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HussaIn Vs. Babulal and Shivraj and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 201 of 1970
Judge
Reported in1980WLN(UC)188
AppellantHussain
RespondentBabulal and Shivraj and ors.
DispositionAppeal allowed
Cases ReferredDhanraj v. Hariram
Excerpt:
rajasthan panchayat (general) rules, 1954 - rule 37a--sale of land validity of plaintiffs failed to prove customary right aver hand in dispute-held, they are not aggrieved party and cannot challenge validity of sale.;when the plaintiffs miserably failed to present that they had acquired a customary right of way over the land in dispute or taking their cattle to the jungle for grazing, they cannot be heard to say that the sale in favour of magraj was invalid because it was made before the land was converted into abadi land by the collector specially when it has been held by both the courts below that the villagers of the bar represented by the plaintiffs can conveniently use an open land lying vacant by the side of the house of one ramchandra for carrying their cattle to the jungle through..........decree of the learned district judge pali dated 29-1-70 by which the decree and judgment of the learned munsif jetaran dated 9-4-66 was set aside and the sale of the disputed land in favour of jasraj predecessor-in-title of hussain defendant by the panchayat was declared null and void and the deed of sale executed in his favour was cancelled and hussain was declared not entitled to put his stones on the land and was directed to remove them.2. the relevant facts giving rise to the suit out of which this second appeal arises maybe briefly stated as follows:- there is a piece of land comprising khasra no. 387 and situated in village bar. this piece of land was shown as agricultural land in the revenue record. later on vide order of the collector no. ca/4943 dated 3-8-57 it was converted.....
Judgment:

K.D. Sharma, J.

1. This Is a civil second appeal Sled by Hussain defendant-appellant against the judgment and decree of the learned District Judge Pali dated 29-1-70 by which the decree and judgment of the learned Munsif Jetaran dated 9-4-66 was set aside and the sale of the disputed land in favour of Jasraj predecessor-in-title of Hussain defendant by the Panchayat was declared null and void and the deed of sale executed in his favour was cancelled and Hussain was declared not entitled to put his stones on the land and was directed to remove them.

2. The relevant facts giving rise to the suit out of which this second appeal arises maybe briefly stated as follows:- There is a piece of land comprising Khasra No. 387 and situated in village Bar. This piece of land was shown as agricultural land in the revenue record. Later on vide order of the Collector No. CA/4943 dated 3-8-57 it was converted into Abadi land. The averments in the plaint filed by plaintiff-respondents were that this piece of land was med openly and peacefully by the inhabitants of the village for carrying their cattle for grazing in the past for the last 100 years and the villagers acquired a customary right for such user over it. The Gram Panchayat however sold away this land in question at public auction to Jasraj defendant before it was converted into an Abadi had by the Collector. Hussain defendant-appellant subsequently purchased this land from Magraj and put stones on it on 7-10-1963 and thereby caused obstruction to the customary right of way that has accrued to the villagers. The stones were placed by Hussain defendant for constructing his house on the land in question. The inhabitants of village Bar, therefore, filed a representative suit against Hussain, Jasraj and the Gram Panchayat Bar in the Court of the Munsif Jetaran for declaration of their right of way and for cancellation of the deed of sale executed by the Panchayat in favour of Majraj defendant and for perpetual Injunction restraining the defendants from causing any obstruction to the right of the villagers to carry their cattle through the land for grazing and fronts making any infringment on the land in question by placing stones on it or by constructing a building thereon.

3. The suit of the plaintiff was resisted by Hussain defendant on several grounds which are mentioned in his written statement. His main plea in his written statement was that the inhabitants of village Bar never acquired any customary right of way over this piece of land for taking their cattle to the jungle for grazing and that the Gram Panchayat was a competent to sell away this land to Magraj defendant from whom he purchased in bonafide for value. In the alternative it was pleaded by the defendant that the villagers can take away their cattle for grazing through the open land which is lying vacant near Khasra No. 387 and the suit is not maintainable without impleading the State Government to whom the land belonged. Upon pleadings of the parties the learned Munsif framed as many as 11 issues in the case which read as follows:

>1vk;k xzke cj dh ljgn es [kljk ua0 387 dh tehu es xkWokbZ eos'kh ds vkokxeu dk jkLrk gS A tks dnheh 100 o'kksZ ls Hkh vf/kd le; ls ekStwn gS A

2D;k [kljk ua0 387 dh tehu dks vkcknh es duoZV djus ds igys gh xzke iapk;r cj us tehu equktk lsy djus dh dk;Zokgh dj yh gS Abl dkj.k ls xzke iapk;r dk fd;k gqvk lsy MhM voS/k gS A

3D;k xzke iapk;r us [kljk ua0 387 ds ftl Hkkx dk lsy MhM tkjh fd;k gS ml Hkkx es eos'kh dk vkokxeu dk jkLrk gksus ls xzke iapk;r dks ;g Hkwfe lay djus dk vf/kdkj ugh Fkk A

4D;k ,fytM jkLrk cUn gksus ls xzke cj ds fuoklh;ks dk viw.kZuh; {kfr gksxh blfy, eqnbZ;ku gqDe berukb ekfld nkok ikus ds eq'rsgd gS A

5vk;k eqnbZ;ku dsk ,fytM jkLrs ds vf/kdkj ftl izdkj ls izkIr gq, rFkk budk vk/kkj D;k gSA ;g nkok eqnbZ;ku es tkfgj ugh gksus ls nkok eqnbZ;ku dkfcy pyus ds ugh gS A

6D;k [kljk ua0 387 es cgqr lh Hkwfe ,slh gS tgka eos'kh dk vkokxeu gks ldrk gS A blfy, eqnk;yk ds }kjk [kjhnh tehu eas ls jkLrk Dyse djus dk HkqnbZ;ku dsk vf/kdkj ugh gS A

7 D;k ,fytM jkLrk vke lM+d ds fgLls dsk feykus ds fy, 'kkVZ dV :i ls eqnbZ;ku dk;e jguk pkgrs gS A

8D;k eqnbZ;ku dk nkok dkcy gLrdkj ,d eqlqxh nLrkost vUnj e;kn ugh gS A

9D;k [kljk ua0 387 dh tehu ds okLrfod ekfyd jktLFkku ljdkj gS blfy, jktLFkku LVsV bl nkos es ykteh Qjhd gS A

10vk;k eqnk;yk us [kljk ua0 387 ds tehu dk IysV 700@& :i;s lsy fu;fr ls [kjhn fd;k vkSj bl ckcr rFkk eqnk;yk }kjk [kjhnk x;k vkSj tfj;s uhyke cspk x;k ml le; eqnbZ;ku o ?kj ds fdlh fuoklh u s,rjkt ugh fd;k blfy, vc bl laca/k es ,rjkt djus ls eqnbZ;ku bLVksiksy gSA

11izfrdkj D;k gksxk A

After striking the aforesaid issues, the learned Munsif recorded the evidence of the parties and decided all the issues except Nos. 8,9 and 10 against the plaintiffs. The decision No. 8,9, and 10 was given aginst the defendants, accordingly the learned Munsif dismissed the suit of the plaintiff with costs.

4. Aggrieved by the decree and judgment of the learned Munsif, the plaintiffs preferred an appeal in the court of District Judge, Pali, who after hearing the parties and goning through the record accepted the appeal and set aside the judgment and decree of the learned Munsif as stated above. The District Judge, however, left the parties to bear their own costs of both the courts. As against this decree and judgment Hussain has come up to this Court in second appeal. The plaintiff-respondents also filed a cross-objection on the ground that the courts below committed an error in coming to the conclusion that the inhabitants of village Bar never acquired a customary right of way over the land in question for taking away their cattle for grazing and that there is an alternative way for the villagers to carry their cattle through it.

5. I have carefully perused the record and beard Mr. P.C. Mathur learned Counsel for the appellant and Mr. H.N. Calla learned Counsel for the respondents. As the second appeal and the cross-objection arose out of one and the same judgment of the District Judge Pali and as common questions are involved for consideration in both of than they are decided together by this single judgment of mine.

6. It has been strenuously urged before me by Mr. P.C. Mathur learned Counsel for the appellants that it has been held by both the courts below that the inhabitants of village Bar have not acquired any customary right of way over the land in question for carrying their cattle through it to the jungle for grazing and so they are not entitled to challenge the sale of the land in favour of Magraj or to claim that the land be resold or auctioned because the Gram Panchayat was not authorised to create any right in Magraj in respect of the disputed land which was not converted into Abadi land as the time of its auction or sale by the Panchayat. The above contention is not devoid substance. The learned Munsif after careful scrutiny of the entire evidence came to a conclusion that no customary right of way for carrying their cattle for grazing accrued to the villagers of Bar over the land in dispute and that the villagers can conveniently carry their cattle through an open land lying vacant by the side of the home of Magilal. Accordingly he decided issue No. 1 against the plaintiff. This is a finding of fact which was confirmed by the District Judge also in para No. 9 in his judgment under appeal. The District Judge, after going through the evidence of the parties and inspecting the site, clearly held that there existed do such way as claimed by the plaintiff over the land in dispute for carrying their cattle to jungle for grazing. The relevant observations made by the District Judge are quoted below:

I have gone through the evidence of the parties and I confirm the finding of the lower court that there was no old way for cattle to pass on the disputed piece of land as alleged by them. There is a fairly other way for cattle to pass. These are the days when population is increasing and vacant land is being used for house building purpose. The conversion of the land from agricultural to Abadi land was done for this purpose as per contents of the order. I, therefore, find no flaw in the findings of the lower court.

The learned Counsel for the appellant could not succeed in challenging before me the concurrent findings arrived at by bath the courts below on issue No 1. In view of the above findings of fact arrived at by both the courts below on issue No. 1 It can be safely held that no subsisting rights of the plaintiffs were adversely affected by public auction of the land in question by the Gram Panchayat in favour of Magraj A concurrent finding of fact based on proper appreciation of evidence cannot be challenged or interfered with in second appeal. When the plaintiffs miserably failed to prove that they had acquired a customary right of way over the land in dispute or taking their cattle to the jungle for grazing, they cannot be heard to say that the sale in favour of Magraj was invalid because it was made before the land was converted into Abadi land by the Collector specially when it has been held by both the courts below that the villagers of Bar represented by the plaintiffs can conveniently use an open land lying vacant by the side of the house of one Ram chandra for carrying their cattle to the jangle through it for the purpose of grazing. It is no doubt true that if any right of the plaintiffs had been adversely affected by the sale of the land in question in favour of Magraj or Hussain appellant, there would have been some scope of grievance for them to challenge the validity of the sale but when they are not aggrieved parties and their present rights are not affected in any manner by the sale of the land in question, no right is created in their favour to claim that the sale is invalid and the land be resold or auctioned by the Panchayat Reference in this connection may be made to an authority of this Court Gurdayalsingh v. Gram Panchayat Arayan 1959 RLW 3 wherein Hon'ble Justice Bapna was pleased to make the following observations in para No. 4 of his judgment:

There is one more aspect of the case which strikes me but on which my learned brother does not wish to express any opinion. Speaking for myself, it appears tome that the various provisions of Rule 37(A) are meant for the guidance of the Panchayat and do not purport to create any right in any individual that a particular rule should be followed, or if it has not been followed, this Court should interfere and set aside the sale. Under Sub-rule (17) the Panchayat is permitted to sell lard even by private sale. If any sale is invalid, it is the lockout of the purchaser whether he should take the risk or not. If there is any Effect in the procedure laid down in the rules, it does not create any right in any other villager who has not acquired any interest in the land otherwise to claim that the land be resold or auctioned. The corrective can come from higher authorities who are controlling authorities in respect of the Panchayat but otherwise no individual whose present rights are not effected can challenge the sale or auction as being defective in any manner. The purchaser takes the land with whatever risk is involved to any defect in procedure laid down for sale or auction. There is no force in this petition and it is accordingly dismissed in limine.

In another case Dhanraj v. Hariram reported in 1966 RLW page 146 Hon'ble Justice Berl (as he then was) held that the validity of a sale of land by the Grampanchayat in contravention of Rule 37A of the Rajasthan Panchayat (Central) Rules 1954 can be challenged by a party affected by such alienation or sale. The lower appellate court did not consider this aspect of she case and committed an error in reversing the decree and judgment of the leaned Munsif Jetaran.

7. Consequently the second appeal filed by Hussain defendant is accepted and the decree judgment of the learned District Judge dated 29-1-70 is set aise and the decree and judgment of the learned Munsif Jetaran dated 9-4-66 dismissing the suit is restored. The cress-objections filed by the plaintiffs has no substance and is hereby dismissed. In the circumstances of the case the parties are left to bear their own costs throughout.


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