JUDGMENT
Shiv Kumar Sharma, J.
1. This is plaintiff’s second appeal against the decree and judgment dated July 21, 1979 of the District Judge Sawai Madhopur reversing the decree and judgment dated October 17, 1977 of Munsif Sawai Madhopur whereby plaintiff’s suit for possession of the suit land was decreed and the defendants to remove their material from the suit land and to close the door and windows. The defendant respondents have filed cross objection.
2. This court while admitting the appeal on January 21, 1980 framed following substantial question of law:-
(i) Whether the interpretation put by the learned District Judge on the various documents of the title showing the ownership of the disputed land of the plaintiff is proper or not?
(ii) Whether the sale of the disputed land by the Municipal Board, Sawai Madhopur without the permission and approval of the Collector is proper or not?
(iii) Whether the lower appellate court could have ignored the site inspection note of the learned Munsif while deciding this appeal and in the absence of failure to take into consideration the said inspection note, the judgment of the learned District Judge is vitiated or not?
In case the decision of the learned Munsif in the matter of appreciation of evidence is not improper, was the District Judge empowered to set aside and give a different version of his own in the circumstances?
3. Initially this appeal was decreed on January 17, 2000 but the review application filed by the defendant respondents was allowed on May 27, 2002 and the appeal was posted for hearing. Now learned counsel for both the parties made oral as well as written submissions.
4. The plaintiff instituted the suit in the Court of Munsif Sawai Madhopur with the averments that on the northern side of his house there is an open piece of land owned and possessed by him since the time of his ancestors. Then defendants house is situated on the eastern side of the said land. The defendants on Feb. 24, 1956 submitted an application in Tehsil Sawai Madhopur to purchase a piece of land measuring 31’4 x 32′ for constructing a Nohra. The defendants thereafter took over possession of the some part of the land. The Municipal Board Sawai Madhopur vide its order dated Feb. 2, 1958 sold the land measuring 39′ 6″ x 32′ 4″ out of the land of the plaintiff’s chowk. The plaintiffs grand father Amar Lal preferred appeal against the said decision. The Additional Collector Sawai Madhopur vide order dated December 18, 1959 held that the land belonged to Amar Lal and sent the matter for confirmation. The State Government vide its order dated August 5, 1960 confirmed the decision of the Collector. In pursuance thereof the Municipal Board asked the defendants vide its notice dated 20, 1961 (Ex. 6) to vacate the land which they had taken from the Municipal Board. The defendants however did not vacate it. The plaintiff thereafter filed the civil suit whereas the defendants preferred writ petition against the order of the Government. This Court vide order Ex.A-15 did not accept the prayer of the defendants in respect of quashing of the order of the Collector (Ex. 4) and the Govt’s order (Ex.5) but directed that the defendants shall not be dispossessed from the land during the pendency of the civil suit. The civil suit of the plaintiff thereafter was decreed as indicated herein above.
5. It is contended by learned counsel for the defendants that the learned appellate court after considering the documents Ex.1, 3, 7, 8, 9 and 10 rightly held that they did not establish the owner-ship of the plaintiff in regard to suit land. Learned appellate court relying on the decision of High Court held that Additional Collector had no jurisdiction to decide the dispute of ownership and also that he had no jurisdiction to hear the appeal under Section 170( 12) of the Municipal Act. The trial Court erred in holding that the dispute was related to Land Revenue Act. The objections filed by Amar Lal (grand father of plaintiff) regarding his house recorded as Government land in survey sheet, was decided by Nayab Tehsildar on July 25, 1952 (Ex. 24). Since Amar Lal did not file any objection and order of Nayab Tehsildar attained finality, the plaintiff is estopped from claiming the suit land. It is further submitted that site plan Ex. 17 showing part of the construction approval could not prove that the plaintiff was the owner of suit land. It is further contended that learned appellate Court considered the partition deed Ex. 16 carefully and held that plaintiff destroyed the original document by putting ink on important part of the document which is evident from the perusal of certified copy of the said document. It was therefore held that the land in dispute was Govt. land and Ex. 16 did not prove ownership of plaintiff as in Ex. 16 there is only reference of vacant Part land in North of Haveli. The finding of appellate court is finding of fact based on correct appreciation of evidence. The learned appellate court according to defendants has rightly decided the issues No. 5 & 6 in favour of defendants and suit was rightly dismissed. There is no error or perversity in the judgment of the learned appellate court and no substantial questions of law arise in the instant appeal.
6. Per contra learned counsel for the plaintiff supported the findings of the learned trial judge and canvassed that the learned lower appellate court did not properly appreciate the oral and documentary evidence and wrongly presumed that the suit land was Government land.
7. I have given my thoughtful consideration to the rival submissions and carefully weighted the material on record.
8. Learned appellate court has reversed the finding of the trial Court after re-appreciating the documents. The appellate court has observed that the order of Additional Collector (Ex. 4) is without jurisdiction and since order of State Government (Ex. 5) and notice dated June 20, 1961 (Ex. 6) of the Municipal Board were based on Ex. 4, they are also void and ineffective. These documents have been discussed by the appellate court in paras 42 to 44 of the impugned judgment. A look at the order of the State Govt. (Ex. 5) demonstrates that directions of the State Govt. were incorporated in it. This document is not based on the observations made by the Additional Collector in Ex. 4. Both the parties were heard by the State Government at length and thereafter a decision was taken and letter of confirmation was issued. This court in the writ jurisdiction also did not quash the orders Ex. 4 and Ex. 5. Thus learned appellate Court was not right in holding that orders of the Additional Collector (Ex. 4) and-State Government (Ex. 5) were void and ineffective.
9. Ex. 16 is the original partition deed and Ex. 16A is the map annexed with the said deed. Ex. 16A-I is the partition deed from Tehsil record and Ex. 16A-2 is the map annexed with the partition deed. These documents have been discussed by the appellate Court in paras 52, 53 and 73 of the impugned judgment. Learned appellate court observed that some of the land adjacent to the house of the plaintiff belongs to the plaintiff and rest of the land belong to Jain Temple. I have closely scrutinized the documents Ex. 16A and Ex. 16A-1 as well as the site inspection note made by the Munsif on November 23, 1976. The measurements given in the documents Ex. 16Aa and Ex. 16A-1 find support from the site inspection note. Learned appellate has overlooked the site inspection note. The observations of the appellate court are against the measurements given in Ex. 16A-2. If Ex. 16A-2 is so interpreted that only some of the land adjacent to the house of the plaintiff belongs to the plaintiff, if will be fallacious being against the documents Ex. 16 and Ex. 16A. Ex.l6A-l and Ex.l6A-2. In my view the measurements given in Ex. 16A-2 is in complete harmony with the details of boundary given in Ex. 16 and Ex. 16A. The measurements given in Ex. 16A and Ex. 16A-2 cannot be ignored. In order to determine the extent of land and courtyard of the plaintiff the appellate court ought to have looked into Ex. 14 (title deed of the suit land) which defines the extent of area upto the house of Jain Temple. Ex. 14 contains two chowks lying on the South and North of the house of the plaintiff. But the appellate court also overlooked Ex. 14.
10. It also appears that learned appellate Court did not properly consider the judgment of this Court Ex. A-15 passed in writ jurisdiction. The defendants in the writ petition prayed that orders of Additional Collector (Ex. 4) and State Govt. (Ex. 5) be quashed but this Court did not quash the said orders but only stayed the dispossession as the civil suit was pending.
11. In para 73 of the impugned judgment learned appellate court has presumed that the vacant land must be presumed to be Govt. land. In my considered opinion such presumption only arises where there is a dispute between the Govt. and the private person. In the instant case there is a dispute between the private persons and the possession of the plaintiff is evident from the judgment of Tehsil dated July 25,1952 (Ex. 24).
12. Learned trial court had decreed the suit of the plaintiff in view of the established facts that the plaintiff had been in the possession of the land not because it was a vacant piece of land but because it was owned by the plaintiff and his predecessors. The plaintiff has established that he was in possession of the suit land as owner and obtained permission to make construction over it and the defendants had no right to encroach upon the suit land and dispossess the plaintiff.
13. Their Lordships of Supreme Court in Bhusawal Municipality v. AE Co. Ltd. indicated that misconstruction of such a document on which the claim of the party Is based would be an error of law which the High Court is competent to correct in second appeal.
14. I am satisfied that learned appellate court has misconstrued the documents Ex. 4, Ex. 5, Ex. 6, Ex. 16A, Ex. 16A- l,Ex. 16A-2, Ex. 14and Ex. A-15 and thus committed error of law. Finding of the learned trial Court relating to issue No.2 that the plaintiff was in possession of the suit land and he was illegally dispossessed fk>m it by the defendants in 1956 was based on proper appreciation of evidence. Learned appellate court committed an error of law in reversing the finding of the trial Court. As many as four substantial questions of law were framed by this Court while admitting the appeal on January 21, 1980 and this appeal deserves to be allowed on the ground that the findings of the appellate Court are based on misconstruction of the documents.
15. In so far as cross objections of the defendants are concerned. I am of the view that no substantial question of law is involved in the said objection. Both the courts below are of the view that the of plaintiff is within limitation. This concurrent finding is not against law and facts on record. Municipal Board Sawai Madhopur gave notice on June 20, 1961 to the defendants to vacate the land and obtain refund of the sale consideration, despite that the defendants did not vacate it and the plaintiff had lo file civil suit. The suit was filed within limitation.
16. I find my self unable to agree with the submissions advanced by learned counsel for the defendants. How the plaintiff could be held responsible for destroying the document F.x. 16. The observations of learned appellate court that it was the plaintiff who was responsible for destroying the document Ex. 1G by putting ink on the important part of the document is without any basis. If there was any suspicion part of the document is without any basis. If there was any suspicion about the document Ex. 16 inquiry could be initiated. The findings arrived at by the learned trial Court could not have been reversed on the basis of surmises and conjectures.
17. From what I have discussed herein above. I find merit in the second appeal. The appeal succeeds and stands allowed, judgment and decree dated July 21, 1979 of the District Judge Sawai Madhopur stand sel aside and the judgment and decree dated October 17, 1977 of the Munsif Sawai Madhopur are confirmed. The plaintiff shall be entitled to the costs of this second appeal.