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Rajasthan High Court · body

1969 DIGILAW 175 (RAJ)

Kalla v. Abdulla

1969-09-30

B.P.SOOD

body1969
This is a revision petition under sec. 230 of the Rajasthan Tenancy Act preferred against the order of the learned Revenue AppellateAuthority, Bikaner dated 10-7-63, whereby he set aside the S. D. O. Barmers order dated 29-463 and remanded the case to the trial court for framing issues and disposal of the case after an enquiry. The facts of this case are these: — A suit for arrears of rent and ejectment was filed by the opposite party Kalla and decreed by the trial court. The case ultimately came to the Board of Revenue, who upheld the decree of the trial court. An application for review was also rejected by the Board on 19.11.62. Thereafter, an application was filed by the plaintiff for the execution of the decree. The judgment debtors submitted an objection petition before the S.D.O., Barmer who rejected the same by his order dated 29 4 63, whereupon the judgment debtors preferred an appeal before the learned Revenue Appellate Authority Bikaner who accepted the appeal vide his order dated 10.7.63 and remanded the case to the trial court for framing issues and for a fresh decision. The impugned order of the learned R.A.A. has been assailed on the ground that he has reopened some of those issues which had been finally adjudicated upon by the Board of Revenue. The first issue which was raised by the judgment debtors in their objection petition was that the Tehsildar had passed the decree without jurisdiction and the decree was, therefore, a nullity. It has been contended that this issue had been finally settled by the Board of Revenue in their order dated 13.3.62. The Board has also rejected a review application through their order dated 19.11.62 and it was held that the Tehsildar was competent to decide the case and the decree was rightly issued by him in the exercise of jurisdiction vesting in him. The learned R.A.A. had therefore, committed illegality in reopening this question and in remanding the case for an enquiry on this issue. The impugned order has also been challenged on the ground that it was perverse and against the facts on record. The learned R.A.A. had therefore, committed illegality in reopening this question and in remanding the case for an enquiry on this issue. The impugned order has also been challenged on the ground that it was perverse and against the facts on record. The learned R.A.A. had come to the conclusion that the judgment debtors had acquired khatadari rights over the suit land through the operation of the Rajasthan Tenancy Act and that trial court had failed to consider this aspect and had not applied its mind to this question. It was contended that this plea had never been taken by the defendants through out the chequered history of this case in any court. It was urged that the jama-bandi record showed that the plaintiff was a khatedar of the land and not a jagirdar and the Land Reforms & Resumption of Jagirs Act did not have any effect on his khatedari rights and the conclusion drawn by the learned R. A. A. that the trial court should have considered this aspect was entirely contrary to the facts on record. Lastly, it was argued that the learned R.A.A. had committed a serious error in the exercise of his jurisdiction by holding that the question of limitation had not been fully considered by the learned S.D.O, Barmer. It was urged that this point was not pressed by the opposite party during the arguments on the objection petition before the S.D.O. Barmer and the issue was agitated before the learned R.A.A. merely in order to delay the execution of the decree. It was strongly contended on behalf of the petitioner that there was no occasion for agitating these points before the learned R.A.A. who was merely hearing an appeal against the rejection of the objection petition filed by the judgment debtors during proceedings of the execution of the decree. Reliance was paced on 1959 AIR Rajasthan page 131, and it was argued that the learned R.A.A. had set up a new case altogether and that the consequence of his order will be an indefinite prolongation of the litigation. The learned counsel for the opposite party placed reliance on 1982 Supreme Court page 199 para 4, and submitted that a court executing the decree can go into the question of jurisdiction and where there is patent lack of jurisdiction the court can enquire into the matter. The learned counsel for the opposite party placed reliance on 1982 Supreme Court page 199 para 4, and submitted that a court executing the decree can go into the question of jurisdiction and where there is patent lack of jurisdiction the court can enquire into the matter. It was further urged that the learned S.D.O. had failed to enquire into the question of limitation which was raised in the objection petition. The learned counsel supported the impugned order and urged that the order of remand was entirely justified. It was argued that the learned R.A.A. had merely sent the case for fresh enquiry for some of the important issues raised during the objection petition which the learned S.D.O. had failed to look into. I have given my careful consideration to the arguments made before me by the parties and have also examined the record of this case. The arguments that during the execution proceedings, the executing court can enquire into the question of jurisdiction of the court issuing the decree is without any force, so far as this case is concerned. The question of jurisdiction was debated and discussed thread bare during the arguments before the Board of Revenue. It was earlier raised before the learned Collector, Barmer also, the Board of Revenue held that the Tehsildar had rightly exercised his jurisdiction while passing the decree in the case. This order of the Board set the seal of finality on this question. It was, therefore, very impudent on the part of the judgment debtors to reagitate this question during the execution proceedings. There was no occasion for it in view of the provisions of S. 11 CPC. The learned R.A.A. should have rejected this plea straight-away He has passed a perverse order in ordering reopening of this issue and has committed a gross illegality in the exercise of his jurisdiction. The question of limitation was, no doubt, raised in the memorandum of grounds of the objection petition, but this seems to have been waived off during arguments. Even otherwise, the learned R.A.A. should have examined this question and have ordered fresh enquiry only if there was a prima facie case on this ground. The question of limitation was, no doubt, raised in the memorandum of grounds of the objection petition, but this seems to have been waived off during arguments. Even otherwise, the learned R.A.A. should have examined this question and have ordered fresh enquiry only if there was a prima facie case on this ground. The facts of this case are that the Board disposed of the case by their order dated 13-3-62 and the application for execution of the decree was made before the trial court on 6-7-62 and was well within the prescribed time. The objection was, therefore entirely frivolous and the learned R.A.A. has committed an error in law in remanding the case for fresh enquiry on this issue. The learned counsel appearing for the opposite party failed to make out the case that the application for execution of the decree was time-barred. There is no force in this contention. Looking to the facts of this case, the judgment debtors appear to be intent upon delaying the execution of the decree and I must say that they have succeeded admirably in the achievement of their goal. They have been pursuing a vexatious litigation for defeating the ends of justice and I cannot condemn it too strongly. The result is that this revision petition is accepted and the impugned order of the learned R.A.A. is set aside and the case is remanded to the S. D. O. Barmer for hastening the execution of the decree in favour of the petitioner.