Supreme Court of India
THE TEHSILDAR, URBAN IMPROVEMENT TRUST AND ANR.versusGANGA BAI MENARIYA (DEAD) THROUGH LRS. AND OTHERS
- Citation
- 2024 INSC 121
- Decided
- 20 February 2024
- Disposal
- Disposed off
- Bench
- VIKRAM NATH
Holding
A suit for permanent injunction cannot be maintained where the plaintiff's title is disputed and unproved, and the Gram Panchayat lacked authority to lease the government land, so the trial court's dismissal is affirmed.
Summary
The respondents claimed that a lease (patta) of a government grazing land was granted to them by the Gram Panchayat in 1959 and filed a suit for permanent injunction without seeking a declaration of title. The appellants argued that the Panchayat lacked authority to lease the land, the lease deed was unproved, and the Gram Panchayat was not impleaded, making the suit untenable. The trial court dismissed the suit, finding the respondents in illegal possession, but the First Appellate Court and High Court reversed that decision and granted injunction. The Supreme Court held that the respondents failed to prove their title, the Panchayat had no competence to lease the land, and a suit simpliciter for injunction is not maintainable when title is disputed. Consequently, the Court set aside the appellate judgments, restored the trial court decision, and dismissed the suits.
Issues considered
- Whether a suit for permanent injunction is maintainable without a declaration when the plaintiff's title is disputed.
- Whether the Gram Panchayat had the competence to grant a lease of government grazing (Bilanam) land under the Rajasthan Urban Improvement Act, 1959.
- Whether the lease deed produced by the respondents is proved and admissible as evidence.
- Whether the non-impleadment of the Gram Panchayat as a necessary party defeats the suit.
- Whether the requirements of Rule 266 of the Rajasthan Panchayat (General) Rules, 1961 were complied in the alleged lease/sale.
- Whether the respondents were in illegal possession of the land.
Legislation cited
Subjects
Lease of land by Gram PanchayatSuit for permanent injunctionTitle of the propertyProving title while praying for injunctionGovernment grazing landRule 266 of Panchayat Rules
Judgment
[2024] 2 S.C.R. 650 : 2024 INSC 121
The Tehsildar, Urban Improvement Trust and Anr.
v.
Ganga Bai Menariya (Dead) Through Lrs. and Others
(Civil Appeal No. 722 of 2012)
20 February 2024
[Vikram Nath and Rajesh Bindal,* JJ.]
Issue for Consideration
Civil Appeal No. 722 of 2012
The respondents-plaintiffs claimed that they had been granted patta
(lease) of the land by Gram Panchayat in the year 1959 and on
the basis thereof, they were continuing in possession. However,
the land was still being shown in the ownership of the Government.
A civil suit was filed by the respondents for permanent injunction
and for ownership and possession of the suit land. The suit was
filed as a notice was issued by the appellants u/s. 92A of the
Rajasthan Urban Improvement Act, 1959. Whether a suit simpliciter
for injunction was maintainable as the title of the property of the
plaintiff/respondent was disputed by the appellants/defendants.
C.A. Nos.8977/2012, 468/2013, 524/2013, 467/2013 and Civil
Appeal @ S.L.P.(C)No.25200/2013
In the aforesaid bunch of appeals and the Special Leave Petition, the
High Court had disposed of all the appeals, relying upon its earlier
judgment dated 14.07.2009 in S.B. Civil Second Appeal No.6/2008
titled as The Tehsildar, Urban Improvement Trust and another v.
Late Smt. Ganga Bai Menariya through legal representatives. The
aforesaid appeal decided by the High Court is subject matter of
consideration before this Court in C.A. No.722 of 2012.
Headnotes
Rajasthan Urban Improvement Act, 1959 – In C.A. No.722 of
2012, the trial Court found that the respondents-plaintiffs
were found to be in illegal possession of the land and were
not entitled to the injunction prayed for – It was specifically
noticed that the suit had not been filed for declaration as it was
merely for injunction and the encroachers on the land were
not found entitled to the relief of injunction – First Appellate
Court reversed the findings of the trial Court and the suit was
* Author
[2024] 2 S.C.R. 651
The Tehsildar, Urban Improvement Trust And Anr. v.
Ganga Bai Menariya (Dead) Through Lrs. And Others
decreed – The High Court upheld the judgment and decree of
the First Appellate Court – Propriety:
Held: The fact remains that no revenue record was produced by
the respondents-plaintiffs to show that the land in question was
ever mutated in their favour – In the evidence led, they were found
to be in possession as even the case set up by the appellants is
that they issued notice to the respondents-plaintiffs u/s. 92A of the
1959 Act – The respondents-plaintiffs while filing the civil suit did
not implead the Gram Panchayat as party – In such circumstances,
the respondents-plaintiffs were required to prove the document as
the competence of the Gram Panchayat to lease out the land itself
was in question – In the revenue record produced on record by
the appellants, it is shown that the land in question was shown in
ownership of Government – In the light of the aforesaid stand and
the evidence led on record by the appellants-defendants, it was
incumbent on the respondents to have proved their title on the
land, which they failed to establish – Further a suit simpliciter for
injunction may not be maintainable as the title of the property of
the plaintiff/respondent was disputed by the appellants/defendants
– In such a situation it was required for the respondent/plaintiff
to prove the title of the property while praying for injunction – In
opinion of this Court, the judgment of the High Court suffers from
patent illegality – Consequently, the judgment and decree of the
First Appellate Court as well as the High Court are set aside and
that of the Trial Court is restored. [Paras 20,21,21.1,21.2]
Rajasthan Panchayat (General) Rules, 1961 – r. 266 – In C.A.
Nos.8977/2012, 468/2013, 524/2013, 467/2013 and Civil Appeal
@ S.L.P.(C) No.25200/2013, civil suits were filed claiming
that the land in question was leased out to the plaintiffs by
the Gram Panchayat – In support of the plea, the plaintiff/
respondent placed on record the document dated 27.08.1985,
the lease deed – However, the same was not proved – The
trial Court came to the conclusion that no case was made out
by the plaintiff/respondent – Hence, the suit for permanent
injunction was dismissed – First Appellate Court passed the
decree of permanent injunction – Same was upheld by the
High Court – Propriety:
Held: As recorded by the Trial Court, the respondents/plaintiffs had
not been able to prove the document on the basis of which they were
claiming a right of possession of the property in question – Even if
the aforesaid document is considered, the sale was clearly violative
of Rule 266 of the 1961 Rules, under which aforesaid alleged lease
652 [2024] 2 S.C.R.
Digital Supreme Court Reports
deed/sale deed has been issued in favour of the respondents/plaintiffs
– In terms of Rule 266 of the 1961 Rules, only in certain specified
situation, the land could be transferred by way of sale on private
negotiation, namely, where any person has a plausible claim of title
to the land and auction may not fetch reasonable price or it may
not be the convenient mode for disposal of land or where such a
course is regarded by the Panchayat necessary for advancement of
Scheduled Castes and Scheduled Tribes or other Backward Classes
– Another situation envisaged is where the person is in possession
of land for more than 20 years but less than 42 years – Nothing
was produced on record to show that the due process required for
leasing out/sale of the land in favour of the respondents/plaintiffs
by private negotiation was followed – Gram Panchayat from whom
the land was taken was not impleaded as party to admit or deny
the allegations made by the respondents/plaintiffs in the plaint –
The impugned judgments of the High Court as well as the First
Appellate Court are set aside and that of the trial Court is restored
– Resultantly, the suits are dismissed. [Paras 29, 30]
Case Law Cited
Union of India v. Brahim Uddin and another, [2012] 8
SCR 35 : (2012) 8 SCC 148; Anathula Sudhakar v. P.
Buchi Reddy (Dead) by Lrs. and ors., [2008] 5 SCR
331 : (2008) 4 SCC 594 – referred to.
List of Acts
Rajasthan Urban Improvement Act, 1959; Indian Evidence Act,
1872; Rajasthan Panchayat (General) Rules, 1961.
List of Keywords
Lease of land by Gram Panchayat; Suit for permanent injunction;
Title of the property; Proving the title of the property while praying
for injunction.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 722 of 2012
From the Judgment and Order dated 14.07.2009 of the High Court of
Judicature for Rajasthan at Jodhpur in SBCSA No.6 of 2009
With
Civil Appeal Nos. 8977 of 2012, 468, 524, 467 of 2013 And 2687 of 2024
[2024] 2 S.C.R. 653
The Tehsildar, Urban Improvement Trust And Anr. v.
Ganga Bai Menariya (Dead) Through Lrs. And Others
Appearances for Parties
S. Niranjan Reddy, C. S. Mohan Rao, Sr. Advs., Ms. Aruna Gupta,
Ramesh Allanki, Lokesh Kumar Sharma, Syed Ahmad Naqvi, Ms.
Palak, Advs. for the Appellants.
V.K.Shukla, Sr. Adv., Rishabh Sancheti, Ms. Padma Priya, Anchit
Bhandari, Suyash Jain, Chirag Kalani, Karan Bhootra, Garvit Sharma,
K. Paari Vendhan, T. Mahipal, Vivek Gupta, Mrinmay Bhattmewara,
Manish Mogra, Ankit Verma, Dashrath Singh, Gp. Capt. Karan Singh
Bhati, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Rajesh Bindal, J.
1. Leave granted in S.L.P.(C)No.25200 of 2013.
2. This order will dispose of a bunch of appeals as common issues
are involved.
Civil Appeal No. 722 of 2012
3. In the case in hand, a Civil Suit1 was filed by the respondents for
permanent injunction and for ownership and possession of the suit
land. The Trial Court2 dismissed the suit, however, First Appellate
Court3 accepted the appeal and decreed the suit restraining the
defendants therein from interfering in the possession of the plaintiffs
in the suit land. The appeal preferred before the High Court4 by the
present appellants was dismissed. It is the aforesaid judgment5,
which is impugned before this Court.
4. The respondents filed the suit on 10.05.1999 for permanent injunction
against the appellants and also claimed ownership and possession
of the suit land, situated at Mauja Madri, Savina Road, measuring
35x38 i.e., 1,330 square yards on which a room measuring 20x30
feet had been constructed. It was claimed that the suit land was
1 Civil Sut Case No. 153/99ED
2 Civil Judge (K-Kha) City (South) Udaipur
3 Additional District Judge, Udaipur
4 Rajasthan High Court at Jodhpur
5 Judgement dated 14.07.2009 in Civil Second Appeal No. 06 of 2009
654 [2024] 2 S.C.R.
Digital Supreme Court Reports
purchased by the respondents-plaintiffs from Panchayat Titardi on
13.12.1959 and a boundary wall was constructed in the year 1960.
The suit was filed as a notice was issued by the appellants under
Section 92A of the 1959 Act6.
5. The stand taken by the appellants in the written statement was
that the land in question is a Government land (Bilanam Sarkar)
earmarked for grazing cattles (gochar land), which was forming
part of Khasra No. 1163 ( old Khasra No. 838) in village Mauza
Madri Menaria, Tehsil Girva. The Gram Panchayat, Titardi was
not competent to grant lease in respect to the aforesaid land,
especially when it was ear-marked for grazing cattles. Notice was
issued on receiving information that the respondents-plaintiffs
had encroached upon the land. It was also pleaded that Gram
Panchayat, Titardi was a necessary party but had not been
impleaded. In the revenue record, the land was still shown to be
owned by the Government. In case the claim of respondents-
plaintiffs was that it was given on lease to them, there was no
mutation entered on the basis thereof.
6. The Trial Court framed six issues as extracted below:
"1. Whether the land mentioned in para 1 of the suit is
the land and house in the ownership and possession
of the plaintiff? Plaintiff
2. Whether the defendants forcibly wanted to demolish
the plaintiff’s house? Plaintiff
3. Whether the plaintiff has tried to unauthorisedly
acquire the land which is in the ownership of Nagar
Vikas Pranyas? Defendant
4. Whether in absence of pleading the Gram Panchayat
Titardi as necessary party, the suit of the plaintiff is
not maintainable? Defendant
5. Whether the Gram Panchayat Titardi was not
authorized to issue the patta in favour of the plaintiff,
the patta issued in favour of plaintiff is forged?
Defendant
6 Rajasthan Urban Improvement Act, 1959
[2024] 2 S.C.R. 655
The Tehsildar, Urban Improvement Trust And Anr. v.
Ganga Bai Menariya (Dead) Through Lrs. And Others
6. Whether without declaration suit for injunction filed
by the plaintiff is not maintainable? Defendant”
7. Issues No. 1 to 3 and 5, being inter-related, were decided together.
The respondents-plaintiffs had not been able to make out the pleaded
case on the basis of evidence led by them and the same were decided
against them. Issue No. 4 was decided against the plaintiffs and in
favour of the defendants and so was the finding recorded on issue
No. 6. Finally, the Trial Court found that the respondents-plaintiffs were
found to be in illegal possession of the land and were not entitled to
the injunction prayed for. It was specifically noticed that the suit had
not been filed for declaration as it was merely for injunction and the
encroachers on the land were not found entitled to the relief of injunction.
8. In appeal before the First Appellate Court by the respondents, the
findings recorded by the Trial Court were reversed and the suit
was decreed. Even the issue regarding non-impleadment of Gram
Panchayat, Titardi as necessary party in the suit was reversed. So
was the position with regard to maintainability of the suit simpliciter
for injunction without praying for relief of declaration. This is despite
the fact that the respondents-plaintiffs had claimed their title or
legality of possession on the land from the Gram Panchayat, which
was not impleaded.
9. The High Court upheld the judgment and decree of the First Appellate
Court in an appeal filed by the present appellants. The High Court
noticed that allotment of land in favour of the respondents-plaintiffs
in the year 1959 was proved with the evidence of two witnesses,
who were members of the Gram Panchayat at the relevant time. The
High Court also recorded that patta (lease) is in existence, which
was granted by a statutory body, Gram Panchayat, Titardi. The
respondents-plaintiffs were entitled to decree of permanent injunction.
The suit simpliciter for injunction was held to be maintainable without
seeking declaration. The High Court found that no substantial question
of law was involved in the second appeal.
C.A. Nos.8977/2012, 468/2013, 524/2013, 467/2013 and Civil
Appeal @ S.L.P.(C)No.25200/2013
10. In the aforesaid bunch of appeals and the Special Leave Petition,
in which leave was granted, the High Court had disposed of all the
appeals, merely relying upon its earlier judgment dated 14.07.2009
656 [2024] 2 S.C.R.
Digital Supreme Court Reports
in S.B. Civil Second Appeal No.6/2008 titled as The Tehsildar,
Urban Improvement Trust and another v. Late Smt. Ganga Bai
Menariya through legal representatives. The aforesaid appeal
decided by the High Court is subject matter of consideration before
this Court in C.A. No.722 of 2012, which is being dealt with in the
present judgment.
ARGUMENTS
Civil Appeal No. 722 of 2012
11. Learned counsel for the appellants submitted that the findings
recorded by the First Appellate Court, as upheld by the High Court,
are erroneous. In fact, the judgment and decree of the Trial Court
was passed while properly appreciating the legal position and the
evidence produced on record. It is a case in which the respondents-
plaintiffs claimed that they had been granted patta (lease) of the
land by Gram Panchayat, Titardi in the year 1959 and on the basis
thereof, they were continuing in possession. However, the fact
remains that the land was still being shown in the ownership of the
Government. It was ear-marked for grazing cattles (pasture land).
The Gram Panchayat did not have any authority to lease out the
same. It cannot even change user of the land. Simpliciter a suit for
permanent injunction was filed without seeking a declaration of the
rights vested in the respondents-plaintiffs on the basis of documents
produced by them on record, which was not maintainable. Gram
Panchayat, Titardi from which the respondents-plaintiffs were claiming
rights in the property, was not even impleaded as party. The patta
(lease) in favour of the respondents-plaintiffs was sought to be proved
merely by producing two witnesses, who were claimed to be the
members of the Panchayat at the relevant time but not signatory to
the document. The record from Gram Panchayat was not summoned.
The High Court had failed to frame any substantial question of law.
C.A. Nos.8977/2012, 468/2013, 524/2013, 467/2013 and Civil
Appeal @ S.L.P.(C)No.25200/2013
12. Additional argument raised in the bunch of other appeals was that
the Gram Panchayat had granted patta (lease) in favour of the
respondents therein in contravention of Rule 266 of the 1961 Rules7
7 The Rajasthan Panchayat (General) Rules, 1961
[2024] 2 S.C.R. 657
The Tehsildar, Urban Improvement Trust And Anr. v.
Ganga Bai Menariya (Dead) Through Lrs. And Others
in terms of which the panchayat land could be sold by way of private
negotiation only in case it was not possible to fetch reasonable price
if the land was put to auction. Specific reasons were required to be
recorded. The respondents-plaintiffs being in illegal possession of
the land, notices were rightly issued for their eviction. It was after
following the due process of law, which could not be challenged
merely by filing a suit for injunction.
13. On the other hand, learned counsel for the respondents submitted
that it was claimed that the respondents-plaintiffs had title of the
property by way of lease executed by Gram Panchayat, Titardi on
13.12.1959. It is claimed by the appellants that chunk of land was
transferred by District Collector vide order dated 15.4.1989 to the
Urban Improvement Trust for extension of abadi. It was said to be
Government bilanam. There was no reference of gochar land, as
is sought to be claimed by the appellants. Notice was issued to the
respondents more than 19 years after the land was transferred to
Urban Improvement Trust. As the respondents wanted to protect their
right in the land as also possession, the suit was filed merely for
permanent injunction as they had title of the property on the basis
of patta executed by Gram Panchayat in their favour. There was no
need to file a suit for declaration. The patta (lease) executed by the
Gram Panchayat was exhibited. It was issued by the Sarpanch in
the presence of two witnesses. Both were examined as PW4 and
PW5. The documents being more than 30 years old, there was
presumption available under Section 90 of the 1872 Act8. There is
no error in the judgment and decree passed by the First Appellate
Court, as upheld by the High Court.
14. It was further argued that on 17.10.2012, the State Government
introduced a Scheme, whereby land in possession of persons prior
to the year 1965 was being regularised. In terms of that, 23.43
hectares of land in village Paneriyo Ki Madari was transferred
by the appellants to Municipal Council, Udaipur vide letter dated
29.01.2013. NOC was also issued by Municipal Council, Udaipur on
04.04.2013 for issuance of patta under the State Grants Act, 1961 to
the persons in possession of the land prior to 01.01.1965. Thus, in
view of this subsequent developments, the appellants have nothing
8 Section 90 of the Indian Evidence Act, 1872
658 [2024] 2 S.C.R.
Digital Supreme Court Reports
to do with the land in question. Number of pattas had already been
issued in favour of occupants of the land. In fact, for part of the land
in question, pattas have already been issued on 21.10.2012. The
aforesaid Scheme i.e. known as ‘Parshashan Shehron Ka Sang
Abhiyan, 2012’. It continued from time to time in the State till the
year 2020-21.
15. It was further submitted that a clarification was issued by the State
Government on 21.04.2022 regarding the Scheme of 2021 for
issuance of free hold patta. As per the aforesaid clarification, the
patta may be issued in favour of last purchaser in the absence of
link document, who purchased land after 31.12.2018.
16. Heard leaned counsel for the parties and perused the relevant
referred record.
DISCUSSION
Civil Appeal No. 722 of 2012
17. In the case in hand, the respondents claimed that they were
given the land measuring 1330 square yards on lease by Gram
Panchayat, Titardi on 13.12.1959. It is claimed that they were
in possession of the land ever since then. The fact remains that
no revenue record was produced by the respondents-plaintiffs to
show that the land in question was ever mutated in their favour.
In the evidence led, they were found to be in possession as even
the case set up by the appellants is that they issued notice to the
respondents-plaintiffs under Section 92A of the 1959 Act. To prove
the lease in their favour, the respondents-plaintiffs had produced in
evidence Ex.1, claimed to be lease deed dated 13.12.1959 executed
by the Gram Panchayat in favour of late Ganga Bai widow of Jai
Shankar Menaria. In the stand taken by the appellants, the land
being reserved for grazing cattles could not possibly be leased
out by the Gram Panchayat.
17.1. On one side, the plea sought to be taken by the respondents
is that the document being more than 30 years old, there
was presumption of truth in terms of Section 90 of the 1872
Act. This section provides that if the document is more than
30 years old and is being produced from proper custody, a
presumption is available to the effect that signatures and
every other part of such document, which purports to be in
[2024] 2 S.C.R. 659
The Tehsildar, Urban Improvement Trust And Anr. v.
Ganga Bai Menariya (Dead) Through Lrs. And Others
the handwriting of any particular person, is in that person’s
handwriting and in case a document is executed or attested,
the same was executed and attested by the persons by whom
it purports to be executed and attested. This does not lead
to a presumption that recitals therein are correct. (Reference
can be made to the judgment of this Court in Union of India
v. Brahim Uddin and another9.
18. Nothing was referred to by learned counsel for the respondents from
the record to show the reasons for producing copy of the document
in Court and not summoning the record from the Gram Panchayat
to prove execution of the alleged lease in their favour. The contents
of the documents were required to be proved. Effort was made to
prove the document by producing two witnesses. (PW4 and PW5
stated that the lease was granted in favour of the respondents). It
was signed by the Sarpanch. There was no material on record to
show that, except the oral statements of aforesaid two witnesses that
at the relevant time, namely, in the year 1959, they were members
of the Gram Panchayat otherwise the document Ex.1 (lease deed)
placed on record by the respondents-plaintiffs as such does not
contain their signatures. The document only contains signatures of
some Sarpanch who had attested the same stating to be true copy.
It was claimed that at the relevant time, Sarpanch was Kushal Singh,
however before the evidence could be led, he expired and hence
could not be produced in evidence. If the respondents-plaintiffs
wished to prove the contents of the document in question, they
could very well summon the record from the Gram Panchayat when
a specific plea taken by the appellants was that the document was
forged and the Gram Panchayat did not have competence to lease
out the land.
19. The respondents-plaintiffs while filing the civil suit did not implead the
Gram Panchayat as party. In such circumstances, the respondents-
plaintiffs were required to prove the document as the competence
of the Gram Panchayat to lease out the land itself was in question.
The Gram Panchayat could have filed the written statement admitting
or denying execution of the lease deed and place complete facts
before the Court as per records.
9 [2012] 8 SCR 35 : (2012) 8 SCC 148
660 [2024] 2 S.C.R.
Digital Supreme Court Reports
20. In the revenue record produced on record by the appellants, it
is shown that the land in question was shown in ownership of
Government (Bilanam Sarkar). Its new Khasra Number was 1163
and old Khasra Number is 838 in Mauza Madri Menaria, Tehsil
Girva. As per jamabandi Ex. A-1, the land forming part of Khasra No.
838 was shown to be non-agricultural reserved for grazing cattles
(shamlat deh).
21. In the light of the aforesaid stand and the evidence led on record by
the appellants-defendants, it was incumbent on the respondents to
have proved their title on the land, which they failed to establish. As
per the stand of the appellants, the respondents were encroachers
upon the land for which notice under Section 92A of the 1959 Act
was issued to them. The same was replied to by the respondents
stating therein that they have patta executed in their favour by the
Gram Panchayat.
21.1. Further a suit simpliciter for injunction may not be maintainable
as the title of the property of the plaintiff/respondent was
disputed by the appellants/defendants. In such a situation it
was required for the respondent/plaintiff to prove the title of
the property while praying for injunction. Reference can be
made to the judgment of this Court in Anathula Sudhakar v.
P. Buchi Reddy (Dead) by Lrs. and ors.10
21.2. In view of aforesaid discussions, in our opinion, the judgment
of the High Court suffers from patent illegality. Consequently,
the judgment and decree of the First Appellate Court as well
as the High Court are set aside and that of the Trial Court is
restored. As a consequence, the suit filed by the respondents
is dismissed.
C.A. Nos.8977/2012, 468/2013, 524/2013, 467/2013 and Civil
Appeal @ S.L.P.(C)No.25200/2013
22. In the aforesaid bunch of appeals, Radheshyam son of Bhagwati
Prasad and his family members, as detailed below filed five civil
suits praying for permanent injunction:
10 [2008] 5 SCR 331 : (2008) 4 SCC 594
[2024] 2 S.C.R. 661
The Tehsildar, Urban Improvement Trust And Anr. v.
Ganga Bai Menariya (Dead) Through Lrs. And Others
Case No. and Title Case No. & title Case No.& title
in Supreme Court in the Trial Court in the lower
of India Appellate Court
C.A. No.524/2013 Original Civil Civil Appeal
Suit No.60/2002- No.01/2004
Urban Improvement
Radheshyam v. (72/03)-Radheshyam
Trust v. Radhey
Secretary, Urban v. Secretary, Urban
Shyam Tripathi
Improvement Trust Improvement Trust
C.A. No.8977/ 2012 Original Civil Civil Appeal
Suit No.61/2002- No.03/2004 (75/03)-
Nagar Vikas Pranyas
Sumitra Devi v. Sumitra Devi v.
v. Sumitra Devi
Secretary, Nagar Secretary, Nagar
Vikas Pranyas Vikas Pranyas
C.A.No.467/2013 Original Civil Civil Appeal
Suit No.78/2002- No.02/2004 (74/03)-
Urban Improvement
Vipin Kumar v. Vipin Kumar v.
Trust v. Vipin Kumar
Secretary, Urban Secretary, Urban
S/o Radhey Shyam
Improvement Trust Improvement Trust
Tripathi
C.A.No.468 of 2013 Original Civil Civil Appeal
Suit No.60/2002- No.04/2004 (76/03)-
U.I.T. Udaipur v.
Sumitra Devi v. Sumitra Devi v.
Sumitra Devi W/o
Secretary, Urban Secretary, Urban
Radhe Shyam
Improvement Trust Improvement Trust
Tripathi
C.A. arising Original Civil Civil Appeal
out of S.L.P.(C) Suit No.62/2002- No.11/2004 (73/03)-
No.25200/2013 Radhey Shyam v. Radhey Shyam v.
Secretary, Urban Secretary, Urban
Urban Improvement
Improvement Trust, Improvement Trust,
Trust v. Radhey
Udaipur Udaipur
Shyam Tripathi s/o
Bhagwati Prasad
Tripathi
22.1. The Trial Court decided the suits vide judgment and decree
dated 30.04.2008. The First Appellate Court decided the appeals
vide judgment dated 19.04.2004.
22.2. Civil Suits were filed claiming that the land in question was
leased out to the plaintiffs on 27.08.1985 (as is evident from
662 [2024] 2 S.C.R.
Digital Supreme Court Reports
the judgment of the Trial Court). However, in the documents
annexed with the I.A.No.148204 in C.A. No.8977 of 2012, the
transaction is shown to be sale. Though no prayer was made
in the suit seeking a declaration as owner of the land as it was
simpliciter for permanent injunction still the Trial Court framed
the issue ‘whether the disputed plot is of the ownership and
possession of the plaintiff’. The second issue frame was ‘as
to whether the plaintiff is entitled to permanent injunction’.
Both the issues were taken up together. While discussing the
Issue no.1, the court recorded the ownership part was not to
be gone into as it was merely a suit for permanent injunction
but still it was to be considered as to whether the possession
was valid or not. In support of his plea the plaintiff/respondent
placed on record the document dated 27.08.1985, the lease
deed. However, the same was not proved. The court also
considered about the right of the Gram Panchayat to lease
out the land with reference to the Rules applicable therefor.
Finally, the Trial Court came to the conclusion that no case
was made out by the plaintiff/respondent. Hence, the suit for
permanent injunction was dismissed by the Trial Court on
30.04.2003.
22.3. The judgment and decree in all the suits were challenged by
filing appeals. The First Appellate Court without considering
the fact as to whether the alleged lease deed Ext.E-1 was
proved by the respondent-plaintiff in accordance with law,
had shifted the burden on defendants to prove otherwise.
The issue regarding competence of the Gram Panchayat to
lease out the land was just brushed aside. The appeal was
accepted and decree of permanent injunction was passed by
the First Appellate Court against which the appeal(s) were filed
by the present appellants before the High Court. The same
was disposed of in terms of the impugned judgment, though
the issues were not identical.
22.4. It is admitted by all the respondents/plaintiffs in the bunch of
appeals that the individual lease deeds were issued in their
favour on 27.08.1985 by the Gram Panchayat.
22.5. The stand of the appellants is that the lease deeds were
executed in contravention of Rule 266 of the 1961 Rules,
which provides that Panchayat may transfer any land by way
[2024] 2 S.C.R. 663
The Tehsildar, Urban Improvement Trust And Anr. v.
Ganga Bai Menariya (Dead) Through Lrs. And Others
of private negotiation in case any person has a plausible claim
of title and auction may not fetch reasonable price, where for
reasons to be recorded in writing, the Panchayat thinks that
auction would not be convenient mode for disposal or where
such a course is regarded by the Panchayat for advancement
of Scheduled Castes and Scheduled Tribes or other Backward
Classes.
23. In Chapter XIII of the 1961 Rules, complete procedure has been
provided for sale of abadi land.
23.1. Rule 255 defines ‘abadi land’ to mean nazul land lying within
the inhabited areas of Panchayat circle.
23.2. Under Rule 256, a person desirous of purchasing the abadi
land can file an application in writing along with requisite fee.
23.3. On receipt of application, in terms of Rule 257, a plan of the
land in question is to be prepared specifying the boundaries
of the land to be sold.
23.4. After the plan is ready, local inspection of the site is to be made
by three nominated Panchs who will submit their opinion on
the following issues:
(a) whether the sale applied for will affect the facilities for
going and coming enjoyed by the villagers;
(b) whether such sale will affect the rights of easements owned
by other persons;
(c) whether such sale will affect beauty and cleanliness of
the locality; and
(d) such other matters as may appear to be relevant (Rule 258).
23.5. A provisional decision is to be taken by the Panchayat as to
whether the proposed sale should or should not be made
(Rule 259).
23.6. If the decision is to sell the land, public notice is to be issued
on Form ‘L’ inviting objections to the proposed sale (Rule 260).
23.7. Objections, if any, received are to be dispose of after affording
opportunity of hearing to the objector (Rule 261).
664 [2024] 2 S.C.R.
Digital Supreme Court Reports
23.8. If no objections are received, the Panchayat shall pass a
resolution and order for sale of the land by auction and date
and time thereof shall be fixed (Rule 262).
23.9. The procedure for auction, deposit of earnest money,
confirmation of sale have been provided in Rules 262 and 265.
23.10. Rule 266 provides for transfer of abadi land by private
negotiations in certain specified situations, namely:
(a) where any person has a plausible claim of the title of
the land and the auction may not fetch reasonable price;
(b) where for the reasons to be recorded in writing, the
Panchayat opines that auction may not be convenient
mode for disposal of land;
(c) where such a course is regarded by the Panchayat
necessary for advancement of Scheduled Castes and
Scheduled Tribes or other backward classes; and
(d) where the persons are in possession of abadi land for
20 years or more but less than 42 years.
24. In the aforesaid situation, the land can be transferred by passing a
resolution by the Panchayat.
25. Relevant Rule 266 is extracted below:
“266. Transfer of abadi land by private negotiation. – (1)
The Panchayat may transfer any abadi land by way of sale
by private negotiation in the following cases:-
(a) Where any person has a plausible claim of title to the
land and an auction may not fetch reasonable price;
(b) where for reasons to be recorded in writing the
Panchayat thinks that an auction would not be a
convenient mode of disposal of the land;
(c) where such course is regarded by the Panchayat
necessary for the advancement of Scheduled Castes
and Scheduled Tribes or other Backward Classes.
(d) where the persons are in possession of the abadi
land for 20 years or more but less than 42 years,
[2024] 2 S.C.R. 665
The Tehsildar, Urban Improvement Trust And Anr. v.
Ganga Bai Menariya (Dead) Through Lrs. And Others
one-third of the prevailing market price and in case
of possession of over 40 years, one sixth of the
prevailing market price shall be charged.
(2) The Panchayat may, by resolution, transfer by way of
sale without charging any price therefore, any abadi land
of which the probable value does not exceed Rs. 200/- in
favour of any institution for a public purpose.”
26. The allotment to all the allottees was on the same day i.e. 27.08.1985.
Along with I.A. No. 148204 of 2023 in C.A. No. 8977 of 2012, a copy
of the register of sale deeds of populated land on Form No. 49 has
been annexed as Annexure R-6. The sale deeds of land in favour of
the respondents are shown at Sr. Nos. 104 to 109. With reference
to Sr. Nos. 104 to 106, 108 and 109, the same are annexed as
Annexures R-1 to R-5, whereas the sale deed executed in favour
of Sanjay Kumar son of Radheshyam (Sr. No. 107) is not available.
In the appeals being considered by this Court, the matter pertaining
to Sanjay Kumar son of Radheshyam is not under consideration.
27. The following table will show the area leased out to the family
members of the same persons on the same date:
Sr. Name Serial No./ Area in
No. Settlement No. Sq.ft.
1. Radheshyam S/o Bhagwati 104 6120
Prasad R/o Manva Kheda
2. Sumitra Devi W/o Radheshyam 105 7645
R/o Manva Kheda
3. Vipin Kumar S/o Radheyshyam 106 4500
Tripathi R/o Manva Kheda
4. Sumitra Devi W/o Radheshyam 108 6104
R/o Manva Kheda
5. Radheshyam s/o Bhagwati 109 6097
Prasad R/o Manva Kheda
28. In Civil Appeal No. 8977 of 2012, originally the suit was filed by the
respondent only for permanent injunction in the year 2002 with the
pleading that on 09.02.2002, an employee of the Town Improvement
Trust visited the spot and threatened the respondent for forcible
dispossession. Gram Panchayat, Village Kaladwas was not even
666 [2024] 2 S.C.R.
Digital Supreme Court Reports
impleaded as party. No declaration was sought that the respondent
was owner in possession of the plot, hence she could claim injunction.
The only evidence led was in the form of copy of lease deed dated
27.08.1985 where the plaintiff appeared as PW1.
29. As recorded by the Trial Court, the respondents/plaintiffs had not
been able to prove the document on the basis of which they were
claiming a right of possession of the property in question. Even if
the aforesaid document is considered, the sale was clearly violative
of Rule 266 of the 1961 Rules, under which aforesaid alleged lease
deed/sale deed has been issued in favour of the respondents/plaintiffs.
In terms of Rule 266 of the 1961 Rules, only in certain specified
situation, the land could be transferred by way of sale on private
negotiation, namely, where any person has a plausible claim of title
to the land and auction may not fetch reasonable price or it may
not be the convenient mode for disposal of land or where such a
course is regarded by the Panchayat necessary for advancement of
Scheduled Castes and Scheduled Tribes or other Backward Classes.
Another situation envisaged is where the person is in possession
of land for more than 20 years but less than 42 years. Nothing was
produced on record to show that the due process required for leasing
out/sale of the land in favour of the respondents/plaintiffs by private
negotiation was followed. Gram Panchayat from whom the land was
taken was not impleaded as party to admit or deny the allegations
made by the respondents/plaintiffs in the plaint.
30. For the reasons, mentioned above, we find merit in the present
appeals. The same are accordingly allowed. The impugned judgments
of the High Court as well as the First Appellate Court are set aside
and that of the Trial Court is restored. Resultantly, the suits are
dismissed.
31. Before parting with the order, we are pained to note certain facts
which show total casualness on the part of the appellants. As
has been noticed above, in the bunch of five appeals bearing
C.A.No(s).8977/2012, 468/2013, 524/2013, 467/2013 and Civil
Appeal arising out of S.L.P.(C)No.25200/2013, challenge was to the
order passed by the High Court in five different second appeals.
Five different suits were filed by five persons of the family which
were assigned different numbers though decided on the same day
by separate judgments. Five different appeals were filed before the
[2024] 2 S.C.R. 667
The Tehsildar, Urban Improvement Trust And Anr. v.
Ganga Bai Menariya (Dead) Through Lrs. And Others
First Appellate Court and when the matter was taken to the High
Court, five different appeals were filed. The same were disposed of
on 18.04.2012.
32. When five different suits were filed by different persons while filing the
documents with the paper book filed in this Court, it was incumbent
upon the appellants to place on record correct copies of the judgments
of the Trial Court as well as the First Appellate Court for each of the
case. However, it is evident from the paper books of the aforesaid
five appeals that in all the appeals the Trial Court judgment placed on
record was passed in Case No.60/2002 titled as Smt. Sumitra Devi
w/o Radheshyam Tripathi dated 30.04.2003 and the judgment of the
First Appellate Court placed on record in all the appeals is Misc. Civil
Appeal No.01 of 2004 titled as Radheshyam son of Bhagwati Prasad
Tripathi dated 19.04.2004. The related judgments of the individual
cases before the Trial Court and the lower Appellate Court have not
been placed on record in the respective appeals. With great deal
of effort to join the loose ends, we could find out the details from
the title of the impugned judgment of the High Court as the same
mentioned the civil suit number as well as the appeal number in
the First Appellate Court which was different in all five cases. It is
evident from the table enumerated in para 19.1 of the judgment. We
can only observe that the parties need to be more careful while filing
the pleadings in this Court and so the Registry of this Court as any
error therein may be disastrous for any of the parties.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeals disposed of.
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