding of the trial court on issue no.6, which bars the suit against U.I.T. from any suit or prosecution when the action of the trust, trustee or officer and servant of the trust is done in good faith, with due care, lawfully. The first appellate court held that action of the respondent UIT is protected under Section 97 of the Act of 1959. Ultimately, the appeal of the appellant-respondent was allowed and the suit of the plaintiff was dismissed by the first appellate court by judgment and decree dated 4.9.1981. Hence this second appeal.;