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Natha Ram and ors. Vs. Bhika and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Misc. Writ Petition No. 109 of 1977
Judge
Reported in1979WLN(UC)468
AppellantNatha Ram and ors.
RespondentBhika and ors.
DispositionPetition dismissed
Cases ReferredAjmer and Ors. v. Rao Balden Singh and Ors.
Excerpt:
.....that she plaintiffs have failed to establish that they were admitted as tenants over the whole field. parwati, observed that the appellants failed to point out any legal defect in the findings of the two lower courts and consequently dismissed the second appeal. a writ of certiorari can be issued for correcting errors of jurisdiction commuted by inferior courts or tribunal :these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. 13. it also observed that,-though it would have been better if the tribunal had given reasons for its finding, the failure of the appellate tribunal to give a reason in that behalf or to refer specifically to the evidence adduced by one party would..........has found that the defendant is in cultivatory possession of the two-third portion of the field. the findings arrived at by the assistant collector were affirmed by the revenue appellate authority and it was not necessary for the first appellate court to deal with the evidence in the same manner as was done by the trial court in an affirming judgment. it was also urged by shri joshi that before the board of revenue, apart from the question of adoption, the only point urged by the plaintiffs, was that before the settlement officer, mst. parwati mentioned in the application that she had only one-half share in the disputed field. in face of such an averment in the averment in the application the final order of the settlement officer was wrong and the settlement 'parcha' was got.....
Judgment:

M.C. Jain, J.

1. The petitioners by this writ petition seek to challenge the validity of the judgment of the Board of Revenue dated 18-1-1977, whereby it dismissed the Second Appeal and affirmed the judgment and decree dated 18-11-1972 passed by the Revenue: Appellate Authority. Jodhpur, which in turn affirmed the judgment and decree of the Assistant Collector, Banner, dated 30-8-1971, dismissing the petitioners* suit under Sections 88 and 188 of the Rajasthan Tenancy Act (hereinafter referred to as 'the Act').

2. The facts leading to the present writ petition may be briefly noticed Ramlal (since deceased) and his son Natharam instituted a suit (No.59 of 1970) against Bhika and Punja under Section 88 and 188 of the Act in the Court of Assistant Collector, Barmer. It was averred by the plaintiff-petitioners that they had been in cultivatory possession of the field known as 'Doliwaal' comprised in 'Khasara' No. 426 measuring 136 'bighas' and 1 'biswa' situated in village Dokha since generations, but the defendant No. 1 Bhika wanted to forcibly dispossess them from the field in dispute. It was stated that in the year 1956 Settlement 'parcha' was issued in favour of Ramlal, plaintiff No. 1, but Mst. Parwati got the 'Parcha' revised on 26-12-1956 without notice to them, whereby two third share in the field was recorded in her name in the 'parcha'. However, in the revenue record Ramlal continued to be recorded as 'khatedar' of the whole field till St. 2020. In St. 2021 the defendant Bhika got the name of Parwati entered as 'khatedar' of two-third share in the 'jamabandi' without notice to the plaintiffs The plaintiffs thereupon moved an application under Section 136 of the Rajasthan Land Revenue Act before the Sub-Divisional Officer, Banner, on 27-11-1966. The said application was allowed by the Sub Divisional Officer, Banner, on 25-7-1970 and it was ordered that the entire 'khasara' No. 426 be entered in the 'khatedari' of Ramlal, plaintiff No. 1, and correction in 'jamabandi' be made. On these facts the plaintiffs, therefore, prayed that they may be declared as 'khatedar-tenants' of the field in question and the defendants be restrained from interfering in their cultivatory possession.

3. The defendants submitted their written statement in which the plaintiff's claim was denied and it was asserted that the two-third share in the field in question was of Mst. Parwati and the plaintiffs have only one-third share. Previously the 'parcha' in respect of whole of the field was issued in the name of Ramlal, which was subsequently got corrected on an objection petition filed by Mst. Parwati. It was denied that the plaintiffs were in possession of the entire field since the time of their ancestors. It was further averred that the Tehsildar, Barmer, divided the field by metes and bounds at the spot on 29-8 1957 and the plaintiffs were put in possession of the third share, whereas defendant No. 1 was put in possession of his two-third share and since then the parties continue to remain in possession of their respective share. it was alleged that Mat. Parwati adopted Bhika, defendant No. 1, according to custom prevalent in the community and she also executed an adoption deed on 13 6-1955 and got the same registered on 15-6-1955.

4. The plaintiffs submitted rejoinder, in which the averments made relating to the defendants' claim over the field were denied and it was also denied that Mst. Parwati adopted Bhika.

5. The learned Assistant Collector, by his judgment dated 30-8-1971 partly decreed the plaintiff's suit and declared and plaintiffs to be 'khatedar tenants' of one-third portion marked 'ka' 'kha', 'ga' & 'gha' in plan Ex. Da/3 of 'khasara' No. 496. The plaintiff's claim for the remaining two-third portion of the field was dismissed. Aggrieved with the judgment and decree of she learned Assistant Collector, the plaintiffs went in appeal before the Revenue Appellate Authority' Jodhpur, which by its judgment dated 18-11-1972 upheld the judgment and decree of the learned Assistant Collector and dismissed the appeal. The plaintiffs then preferred second appeal before the Board of Revenue which by its judgment dated 18-1-1977 concurred In the findings of the courts below and dismissed the second appeal. It appears that plaintiff No. 1. Ramlal died during the pendency of the first appeal. The other legal representatives were brought on record. Now Nathram, plaintiff No. 2, and the other legal representatives of the deceased Ramlal have invoked the extraordinary jurisdiction of this Court for quashing the judgments Ex 5, Ex.6, and Ex.7, of respondents Nos. 3, 4, and 5, the Assistant Collector. Barmer, The Revenue Appellate Authority, Jodhpur and the Board of Revenue, Rajas-than, Ajmer, respectively and have prayed that there suit be decreed in toto against respondents Nos. 1 and 2.

6. The writ petition has been opposed by respondent No. 1, who his filed a counter to the writ petition and has submitted that the plaintiff's have failed to establish their case and so they have been rightly denied the relief in respect of two-third portion of the disputed field by all the courts.

7. We have heard Shri H. M. Parekh, learned Counsel for the petitioners and Shri Kashinath Joshi for respondent No. 1.

8. Shri Parekh, first of all, contended that the Board of Revenue and the subordinate revenue courts seriously erred in holding that Bhika was validly adopted by Mst. Parwari. He urged that according to the adoption-deed Bhika was adopted on Bhadwa Sudi 8, St. Year 2000, but the said adoption was not followed by any registered adoption-deed, which was necessary according to the law prevailing in the erst-while Marwar State.

9. Here we may observe that it is not necessary for us to go into that question in these proceedings. The petition can be disposed of otherwise. Shri Joshi learned Counsel for the respondent, rightly submitted that even if it be assumed that Bhika is not validly adopted) still the plaintiffs are required to establish their khatedari' rights over the entire field and they have to prove that they were admitted at tenants over the whole field and continued to remain in cultivatory possession thereof as such, after the commencement of the Act and in case they fail to prove, then, they are not entitled to the declaration of 'khatedari' rights in respect of whole of the field. In case they succeed to prove, they will be entitled to the relief of declaration prayed for. In either case the question of valid adoption will not be of any consequence.

10. Shri Parekh then contended that 'parcha lagan' (Ex 1) was issued by the Assistant Record Officer in favour of Ramlal in respect of she whole field. At the back of Ramlal an entry of two-third share was got made in the 'parcha' inconsistent with the application (Ex 3) of Mst. Parwati dated 3-9-1956, in which Mst. Parwati admitted one-half share to be that of Ramlal in the said field and she herself claimed the remaining one half share in it Contrary to her case, an entry of two-third share was made in the parcha' on 26-12-1956 That too, without notice to Ramlal, the 'khatedar-frnant'. It was urged by Shri Parekh that the 'jamabandi' continued to be recorded in the name of Ramlal in accordance with Ex. P/1 the original 'parcha lagan', upto St 2020. but in St. Year 2021 without any mutation, two-third share was recorded in the 'khatedari' of Mst. Parwati in the 'jamabandi'. There upon an application was moved for correction of the entry & the Sub-Divisional Officer ordered on 25-7-1970 for correction of the entries and two third share of Mst. Parwati was cancelled. Shri Parekh submitted that there is a presumption with regard to the correctness of the entries in the record of rights and 'paicha lagan'. It was for the defendant-respondents to have rebutted the plaintiffs' case. The courts below erred in not raising a presumption in favour of the plaintiffs on the basis of the entries in the record of rights. It was also contended that apart from the presumption, the plaintiffs have been successful in establishing their 'khatedari' rights over the entire field by oral and documentary evidence placed on record. It was pointed out that the Revenue Appellate Authority and the Board of Revenue had not looked into the convincing evidence adduced by 'he plaintiffs. Shri Parekh contended that where the orders of the Tribunal suffer from apparent errors of law in not proceeding on necessary presumptions of law, then such orders are liable to be quashed in certiorari jurisdiction of this Court. In support of his contention be placed reliance on the decisions of the Supreme Court in Sub-Divisonal Officer and Collector, Shivesaga v. Shri Gopal Chandra Khound and Anr. : AIR1971SC1190 , M/s Hindi Tranding Co. v. Union of India and Anr. : [1969]2SCR533 , Mohd Shafi v. VII Addl. Dist. and Sessions Judge, Allahabad and Ors. : [1977]2SCR464 .

11. Shri Joshi, on the other hard, submitted that the learned Assistant Collector in his detailed judgment considered the entire oral and documentary evidence produced by the parties and after thorough scrutiny of the evidence, came to the conclusion that she plaintiffs have failed to establish that they were admitted as tenants over the whole field. The learned Assistant Collector has found that the defendant is in cultivatory possession of the two-third portion of the field. The findings arrived at by the Assistant Collector were affirmed by the Revenue Appellate Authority and it was not necessary for the first appellate court to deal with the evidence in the same manner as was done by the trial court in an affirming judgment. It was also urged by Shri Joshi that before the Board of Revenue, apart from the question of adoption, the only point urged by the plaintiffs, was that before the Settlement Officer, Mst. Parwati mentioned in the application that she had only one-half share in the disputed field. In face of such an averment in the averment in the application the final order of the Settlement Officer was wrong and the settlement 'parcha' was got changed by an application of the respondents in proceedings, which were conducted ex parte The merits of the findings were not challenged before the Board of Revenue. It was urged that the findings arrived at by the learned Assistant Collector, were affirmed by the Revenue Appellate Authority, so on merits of the findings, nothing was urged before the Board of Revenue. He argued that the points, which have not been agitated before the Board of Revenue, should be deemed to have been abandoned and in this extra ordinary jurisdiction, it is now not open to the petitioners to raise the points, which were not agitated by them before the Board of Revenue. The Board of Revenue, after considering the contention based on the contents of the application of Mst. Parwati, observed that the appellants failed to point out any legal defect in the findings of the two lower courts and consequently dismissed the second appeal. The alleged admission of Mst. Parwati in her application dated 30-9-1956, is of no avail in view of the concurrent findings of the subordinate revenue courts that the field was actually demarcated in one-third and two third portions and the parties were actually put into possession and since then Mst. Parwati and her son remained in cultivatory possession of their portion As regards interference by this Court in the findings arrived at by the Revenue courts, Shri Joshi placed reliance on Syed Tukoob v. K.S. Radhakrishanan and Ors. AIR. 1961 SC 477 and Bachan Singh and Ors. v. Gauri Shanker Agarwal and Ors. : AIR1971SC1531 .

12. We have carefully considered the rival submissions of the learned Counsel for the parties. Before dealing with the rival submissions we may state that in Syed Yakoob's case (supra) cited by Shri Joshi their Lordships of the Supreme Court almost exhaustively enuciated the law as to when findings of fact can be interfered in the exercise of certiorari jurisdiction. The decisions cited by Shri Parekh can have no application to the case in hand for they lay down that the High Court can set aside or quash the orders when they suffer from any apparent error of law or misconstruction or misinterpretation of the provision of law or passed in violation of principles of natural justice. In Syed Yakoob v. K.S. Radhakrishanan and Ors. (supra), their Lordships of the Supreme Court stated the law as under:

A writ of certiorari can be issued for correcting errors of jurisdiction commuted by inferior courts or tribunal : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can, similarly, be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice.

The jurisdiction of High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of facts, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.

A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court.

13. It also observed that,-

Though it would have been better if the Tribunal had given reasons for its finding, the failure of the Appellate Tribunal to give a reason in that behalf or to refer specifically to the evidence adduced by one party would rot, by itself, constitute such an error in its decision as to justify the issue of a writ of certiorari under Article 226.

The argument that some evidence was not duly considered by the Tribunal, would normally pertain to the realm of the appreciation of evidence and would, as such, be outside the purview of an enquiry in proceedings for a writ of certiorari under Article 226.

14. In the light of the above principles enunciated by their Lordships of the Supreme Court, we may now proceed to consider the submissions made by the learned Counsel for the parties in the present case. It is to be seen whether in the instant case the judgments of the Revenue courts suffer from any error of law apparent on the face of the record and whether the judgments suffer from any infirmity of the nature which may call for interference in the exercise of certiorari jurisdiction.

15. As regards the relief of declaration that the plaintiffs are the 'khatedars' of whole of the field, the plaintiffs are required to establish by satisfactory evidence that they are the 'khatedars' of the field and are in cultivatory possession of the same. It may be stated that the learned Assistant Collector has thoroughly discussed the oral & documentary evidence produced by the parties, and after careful appraisal of the entire evidence, has arrived at the conclusion that there is no satisfactory evidence adduced on be half of the plaintiffs that they were admitted as tenants by Mst. Parwati over whole of the field prior to the coming into force of the Act and he has held that the entries in girdawari jamabandi made in favour of Ramlal in respect of the whole field, are wrong and useless and the plaintiffs have failed to prove that they were in possession of the whole field. The learned Assistant Collector has also found that the field was divided into one-third and two third shares in accordance with the plan Ex. Ba/3 and the defendant continued to cultivate his two-third portion of the field and to pay the land revenue in respect of that portion. It was also observed by the learned Assistant Collector that the plaintiffs could produce the Patwari to make the position clear with regard to the present cultivatory possession, but no such attempt was made by them and it cannot be said that the plaintiffs cultivated their one-third portion of the field after St. Year 2014. This one-third portion is lying vacant and they have not even paid the land revenue in respect of the same.

16. The learned Revenue Appellate Authority in its decision referred to the contentions advanced before it & thereafter observed that the evidence which was relevant and has a bearing on the crux of the problem had bee' discussed by the trial court in sufficient details and the reasons for not accepting the evidence produced by the appellants (petitioners) have been fully explained. It was observed that the trial court has taken pains in examining the entire oral as well as documentary evidence produced by the parties and being not fully satisfied with this evidence, it had examined two persons as court witnesses in order to find out the truth After making these observations the learned Revenue Appellate Authority considered the oral evidence of the parties to prove their respective cultivatory possession on the said field and observed that none of the witnesses produced by the appellants (petitioners) are neighbours of the disputed land, but on the contrary all the four neighbour nave been examined by the respondent and the ex jagirdars to prove possession. The learned Revenue Appellate Authority considered the documentary evidence produced by the plaintiffs. It was observed that the rent receipts produced by the plaintiffs have not been properly proved. It also considered this fact that it was only Mst. Parwati who could have given the land for cultivation to some one, as Dolidar, but the same was not proved so the plaintiffs case that the land was given to them for cultivation by the then jagirdars falls to the ground, as they hid no tight to give the suit land to the plaintiffs. It was necessary for the plaintiffs to prove that they were admitted as tenants on the land by the owner and that they were paying rent thereafter to the owner, according to the agreement before they can be declared 'khatedar tenants under Section 88 read with Section 15 of the Act. On the basis of this discussion, it concluded that the allegation on which the appellants (petitioners) claimed 'khatedar' rights on the suit land have not been substantiated and hence it sees no reason to take a different view than taken by the trial court. It was also observed that the first appellate court should be reluctant to interfere with the findings of fact arrived at by the trial court which had the occasion to watch the demeanour of the witnesses unless it is absolutely proved by the evidence on record that the finding, are perverse. Thus, it would appear that the Revenue Appellate Authority concurred with the findings of the trial court & the scope of the second appeal under Section 224 of the Act was very much limited, The findings of fact could only be assailed under Clause (iv) of sub Section 2) of Section 224 on the ground that the decision is contrary to the weight of evidence on record where the lower appellate court has varied or reversed any finding of the trial court on a question of fact. Thus, this clause could not be attracted before the Board of Revenue for challenging the decision of the Revenue Appellate Authority Presumably on that basis, the merits of the findings regarding 'khatedar' rights over the land and possession of the plaintiffs were not challenged before the Board of Revenue. As regards the argument based on the admission of Mst. Parwati in her application dated 3-9-1956, in may be stated the concurrent findings of the courts below could not be assailed on that ground, as on facts, the two subordinate courts concurrently found that the two third field was in possession of the defendant and the field was demarcated a. far back as the year 1957 and there was no evidence from the side of the plaintiff, that they were admitted as tenants by Mst. Parwati over whole of the field.

17. On behalf of the petitioners, an application has been submitted after the arguments in the writ petition were over that the Assistant Land Record Officer had no jurisdiction to decide about the two-third land being the 'khudkast' holding of the 'Dolidar Mst. Parwati. That jurisdiction vested exclusively in the Jagir Commissioner. Reliance in this connection was placed or Board of Revenue Jot Rajasthan, Ajmer and Ors. v. Rao Balden Singh and Ors. : [1968]2SCR661 .

18. We base considered this new point which hitherto was not raised either in the petition or before any of the revenue courts We may point out that the plaintiffs' suit in respect of two-third portion, has failed, as they have not been able to establish that they were admitted as tenants over the two third portion of the land in dispute and they were in possession of the same as such the aforesaid decision of the Supreme Court can be of no help to the petitioners and the findings of the revenue courts are not in any way vitiated.

19. Thus, in our opinion there has been no error of law apparent on the record, nor it can be said that any error of jurisdiction has been committed by the revenue courts, Essentially the judgments have turned on appraisal of oral and documentary evidence on record. In our opinion, no ground has been made out warranting an interference by this Court in the findings of fact arrived at by the revenue court* in the exercise of certiorari jurisdiction. The Assistant Collector after appraisal of the oral and documentary evidence, his reached to certain findings. Sufficiency or inadequacy of the evidence to sustain the findings, cannot, however, be challenged in these proceedings for issue of writ of certiorari, as held in Syed Yakoob's case (supra). In this view of the matter the judgments of the revenue courts do not call for interference and this writ petition is thus liable to be dismissed.

20. Accordingly the writ petition fails and is hereby dismissed. In the circumstances of the case, the parties are left to bear their own costs.


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