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Gopi Vs. Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Judge
Reported in2009(2)WLN479
AppellantGopi
RespondentBoard of Revenue and ors.
DispositionPetition allowed
Excerpt:
.....education ousting such candidate from consideration in merit list is illegal and without jurisdiction. - dated 09.07.1990. 2. the factual matrix of the case is that tehsildar roopwas initiated eviction proceedings against the petitioner as well as respondent no. 23.07.1998. status-quo order passed in favour of the petitioner was also unsuccessfully challenged by respondent no. but at the same time, it is clearly evident that the suit filed by respondent no. 2, clearly set up a case that his father was recorded as khudkasht khatedar of land bearing khasra no. 3) are quashed and set-aside and the matter is remanded back to the sub divisional officer/assistant collector bayana, district bharatpur for deciding it afresh by giving opportunity to both the parties to adduce evidence and..........as khatedar of the land and his father as 'shikmi khatedar'. during the pendency of the aforesaid suit filed by the petitioner, prabhati, father of respondent no. 2, filed another suit, being suit no. 85/1978 under sections 88, 89 and 188 of the act of 1955 against the petitioner for declaration and for perpetual injunction in regard to the same land which the petitioner contested. the said suit was dismissed in default vide order dt. 31.01.1979. but thereafter respondent no. 2 filed another suit being suit no. 28/1979 under section 183-b of the act of 1955 for ejection of petitioner from the land in dispute with the plea that he has been forcibly dispossessed from the land by the petitioner on 03.11.1978. petitioner contested that suit also. trial court decreed the suit filed by father.....
Judgment:

Mohammad Rafiq, J.

1. This writ petition has been filed by the petitioner against the order passed by the Board of Revenue dt. 20.06.2000 by which judgment of the learned Revenue Appellate Authority dt. 23.04.1992 was set-aside and that of Sub Divisional Magistrate Bayana dt. 09.07.1990 was restored. Petitioner has also challenged the judgment of S.D.M. Dated 09.07.1990.

2. The factual matrix of the case is that Tehsildar Roopwas initiated eviction proceedings against the petitioner as well as respondent No. 2 under Section 175 of the Rajasthan Tenancy Act, 1955 (for short, 'Act of 1955') in the Court of learned Additional City Magistrate, Bayana in the year 1976. Learned ACM rejected the application vide order dt. 05.02.1977. When petitioner came to know about the same on enquiry he learnt that in the revenue record, he was shown as 'Shikmi Kashtkar' in respect of land bearing Khasra No. 34 measuring 4 bighas 4 biswas situated at Village Mamtoli, Police Station Roopwas, Tehsil and District Bharatpur whereas petitioner and his predecessor i.e. his father (Ghoori) was khatedar of the said land and therefore petitioner filed a suit for declaration of his right and perpetual injunction against respondent No. 2 on the premise that the land in dispute was in possession of petitioner's father Ghoori and that he was cultivating the same as a khatedar ever since 2017 and after his death in 2023, land was mutated in favour of the petitioner vide Mutation dt. 08.10.1971 and since then, petitioner is cultivating the same and paying rent regularly. Premise on which the suit was filed was that said land was on lease for one year with the father of respondent No. 2 somewhere in Samwat 2016 and after completion of lease period, he although returned possession of the land to the father of the petitioner but in connivance with the officials of the revenue department, got himself entered as khatedar of the land and his father as 'Shikmi Khatedar'. During the pendency of the aforesaid suit filed by the petitioner, Prabhati, father of respondent No. 2, filed another suit, being Suit No. 85/1978 under Sections 88, 89 and 188 of the Act of 1955 against the petitioner for declaration and for perpetual injunction in regard to the same land which the petitioner contested. The said suit was dismissed in default vide order dt. 31.01.1979. But thereafter respondent No. 2 filed another suit being Suit No. 28/1979 under Section 183-B of the Act of 1955 for ejection of petitioner from the land in dispute with the plea that he has been forcibly dispossessed from the land by the petitioner on 03.11.1978. Petitioner contested that suit also. Trial Court decreed the suit filed by father of respondent No. 2 under Section 183-B in his favour on 14.09.1982 with direction that petitioner be ejected from the disputed land and be required to pay 15 times the amount of rent to respondent No. 2 from the date of his ejection from the disputed land by the petitioner on 03.11.1978. Petitioner challenged the judgment and decree passed by the trial Court in favour of respondent No. 2 under Section 183-B on 14.09.1992 and filed appeal there against on the premise that petitioner could not be evicted in such a summary manner particularly when suit for ejection filed by him in respect of the same land was pending and there was an order dt. 18.07.1978 directing the parties to maintain status-quo. Revenue Appellate Authority allowed appeal of the petitioner and reversed the aforesaid judgment passed by the trial Court in faovur of respondent No. 2 vide judgment and decree dt. 14.09.1982 declaring that earlier petitioner's father and subsequently petitioner himself were in possession of the land in dispute and in view of pendency of the suit, no eviction order could be passed. Respondent No. 2 filed appeal against the aforesaid judgment of the Revenue Appellate Authority before the Board of Revenue Rajasthan, Ajmer which was dismissed vide order dt. 25.03.1994. He therefore filed review petition which was also dismissed vide order dt. 23.07.1998. Status-quo order passed in favour of the petitioner was also unsuccessfully challenged by respondent No. 2 before the Revenue Appellate Authority and the Board of Revenue. However, finally suit filed by the petitioner was dismissed by the first Court vide judgment dt. 09.07.1990 against which, petitioner filed appeal before the Revenue Appellate Authority. Appeal of the petitioner was allowed by the Revenue Appellate Authority vide judgment dt. 23.04.1992. However, Board of Revenue in the appeal filed by respondent No. 2 reversed that judgment of the Sub Divisional Officer vide its order dt. 20.06.2000. Hence, this writ petition.

3. Shri M.S. Yadav, learned Counsel for the petitioner has argued that Sub Divisional Officer and Board of Revenue both proceeded with the matter as if the land was transferred by the father of respondent No. 2 to petitioner's father in violation of Section 42 of the Act of 1955 whereas it was not at all case of transfer of land. Merely because respondent No. 2 happens to be member of Scheduled Caste, Section 42 of the Act is not attracted. Land in dispute was earlier recorded in the name of petitioner's father as khudkasht and this fact the petitioner in the suit filed before the first Court has mentioned that his father was recorded as khudkasht tenant from Samwat 2002 but subsequently petitioner in the appeal filed before the Revenue Appellate Authority against the judgment passed by the first Court dt. 14.09.1992 in the suit filed by respondent No. 2 under Section 183-B, categorically pleaded that petitioner's father was recorded as khudkasht khatedar on the land in dispute but at that time he could not substantiate this fact by placing the document in this regard on record. Learned Counsel for the petitioner has relied on the documents Annexure-14, Annexure-15 and Annexure-16 i.e. certified copies of 'Khevat Khatoni' for Samwat 2007, Samwat 2011 and Samwat 2018, respectively filed with the rejoinder to show that the land in dispute i.e. Khasra No. 34 (supra) was recorded as khudkasht in the name of his father. It is contended that petitioner despite exercise of due diligence could not procure and produce these documents earlier and thereafter in his appeal filed before the revenue appellate authority against the judgment under Section 183-B, but petitioner pleaded this fact as early as 1982. This aspect of the matter has not at all been considered by any of the Courts below. Revenue appellate authority was not justified in reversing the judgment passed by the Sub Divisional Officer. The Board of Revenue has erred in law in interfering with the order passed by the revenue appellate authority without any cogent and valid reason. Learned Counsel therefore submitted that order passed by the Board of Revenue and that of the Sub Divisional Officer both be set-aside and the matter be remanded back to the Sub Divisional Officer for deciding it afresh keeping in view the revenue records of Samwat 2007 onwards showing father of the petitioner was recorded as khudkasht khatedar in respect of the land bearing Khasra No. 34.

4. Shri Tek Chand Rawal, learned Counsel for respondent No. 2 has opposed the writ petition and argued that bar contained in Section 42 of the Act of 1955 for transfer of the land belonging to Scheduled Caste to a non member of Scheduled Caste would not be applicable to a matter of transaction of land in respect of decree passed by the Court. Suit filed by the petitioner was not based on the premise that his father was ever recorded as khudkasht khatedar. It was filed only on the premise that father of the petitioner was recorded as 'shikmi khatedar' in the revenue records from Samwat 2017 to 2023 and therefore land was mutated in favour of petitioner on 08.10.1971. An altogether a new case could not be allowed to be set up now before this Court. It is contended that revenue appellate authority seriously erred in holding that after dismissal of th suit filed by respondent No. 2 under Section 183-B upto revenue board, petitioner has remained in possession for more than twelve years, he was acquired title by reason of adverse possession. It is contended that such a declaration in respect of land of a Scheduled Caste cannot be made in a revenue suit even on the basis of adverse possession. Power contained in Sections 42 and 46 of the Act of 1955 would be equally applicable to the land where adverse possession over the land of members of Scheduled Castes is claimed by a nonmember. It is contended that mere dismissal of the suit filed by respondent No. 2 for eviction of the petitioner in a summary proceeding would not determine the issues against the petitioner so far as title of the land is concerned. Respondent No. 2 and his predecessor-in-title i.e. his father, were correctly shown as 'khatedar tenant' of the land in dispute and petitioner's father was rightly shown as 'shikmi khatedar'. There is no such error in the orders passed by the Sub Divisional Officer and that of Board of Revenue which can be said to be an error apparent on the face of record so as to warrant interference by this Court. The writ petition therefore be dismissed.

5. I have given my anxious considertion to the rival submissions of the parties and perused the material on record.

6. Although, it is true that bar on transfer or alienation of properties in respect of member of Scheduled Caste would be applicable even in the decree passed by the Court and that no such declaration as is being claimed by the petitioner can be issued even on the strength of adverse possession by any revenue Court in the face of such a bar contained in Sections 42 and 46 of the Act of 1955. To that extent, findings recorded by the revenue appellate authority are justified. But at the same time, it is clearly evident that the suit filed by respondent No. 2 under Section 183-B was allowed when the petitioner filed appeal against that judgment and decree, wherein, he categorically set up a case that land was recorded as khudkasht in the name of his father. The revenue appellate authority reversed judgment passed by the Sub Divisional Officer and the Board of Revenue concurred therewith. Board of Revenue was persuaded in concurring with the view taken by the Revenue Appellate Authority on the ground that petitioner's father was recorded as 'shikmi khatedar' in Samwat 2016 how did respondent No. 2 remain silent for a long period of 18 years and why did he file suit for his eviction belatedly. Board of Revenue did not however accept the contention of respondent No. 2 that he was dispossessed on 03.11.1978 as respondent No. 2 could not adduce any convincing evidence on that aspect. Petitioner in appeal before the revenue appellate authority while challenging the order of the trial Court dt. 14.09.1992 allowoing the suit filed by respondent No. 2, clearly set up a case that his father was recorded as khudkasht khatedar of land bearing Khasra No. 34. That time, he could not produce any documents which he has now filed before this Court as Annexure-14 to Annexure-16 along with rejoinder, therefore he could not at the relevant point of time substantiate his case which he has now sought to substantiate before this Court. Copy of rejoinder was supplied to learned Counsel for respondent No. 2 as far as back as 04.07.2002. Correctness of the certified copies of these documents enclosed with the rejoinder which have been attested by the Assistant Sadar Kanoongo (Records) Bharatpur has not been disputed. Respondent No. 2 may be justified in complaining that petitoner ought to have produced such evidence before the Sub Divisional Officer in the first instance and not before this Court now after several years of filing of all the revenue suit. But at the same time, this Court cannot ignore the fact that petitioner even before the Revenue Appellate Authroity when he filed appeal against the judgment and decree passed in the suit filed by respondent No. 2 under Section 183-B of the Act of 1955 had already pleaded and set up the aforesaid case. It therefore cannot be said to be an altogether a new fact which the petitioner is asserting now. However, it has certainly caused inconvenience to respondent No. 2 and in order to mitigate the inconvenience faced by him in engaging himself in litigation against petitioner, he could be suitably compensated by award of reasonable amount of cost. Since the delay is so enormous, the amount of cost has to be also somewhat reasonably high.

7. In view of the totality of the circumstances, therefore, case of the petitioner cannot be thrown just because he has defaulted in not producing the revenue records in time particularly when this Court has found that his case worth examination.

8. In the result, this writ petition is allowed. Order of the Board of Revenue dt. 20.06.2000 (Ann. 13) and that of the Sub Divisional Officer dt. 09.07.1990 (Ann. 3) are quashed and set-aside and the matter is remanded back to the Sub Divisional Officer/Assistant Collector Bayana, District Bharatpur for deciding it afresh by giving opportunity to both the parties to adduce evidence and keeping in view the entries made in Khevat Khatonis for Samwat 2007, Samwat 2011 and Samwat 2018, respectively and additional evidence, if any, they like to produce before him, in support of their respective cases. Suit be proceeded with further only if petitioner pays to respondent No. 2 a sum of Rs. 5,000/- as costs for the inconvenience due to not timely producing the revenue documents referred to above.


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