P.K. Banerjee, C.J.
1. This rule is directed against a notice dated 12-2-75 issued by respondent No. 1 to the petitioner's husband in reply to her letter dated 1-2-75 stating therein,-.the land in question is Nazul land and none except the State Govt. or the Urban Improvement Trust are competent to transfer this land. The alleged transfer of this land by Smt. Maina Devi or Moti Singh or Shri Mangal Singh in your name is void as the land is Nazul land. You are not entitled to hold the land as you have no title over the land and therefore you are requested to remove your encroachment over the land within three days of the receipt of this letter. If you fail to do so the Trust shall remove your encroachment over the said land Under Section 203 of the Municipal Act.
Being aggrieved by this notice, the petitioner maintained this application Under Article 226 of the Constitution of India stating therein, inter alia, that one Mangalsingh purchased a piece of land measuring 1500 sq. yards on 7-4-1942 from one Narayan Harijan of Jodhpur and was in possession. The said Mangalsingh subsequently declared that he was a 'Banamidar' for his son Motisingh as he was a minor. Sometime after Motisingh attained majority, the kutcha hat was replaced, it is alleged, by pucca hut and thorny fencing by fence of stone slabs. This construction was a bone of contention between Motisingh and Municipal Council, Jodhpur, on the ground that the construction was illegal and without permission, But later on, by order dated 24-12-1958, the unauthorised construction was allowed to be compounded on payment of Rs. 11/- to the Municipal Council. In 1959 Urban Improvement Trust was established and by notification dated 8-10-1959 and all Nazul lands lying within the Municipal Limit of various cities and towns were placed at the disposal of the Urban Improvement Trust which formerly were at the disposal of the Municipal Council, Board of Corporation. Thereafter, respondent No. 1 took proceedings against Motisingh alleging that he is a trespasser, before the Tehsildar, Revenue, Jodhpur. On receiving the show cause notice of eviction Under Section 91 of the Urban Improvement Trust Act should not be issued and the petitioner should be evicted, Motisingh filed proof and the Tehsildar came to a finding that the vendor of the petitioner was in possession for more than 65 years, and dismissed the complaint of the Urban Improvement Trust, Jodhpur. Thereupon, again the respondent No. 1 Urban Improvement Trust Jodhpur, filed complaint against Motisingh in the Court of Municipal Magistrate, Jodhpur, Under Section 81 of the Urban Improvement Trust Act but that too was withdrawn by the counsel of the Trust and the proceeding was dismissed as withdrawn, on 31-1-1969 Thereafter again proceeding was preferred Under Section 120 of the Urban Improvement Trust Act against Motisingh. Ultimately, however, the Tehsildar held that Motisingh is not a tresparser, and dismissed the application as far back as in 1973. Thereafter the petitioner purchased the property under a registered document and gave notice Urder Section 121 of the Rajasthan Land Revenue Act to the Collector as also to the Urban Improvement Trust. On 1-12-75 again, the husband of the petitioner wrote a letter to the Collector of Jodhpur whereupon a reply as stated in Ex. 9 was rece-ved by the petitioner and hence this application Under Article 226 of the Constitution. In reply to the petition filed by the petitioner, affidavit has been filed by the respondents and in paragraphs 19, 20 and 21, the case of the respondents was in short stated. The case of the respondents, inter alia, is that this disputed question of fact and title cannot be disposed of in Article 226 of the Constitution of India. The respondent No. 1 framed as scheme known as Stadium shopping Centre scheme in 1953 and thereafter, that scheme was sanctioned as no objection was received by the petitioner's predecessor-in-mterest Under Section 38( ) of the Urban Improvement Trust, 1959 and, therefore, it is allegen, the title of the predecessor-in-interest of the petitioner in respect of the land in question was lost. It is further stated that the petitioner's predecessor-in-interest got an allotment of land in Khandiya Kot Stadium Shopping Centre Scheme and after that the petitioner could not have purchased the land in question and, even if purchased, no title can be transferred by the vendor of the petitioner who had no title himself. This, in short, is the case of the respondents.
2. It appears to me, however, that these questions of possession and title, as has been rightly stated in the affidavit, are disputed questions of fact. But the fact remains that the petitioner, and before her the petitioner's predecessor-in-interest, were all along in possession of the property in question for the last 70-80 years, and the respondent 1 and before that the Municipal Council, tried to dispossess the petitioner and the pettioner predecessor-in-interest from the property in question for quite a number of times and as late as in 1973 proceedings Under Sections 90 and 91 of the Urban Improvement Trust Act were filed still, unfortunately for respondent No. 1, the respondent failed. Therefore, the fact remains that the petitioner is in possession of the property in question and before her, the predecessor-in-interest of the petitioner was in possession of the same. Whether the petitioner has title to the property or not, it is not for me to decide in a proceeding Under Article 226 of the Constitution and I cannot decide the same, and, therefore, if the petitioner is to be evicted, she must be evicted in due course of law or by legislative process and not by executive feat. Curiously enough, though a long affidavit has been filed about the scheme under the Urban Improvement Trust Act, that is, Stadium Shopping Centre Scheme, but in the reply given to the letter written on behalf of the petitioner there is no whisper about this as will be found from Ex. 9 dated 12-2-1975 Therefore, in my opinion, the order given by respondent No. 1 for eviction of the petitioner is one by an executive fiat and not by any legislative process or any proper course of law and, therefore, the order impugned cannot be sustained and must be set aside which I hereby do.
3. The rule is made absolute to the extent indicated above. The respondent is restrained from dispossessing the petitioner on the basis of the letter dated 12-2-1975, but this order is without prejudice to the rights of the parties, and in particular respondents No. 1 and 2, to maintain a proper proceeding against the petitioner in a due course of law for eviction of the petitioner from the land, if they are so entitled to and if it is not otherwise barred. The undertaking given by the petitioner is dissolved. There will be no order as to costs.