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Lehru and ors. Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition Nos. 1188 and 1215 of 1981
Judge
Reported in1982WLN(UC)524
AppellantLehru and ors.
RespondentThe State of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredSmt. Vimla Devi v. Jang Bahadur
Excerpt:
constitution of india - article 226 & rajasthan tenancy act, 1955--section 212--jurisdiction of high court--question of temporary injunction in dispute--order of revenue board passed without considering relevant material on record--held, high court is empowered to interfere.;this court is certainly empowered to interfere in the orders of the board of revenue, if the same have been passed without considering the relavant meterial placed on record, and taking into consideration the erroneous presumption and by applying or adopting wrong and erroneus approach and reasoning.;(b) rajasthan tenancy act, 1955 - section 212--land not in danger of being wasted and requirements of section 212 not satisfied--petitioners in continuous possession as sub-tenant--held, order of appointment of.....m.c. jain, j.1. these two writ petitions are directed against the composite order of the board of revenue, rajasthan, ajmer dated june 2, 1981 whereby, the petitioners' revision petitions no. 116 of 1980 and 117 of 1980 were dismissed.2. the case has a chequered history. it would be proper to advert to some material facts.3. the petitioners instituted suit no. 109 of 1977 on august 18,1977 in the court of sub-divisional officer, udaipur for declaration and for permanant injunction with the allegations that 13 khasras measuring 11 bighas 6 biswas were let out to their ancestors by shri laxmansingh rajput tak, the ancestor of defendant no. 1 chunnilal, on migear sudi 10 s.y. 1955 and since then, the ancestors and after them, the plaintiffs are in their possession and they have been.....
Judgment:

M.C. Jain, J.

1. These two writ petitions are directed against the composite order of the Board of Revenue, Rajasthan, Ajmer dated June 2, 1981 whereby, the petitioners' revision petitions No. 116 of 1980 and 117 of 1980 were dismissed.

2. The case has a chequered history. It would be proper to advert to some material facts.

3. The petitioners instituted Suit No. 109 of 1977 on August 18,1977 in the court of Sub-Divisional Officer, Udaipur for declaration and for permanant injunction with the allegations that 13 khasras measuring 11 Bighas 6 Biswas were let out to their ancestors by Shri Laxmansingh Rajput Tak, the ancestor of defendant No. 1 Chunnilal, on Migear Sudi 10 S.Y. 1955 and since then, the ancestors and after them, the plaintiffs are in their possession and they have been cultivating the same. In the Settlement of S.Y. 1987, the name of grand-father of the plaintiffs Lehru, Kanhaiyalal, Devilal, Laxman and uncle of the plaintiffs Partha namely; Gamana was recorded as Shikmi Kashtkar. Gamana's brother Kana was also cultivating along with him and after the death of Gamana and Kana, Amra the father of plaintiffs Lehru, Kanhaiyalal, Devilal and Laxman son of Shavlal and Pratha son of Kana had been in the cultivatory possession of the land. At the time of the settlement of S.Y. 1987, the land was mortgaged to one Shri Khemraj. So, the name of Shri Khemraj was entered as Khatedar. After redemption of the land, Chunnilal defendant No I was recorded as Khatedar of the land. However, the plaintiffs continued to be in the cultivatory possession of the land as sub-tenants. The plaintiffs alleged that they were sub-tenants on the date of the commencement of the Rajasthan Tenancy Act, 1955 (for short 'the Act') and even in the year 1961, the entries of the settlement Jamabandi for S.Y. 1987 continued, it was further alleged by the plaintiffs that the name of defendant No. 1 Chunnilal was wrongly continued as Khatedar in the Jamabandi upto May 5,1970. By operation of the law, the plaintifft became khatedars of the land. Defendant No 1 illegally entered into an agreement to sell the land in question with the defendant No. 5 Deena Nath on February 22, 1974 and defendant No. 5 Deenanath obtained a decree for specific performance of contract and in execution of the decree, the Additional District Judge executed the sale-deed in respect of the land in question on April 17, 1975 in favour of the defendant No. 5. Therefore, the defendant No. 5 got mutstion effected in his name as khatedar of the land on May 13, 1977 in place of the name of Shri Chunnilal. The plaintiffs sought a declaration that they were and are the khatedars of the land and the defendants be restrained from interfering in their cultivatory possession of the land.

3. Along with the filing of the plaint the plaintiffs submitted an application for temporary injunction under Section 212 of the Rajasthan Tenancy Act read with Order XXXIX, Rules 1 and 2 and Section 15(sic)2, CPC, which was registered as Miscellaneous Application Not 129 of 1977. The Sub Divisional Officer, Udaipur after hearing the parties, vacated the temporary injunction by his order dated January 4, 1978. The plaintiff's preferred an appeal against that order and their appeal No. 34 of 1978 was allowed by the Revenue Appellate Authority, Udaipur on June 6, 1978. The defendant Deenanath went in revision before the Board of Revenue and his revision No. 106 of 1976 was allowed on February 7, 1979 and the order of the Revenue Appellate Authority was set aside and the order of the Sub-Divisional Officer dated January, 1978 was restored.

4. Thereafter, on March 23,1979 the defendant Deenanath submitted an application under Section 212 of the Act for appointment of a receiver alleging that the plaintiffs' application for temporary injunction has been rejected on the basis that the defendant Deenanath has been put into possession of the land on May 9, 978 by the court of Addl. District Judge, Udaipur in execution of the decree for specific performance. It was alleged that the plaintiffs taking undue advantage of the order of the Revenue Appellate Authority dated June 6,1978 whereby, the defendant was restrained from interfering in their possession, indulged into forcible interference in the possession of the defendant and damaged the crops sown by him. It was alleged that the plaintiffs are bent upon demaging the land and deprive the defendant from its legitimate use and occupation, so the defendant Deenanath prayed for appointment of receiver. The Sub-Divisional Officer, Udaipur by his order dated May 15, 1979 allowed the application and appointed Tehsildar, Girwa as receiver. On the same day i.e. May 15,1979, the plaintiffs moved an application under Sub-section (2) of Section 212 of the Act that the plaintiffs are prepared to give cash-security, so the order for cash-security may be passed and order of appointment of the receiver may be withdrawn. The sub-Divisional Officer by his order dated May 21, 1979 allowed the plaintiffs' application and ordered the plaintiffs to deposit Rs. 2,000/- every year byway of cash-security on the 1st June and it was further ordered that the cash security for that year be deposited within a week. In case the security is not deposited within the prescribed time, the order for appointment of the receiver will remain in force, else it will stand withdrawn. The plaintiffs' appeal No. 353 of 1979 against the order of appointment of receiver was dismissed by the Revenue Appellate Authority on September 9 1980 and Deenanath's appeal No. 342 of 1979 against the order of the Sub-Divisional Officer dated May 21, 1979 for cash-security was allowed and the order of the Sub-Divisional Officer was set aside.

5. The plaintiffs-petitioners preferred two revision petitions before the Board of Revenue, Ajmer Revision Petition No. 116 of 1980 was directed against the order of the Revenue Appellate Authority in appeal No. 342 of 1979 filed by Shri Deenanath relating to allowing the plaintiffs to give cash-security and revision petition No. 117 of 1981 was directed against the order for appointment of the receiver to manage the suit property till the disposal of the suit. Both the revisions petitions were dismissed by the Board of Revenue by its order dated June 2, 1981.

6. Dis-satisfied and aggrieved with the order of the Board of Revenue the present petitioners, whose revision petitions were dismissed, have approached this Court for the exercise of the extra-ordinary jurisdiction of this Court under Art. 226 of the Constitution. The writ petition No. 1180 of 1981 involves the question of appointment of receiver and writ petition No. 1215 of 1981 involves the question of cash-security.

7. We have heard Mr. Lekhraj Mehta, learned Counsel for the petitioners and Mr. H.M. Parekh, learned Counsel for the non-petitioner No. 5 Deenanath and Mr. N.N. Mathur, learned Counsel for the non-petitioners Nos. 6 to 9.

8. At the out set, we may state that the present writ petitions are directed against the interime orders passed in a revenue suit for declaration and permanent injunction. We are alive that in the exercise of certiorari jurisdiction, a clear case has to be made out, which may call for interference, more particularly when the orders sought to be challenged are interlocutory in nature.

9. Mr. Mehta, learned Counsel for the petitioners vehemently and strenuosly urged that the Board of Revenue adopted, not only wholly wrong and erroneous approach, to the question of appointment of receiver, it has seriously erred in law, in not considering the documents submitted by the petitioners, particularly the agreement of sub-lease of S.Y. 1956, Settlement Jamabandi of S.Y. 1987, Girdhawaries of S.Y. 2011 2019 & Gir hawari from S.Y. 2031 onwards, the affidavits filed by the petitioners along with electricity bills and vouchers He submitted that had the documents been considered in their correct perspective, the land in question would not have been treated to be a land 'in medio' and the non-petitioner Deenanath would not have been deemed to be in possession of the land. Mr. Mehta submitted that if once the ancestor of the plaintiffs is found to be subtenant of their land, then it should be presumed that their heirs and successors continued to remain in occupation of the land as sub-tenants, when there was sufficient material of corro orative character to establish that their successors in fact cultivated the land and continued in occupation thereof. He emphatically and seriously contended that the petitioner were not parties to the suit for specific performance of the contract for sale and as such, the decree for specific performance was not binding on them and further in execution of the decree the present petitioners were not put out of possession on the alleged date of dispossession i.e. May 9, 1978. The petitioners' crop was standing on the land in question. The learned Member of the Board of Revenue was wrong in observing that the petitioners ouqht to have moved the civil court under Order XXI, Rule 99 CPC, when they were dispossessed, if wrongfully. The whole reasoning adopted by the Revenue Courts s faulty and is untenable in law. Mr. Mehta also pointed out that the non-petitioner Deenanath had moved an application under Section 212 of the Act for the appointment of receiver. Section 21 of the Act lays down the conditions when temporary injunction can be granted. Those conditions, were not at all satisfied in the present case. The receiver can be appointed under Section 212 of the Act, if those conditions exist & when the court thinks it necessary, then a receiver can be appointed. He urged that the land in question was not in the danger of being wasted, damaged or alienated by the petitioners. So, there was no question of appointment of receiver on the land in question. Besides that, the facts of the present case did not make out a case for the appointment of receiver in exercise of the inherent powers of the court. A party in lawful possession of the land can not be deprived of the same by appointment of the receiver in the exercise of inherent powers. The learned Member of the Board of Revenue, according to Mr. Mehta has seriously erred in law in ignoring the well established principles for appointment of receiver and in upholding the order for appointment of receiver in exercise of the inherent powers.

10. Mr. Parekh, on the other hand refuted the submissions of Mr. Mehta and supported the order of the Board of Revenue. He urged that Chunnilal contested the suit for specific performance of contract right upto the High Court and a decree was passed by the High Court on July 31,1974. When Chunnilal failed to execute the sale-deed, as per the decree, the sale-deed was executed and got registered by the Addl. District Judge on April 7, 1975. Not only that, another suit was filed by the sons and widow of Chunni Lal for declaration and injunction, but the same was also dismissed by the District Judge on August 10, 1977 and it was in execution of the decree, the non-petitioner was put into actual physical possession of the land on May 9, 1978. The Revenue Courts have rightly found that the plaintiffs-petitioners have not been able to prima facie establish that they were sub-tenants in the land and they have acquired any khatedari rights. On the contrary, it has been prima facie found that the non-petitioner Deenanath was recorded as khatedar of the land in question and there has been interference in his possession, which is evident from the proceedings under Section 107, Cr. P.C. as it was a fit case for the exercise of inherent powers for appointment of receiver. Even if, the property may not be 'in medio' still the order for appointment of receiver is not liable to be quashed on that ground. The inherent powers can be exercised for the appointment of receiver where the property may not be in medio. Mr. Parekh urged that the Board of Revenue was only hearing the revision petitions and so, it was not necessary for the Board of Revenue to deal with the documents and affidavits like the original court or the first appellate court. It has agreed with the view taken by the courts-below, which have considered the entire material on record and after consideration thereof, they have found the present case fit for the appointment of receiver and for declining to accept the cash-security from the present petitioners. He urged that it is hardly a case for interference by this Court in the exercise of extra-ordinary certiorari jurisdiction.

11. We have considered the rival submissions of the learned Counsel for the parties.

12. The case mainly and primarily hinges on the question as to whether, the Revenue Courts have considered the documentary evidence placed on record by the parties in its correct perspective. It appears that the Revenue Courts have attached great importance to the execution of warrant of dispossession, whereby it is said that the non-petitioner Deenanath had been put into possession of the land in dispute. Great weight has been given to the report of execution of the warrant of dispossession. It seems it is considered that Deenanath having been recorded as khatedar tenant of the land in question in place of Chunnilal in pursuance of the decree for specific performance and he having been put into possession of the land, the plaintiff-patitioners can not be considered to be in the possession of the land under any legal title Their possession is no way better than that of the trespassers, so the tresspasser's possession can not le protected & one, who holds legal title over the land as khatedar tenant and one who has once been put into possession, his rights have to be protected. It has also been considered that the plaintiffs petitioners have not been able to establish that they continued to occupy the land in their capacity of sub-tenant. They were not so recorded in the annual registers or record of rights, so they can not be claim to be sub-tenants over the land.

13. Importance has been attached to the earlier order of the Board of Revenue passed in Revision Petition No. 606 of 1978 decided on Feb. 7, 1979 whereby, the trial court's order dated January 4, 1978 vacating the temporary injunction was maintained. The learned Member of the Board, besides observing, that the khasra-Girdhawari is not a record of right and is not an annual register and it is nowhere mentioned in the khasra-girdhawan that Pratha and others are sub-tenants in the suit land and relied on a decision of the Supreme Court in Smt. Sonawati and Ors. v. Shri Ram and Anr. (MR 1968 SC 466), has stated that Deenanath got delivery of possession through the court so, he must hi deemed to be in possession and the plaintiffs petitioners failed to take action as contemplated in rule 99 of Order 22 CPC. The learned Member further proceeded to consider that there is a catena of decisions, wherein, it is held that where the property is 'in medio', a receiver can be appointed and that can be done under the inherent powers. The suit-land was held to be 'in medio' as regards the electricity bills and vouchers, the learned Member of the Board of Revenue observed that the non-petitioner Deenanath had filed the suit for specific performance in the year 1964. That suit was hotly contested by Chunnilal & subsequent suit by Chunilal's heirs also failed. So, it is likely that Chunnilal got the electricity bills and vouchers in the names of the plaintiffs. A further reasoning has been employed by the learned Member of the Board of Revenue that the plaintiffs' case is that their grand-father Gamana was let into the possession as a subtenants in S.Y. 1955 on an annual rent of Rs. 75/-. But the plaintiffs are silent as to whether there has been any variation in the rent for the long years that followed and whether the plaintiffs also paid any rent and if so, till what time. It is by employing the above reasoning, the findings were affirmed and it has been held that neither there has been mis-reading and nun-consideration of any document nor there is any infirmity in the order of appointment of a receiver.

14. It is to be seen as to whether the reasoning employed by the Board of Revenue is correct and whether the matter has been considered in its correct perspective. To us, it appears that the Board of Revenue misdirected itself in finding that the property is 'more or less in medio'. It may at once be stated that the property is said to be 'in medio' when no party claims to be in possession of the property. In T. Krishnaswami Chetty v. C. Thangavela and Ors. AIR 1935 Mad 430 one of the principle propounded for appointment of the receiver is that

an order appointing a receiver will not be made where it has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. If the dispute is as to title only, the Court very reluctantly disturbs possession by receiver, but if the property is exposed to danger and loss and the person in possession has obtained it through fraud or force the court will interpose by receiver for the security of the property. It would be different where the property is shown to be 'in medio' that is to say, in the employment of no one, as the Court can hardly do wrong in taking possession, it will then be the common interest of all the parties that the Court should prevent a scramble as no one seems to be in actual lawful enjoyment of the property and no harm can be done to any one by taking it and preserving it for the benefit of the legitimate who may prove successful. Therefore, even if there is no allegation of waste and mis-management the fact that the property is more or less 'in medio' is sufficient to vest a court with jurisdiction to appoint a receiver- 'Nilambar Das v. Mabal Benari AIR 10927 Pat. 220 224); 'Alkama Bibi v. Syed Istak Hussain AIR 1925 Cal. 970; 'Mathnria Dabya v. Shibdayal Singh 14 Cal. WN 252(226); Bhubansewar Prasad v. Rajeshwar Prasad AIR 1948 Pat 195; Otherwise a receiver should not be appointed in supersession of a bonafide possessor of property in controversy and bona fides have to be presumed until the contrary is established or can be indubitably inferred.

15. In the facts and circumstances of the present case, it can not be said that the land in question is 'more or less in medio'. It can not be gainsaid that the petitioners were in de facto or in actual possession of the land. The kheera-girohawari of S.Y 2031 to 2035 amply show their actual occupation over the land. They had grown vegetables and cultivated the land. Even, on the date of the alleged dispossession i.e. May 9, 1978 in various khasras, the vegetables were already grown and standing. It is not the case of the non-petitioner Deena Nath that after 9 5.1978, the alleged date of dispossession it was he, who reaped the vegetable produce and after reaping the produce, he further cultivated the land or had grown any vegetables thereon. We would be examining the document dated May 9, 1978 (Ex.Article/1) independently Presently, we are only considering the question as to whether, in the circumstances of this case, it can be said that the property is 'in medio'. To us, it appears that the petitioners continued in occupation of the land and that the petitioners were not allowing Deenanath to enter into possession, so Deenanath initiated the proceedings under Section 107, Cr. PC It is significant to note that the petitioners had been claiming possession of the land over more than 75 years. The question of possession has to be viewed in this perspective that the plaintiffs' ancestor Gamana was inducted in the land as sub-tenant as far back as Migsar Sudi 10 S.Y. 1956, which is evident from the agreement of sub-lease. Gamana was recorded as sub-tenant or Shikmi Kashtkar in the Settlement Jamabandi of S.Y. 1987. Once, the petitioner ancestors are found to be in possession of the land in question as sub-tenants,, their continued possession can be presumed unless the contrary is shown. This presumption is further strengthened by the entries in the khasra-girdhawaries. In the khasra-girdhawan of S.Y. 2011, the name of Pratha s/o Kana Rawat is recorded in khasra Nos. 351 353 and 354 in column No 24 showing that these khasras were in his possession. Similarly, in khasra-girdhawari of S.Y. 2019, the name of Amra appears against the khasras Nos. 849. 850, 851 and 852 and the names of Amra s/o Gamana and Pratha s/o Kana appear against khasra Nos. 853, 854, 857, 858 859, 8(sic)0 & 861 in column No. 15 Khasra No.8(sic)61 was then divided into 2 parts i.e. 861/1 & 861/2 The preparation of khasra-girdhawari, thereafter was discontinued and in the khasra-girdhawaries of S.Y. 2031 to 2035, the names of the petitioners Lehru, Devilal son of Amra and the name of Pratha s/s Kana appear against khasra Nos. in the last column or each year's khasra-girdhawaries. In the khasra-girdhawaries of the intervening period, the produce grown or cultivated, is mentioned but the last column of each year is blank. In the last column of each years' khasra-girdhawaries, the name of the person occupying the khasra is mentioned and his status is not mentioned. It is true that the plaintiffs status is net recorded in the khasra-girdhawaries, but if there is continuity of possession then it can be said, that the continuity of possession would be in the same capacity, in which it is originated unless otherwise shown. As already stated above, when once, the plaintiffs' ancestor has been recorded as Shikmi Kashtkar in S.Y. 1987, the continuity of possession, in that status will be presumed and for purposes of possession, khasra girdhawaries furnish evidence of corroborative character. We may also refer here that for purposes of corroboration, the electricity bills and vouchers can also be pressed into service. The petitioners have produced the cash-memo regarding the purchase of electric pumping-set on 29.4.1966 and receipts of service connection deposit and security deposit dated May 15, 1966, the electricity inatalletion bill dated August 10, 1966, the electricity bills in the name of Amara s/o Gamanaji of the various years. It w-as only a conjecture on the part of the Board of Revenue that Chunnilal must have obtained them in the name of Amarchand. These documents should have been considered in this background that the plaintiffs and their ancestors were in possession of the land as is evident from the agreement of sub-lease, Jamabandi of S.Y. 1987 and khasra-girdhawari of S.Y. 2011, 2019 and 2030 onwards. The possession in the years, in which, the practice of making mention of the names of occupant discontinued can be considered in tie light of the electricity bills and vouchers, which will prima facie show that the plaintiff's ancestor Amara got the pumping ret installed in the well. Further, the present petitioners submitted the affidavits of Laxman s/o Shavlal, Devilal, Lahru and Kanhaiyalal son of Amaraji, Pratha s/o Kanaji, Heeralal, Bhanwarlal, Dalchand, Bherulal, Hazari and Bhagwan. With regard to these affidavits, and the affidavit filed by the non-petitioners, the Board of Revenue simply stated that the two courts have observed that 'the affidavits will not take us far and, therefore, they did not place reliance on their affidavits'. The affidavits ought to have been considered by the Revenue Courts including the Board of Revenue and they should have evaluated and assessed them in the light of the other material and the documentary evidence placed on record by the present petitioners. In a way, the affidavits have not at all been considered, which were very material and relevant. The affidavits were to the effect that the petitioners and their ancestors were in possession of the land in question as sub-tenants and what produce was raised by them find mention in the affidavits. The affidavits get corroboration from the khasra-girdhawaries. Thus, an ex facie conclusion should have been reached with regard to the possession and the nature and capacity of possession on the basis of the entire material on record. On consideration of the material, we are of the opinion, that it can be found ex-facie that the petitioners and prior to them, their ancestors are and were in occupation of the land as sub-tenants. The Board of Revenue rejected the Khasra-girdhawaries placing reliance on the decision of the Supreme Court in Smt. Somavati's case supra. That was a case,, in which, the defendant had resisted his suit on the basis that he was recorded as an occupant of the land in the khasra of 1356 Fasli (Ex. Article/1). The name of Pritarnsingh appeared in remarks column. Their Lordships of the Supreme Court observed that in order that a person may be regarded as an adivasi of a piece of land, Section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 requires that his name must be recorded in the khasra or khatauni as an occupant. Their Lordships further considered the impact of paragraph 87 of the Land Records Manual, which provided that an enquiry is to be made by a Patwari and if he thinks that a claiment is an occupant, he should enter the name in red-ink in khasra as 'Kabiz, Sajhi 'etc. Pritamsingh's name was not shown as 'Kabiz and Sajhi' nor was entry posted in red-ink. So, it was held by the Supreme Court that relying upon the entry of his name in the remarks column in the khasra for 1356, Fasli, Pritamsingh could not claim that he had established his rights as an adivasi of the land. This authority, in our opinion, can not be pressed into service and reliance can not be placed on it. The names of the present petitioners appear in the last column of khasra-girdhawaries as referred to above and the last column is meant for recording changes in the rights, possession etc. As a matter of fact, the names entered in the last column show as to who were in the actual possession over the land in question. It is true that the status as such is not mentioned in the last column. But, the question of status should have been taken into consideration in the light of the important documentary evidence in the form of Agreement of Sub-lease and Settlement Jamabandi of the year 1987.

16. After the arguments were concluded on August'18, 1982, an application was submitted by the non-petitioner No. 5 Shri Deenanath, stating therein that under the Kanoon Mal Mewar and Kanoon Bandobast Shikmi Kashtkars had no rights and Section 41 thereof, was reproduced. The sub-lease under that provision may be temporary and a shikmi may be evicted with or without notice and he may not be having any right of succession or transfer. Never the-leas prima facie the fact remains, that the petitioners and before them their ancestors continued to remain in occupation of the land and they were never dispossessed from the land in due course of law. If the petitioners were allowed to remain in occupation of the land, their status or capacity would remain unchanged.

17. We now proceed to consider another material aspect of the case, which relates to the delivery of possesion to the non-petitioner Deenanth, in execution of the decree on May 9, 1978. Mr. Mehta, learned Counsel for the petitioners referred to the earlier report of the Amin made on the warrant of dispossession and by reference to that report, he submitted that the petitioner resisted the delivery of the possession and so, it was obligatory for the non-petitioner Dennanth to have moved an application under Order XXI, Rule 97, C.P.C. But, instead of resorting to that proceeding, he adopted an easier and manipulated course of getting possession in the manner as is said to have been done on May 9, 1978. He pointed out that the report of May 9, 1978 does not show that the occupant of the land consented for the delivery of the possession. If the occupants had given their consent, their signatures of thumb impressions would have been obtained. The report shows that some male and females resisted the delivery of possession, but they were brought round and thereafter, the possession was delivered to the non-petitioner. Possession was simply delivered on paper and in fact, no actual physical possession was delivered and the petitioners were never dispossessed from the land. So, it was not necessary for the petitioner to move the Civil Court for restoration of possession under Order XXI, Rule 99, C.P.C. The Revenue Courts were wrong in considering that the petitioners failed to avail the remedy under Order XXI, Rule 99, C.P.C. We find force in the submissions of Mr. Mehta. It is true that we cannot look into any other report prior to May 9, 1978 as the same has not been placed on record. But prima facie, we find that the petitioners were not put out of possession of the land. If they would have been a willing and consenting party to the delivery of possession, their signatures and thumb impressions would have been obtained in taken thereof. Viewed in this light, the entire approach of the matter appears to be erroneous and on account of this erroneous approach, the petitioners, prima facie, have been taken as trespassers over the land.

18. Mr. Parekh, learned Counsel for Deenanath non-petitioner, vehemently contended that the Revenue Courts have committed no error of jurisdiction nor have committed any illegality or material irregularity in the exercise of jurisdiction. On hearing the revision petitions, the Board of Revenue was right in dismissing the revision petitions and it did not commit any illegality or material irregularity, as this Court should not interfere in the orders of Board of Revenue in its certiorari jurisdiction. As regard the exercise of the revisional powers, Mr Parekh has placed reliance on the decisions of the Supreme Court in Keshardeo Chamria v. Radha Kishan Chamria and Ors. : [1953]4SCR136 , Pandarang Dhandi Chough and Ors. v. Maruti Hari Jadhav and Ors. : 1956CriLJ326 and on a Full Bench decision in Harak Chand v. State of Rajasthan and Ors. (1970 R.L.W. 320). This contention of the learned Counsel, in our opinion, has no merit, in view of the fact that the Board failed to consider the material and relevant documents and not only that, whatever documents have been considered, the same have not been considered in their correct perspective and thus, the Board committed an illegality or material irregularity in the exercise of jurisdiction. Reference in this connection may be made in Smt. Vimla Devi v. Jang Bahadur (1977 R.L.W. 3 6), wherein Joshi, J, has observed that the interference with discretionary order under Order XXVI, Rule 10, C.P.C., however, may be justified, if the lower court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without all considering the relevant records.

19. We may also refer here one of propositions stated by 'De Smith's' in his treatise on the Judicial Review of Administrative Action, Fourth Edition, in Part II relating to the principles and power of Judicial Review in Chapter III on vires, jurisdiction, law and fact. While dealing with the scope of review of law and findingfind of fact, one of the propositions stated at page 136 is as follows:

(5). The concept of error of law includes the giving of reasons that are had in law or (if there is a duty to give reasons) inconsistent, unintelligible or it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof and wrong admission or exclusion evidence, as well as arriving at a conclusion without any supporting evidence (emphasis supplied)

20. In the light of the above propositions, this Court is certainly empowered to interfere in the orders of the Board of Revenue, if the same have been passed without considering the relevant material placed on record, and taking into consideration the erroneous presumptions and by applying or adopting wrong and erroneous approach and reasoning.

21. The matter can also be viewed from another angle. The order for appointment of a receiver is justified on the ground that it is passed in the exercise of inherent powers Under Section 212 of the Act, the temporary injuction can be ordered, if the land is in danger of being wasted, damaged or alienated. If such a situation exists, the court is empowered to grant injuction or if necessary appoint receiver over the suit-lond. It has not been found that the land is in danger, of being wasted, damaged or alienated. So, the requirements of Section 212 of the Act are not satisfied in the present case. Question is as to whether in the exercise of inherant powers, the receiver could have been appointed. The facts and circumstances of the case, as already considered, in our opinion, did not call for the exercise of inherent power of the appointment of a receiver on the land in question, conceding, without examining, that the revenue court does possess inhearent powers for appointment of a receiver. It is pertinent to note that the very basis for the exercise of the inherent powers, for appointment of a receiver has been found to be shaky i.e. prima facie, it has been found that the petitioners were not dispossessed from the land in question and they have been in continuous possession of the land since long in their capacity as sub-tenants and on this ex facie view, the inherent powers for appointment of a receiver, in our opinion, cannot & should not be exercised. Thus, in any view of the matter, the order for appointment of a receiver cannot be sustained. Therefore, the orders of Board of Revenue deserve to be quashed and consequently, the order of appointment of receiver as well, deserves to be quashed.

22. Before parting with these writ petitions, we may, however, observe that the views and opinions expressed here in above would not in any way affect the merits of the case. After trial, the revenue courts will be free to arrive at their own findings and conclusions, when they are called upon to decide the case, uninfluenced by the view expressed in this order.

23. In the result, both the writ petitions are allowed and the order for appointment of a receiver dated May 15, 1979 of the Sub-Divisional Officer and the orders of the Revenue Appellate Authority dated September 9,1980 and of the Board of Revenue dated June 2,1981 affirming the order of appointment of receiver, are quashed and set aside. Consequently, the order allowing furnishing of cash security falls.

24. In the circumstances of the case, we make no order as to costs.


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