Research › Browse › Judgment

Rajasthan High Court · body

1996 DIGILAW 1108 (RAJ)

Alladin v. B. O. R.

1996-09-26

B.J.SHETHNA

body1996
Honble SHETHNA, J. – The petitioners, who were found to be the tres-passers by the Board of Revenue, have challenged in this petition the judgment and decree passed by the Revenue Appellate Authority Jodhpur dated 7.8.1986 Annex.4 and the judgment of Board of Revenue dated14.7.1986 delivered in appeal at Annex. 5 (2) Learned counsel Shri Joshi vehemently raised only one point in this petition. He submitted that the Civil suit No. 12/74 filed by the respondents No. 4. to 6 dismissed, by the Assistant Collector but the revenue appellate authority allowed the appeal and decreed the suit in their favour. He submitted that in the suit no specific issues were raised nor specific relief was prayed for, therefore, the appellate authority should not have allowed the appeal and it ought to have remanded the matter to the Assistant Collector with directions to raise specific issues and to decide the suit after giving opportunity to the parties to lead evidence. He submitted that the appeal No. 261/80 filed by the present petitioners before the Board of Revenue was also wrongly dismissed. He challenged the order of Board of Revenue also on the very ground. (3) To appreciate the above submissions made by Mr. Joshi, few facts are required to be stated. The present petitioners are the L.Rs. of deceased Nijju Khan who filed a suit before the Assistant Collector for declaration and to declare him the khatedar tenant of the land. Respondent Nos. 4 to 6 filed a suit No. 92/74 before the Assistant Collector praying that Nijju Khan be restrained from disturbing their possession on the land.The Assistant Collector dismissed both the suits, against which appeal No. 261/80 was filed by the present respondents No. 4 to 6 and the appeal No. 262/ 80 was filed by the present petitioners. Respondent Nos. 4 to 6 filed a suit No. 92/74 before the Assistant Collector praying that Nijju Khan be restrained from disturbing their possession on the land.The Assistant Collector dismissed both the suits, against which appeal No. 261/80 was filed by the present respondents No. 4 to 6 and the appeal No. 262/ 80 was filed by the present petitioners. Both the appeals were disposed of by a common order dated 7.6.1986 by the revenue appellate authority who allowed the appeal No. 261/80 filed by the respondents No. 4 to 6 and dismissed the appeal No. 262/80, against which two appeals were filed before the Board of Revenue and both the appeals were dismissed on 14.7.1986 by the Board of Revenue.Writ Petition No. 1942/86 was filed by the present petitioners before this Court which is arising out of civil suit No. 50/74 filed by Nijju Khan, the same came to be dismissed by the Division Bench of this court on 13.12.1988. (4) This Writ petition is filed from the proceedings arising out of civil suit No.52/74 filed by the respondent. In suit No. 50/74 filed by the deceased Nijju Khan, in which he claimed to declare himself to be khatedar tenant of the land which was not accepted by any of the authorities below. While dismissing the writ peti- tion No. 1942/86 this Court observed that: ``No document evidencing the fact that the petitioner was recorded in the annual registers as tenant of khudkast or as sub- tenant on 31.12.1969, as envisaged by Sec. 19(1AA) of the Rajasthan Tenancy Act. (5) Mr. Sharma, appearing for the respondent Nos. 4 to 6 has, therefore, submitted that the claim of the petitioners that they were sub-tenant khatedar cannot be accepted by this Court. (6) Section 209 of the Rajasthan Tenancy Act reads as under : `` 209 Granting any relief to which plaintiff is entitled, in any suit or proceedings, the court may, on the application of the plaintiff and after framing the necessary issues, grant any relief which the Court is competent to grant and to which it may find the plaintiff entitled, not with standing that such relief may not have been asked for in the plaint or application. Provided that, after framing such issues, the Court shall, on the request of either party, grant reasonable time for the production of evidence. (7) The submission of Mr. Provided that, after framing such issues, the Court shall, on the request of either party, grant reasonable time for the production of evidence. (7) The submission of Mr. Joshi is that no specific issues were raised in the suit No. 52.74 filed by the respondent Nos. 4 to 6 and, therefore, the Revenue Appellate Authority as well as the Board of Revenue committed grave error in deciding the appeal against the petitioners. He submitted that the petitioners had no opportunity to lead evidence on the point regarding possession. In support of his submission,he tried to rely upon two decisions of Revenue Board, 1990 RRD page 365 (1) and 1994 RRD page 717(2) on the basis of the Supreme Court decision reported in 1988 SC 2181(3) and submitted that the impugned orders passed in appeal by the Revenue Appellate Authority and Board of Revenue be set aside. It is true that u/s 209 in any suit or proceeding, on an application of the plaintiff the Court has to frame necessary issues and grant any relief to which the plaintiff is entitled, which not may have been asked for in the suit or in application.The Court has to grant opportunity to lead evidence to the parties. In my opinion merely because the Court has not raised specific issues, therefore, only on that ground the orders passed in appeal by the Revenue Appellate Authority and by the Board of Revenue cannot be disturbed. It was not pointed out nor any request was made on behalf of the petitioners to raise specific issues in a suit filed against them and the opportunity was asked for producing the evidence. The deceased Nijju Khan had also filed a suit before the Assistant Collector and there he claimed khatedari rights, that controversy is settled by the Division Bench of this Court on 13.12.1988, by dis- missing their writ petition No. 1942/86. (8) That apart Sec. 19(1AA) of the Rajasthan Tenancy Act, 1955 clearly provides that every person who on 31.12.1969 entered in the annual registers will be entitled to the benefit. The year 1969 correspond 2026 and Nijju Khan did not produce any jama bandi of Samvat to Samvat 2026 to show that his name was entered in the annual register. (8) That apart Sec. 19(1AA) of the Rajasthan Tenancy Act, 1955 clearly provides that every person who on 31.12.1969 entered in the annual registers will be entitled to the benefit. The year 1969 correspond 2026 and Nijju Khan did not produce any jama bandi of Samvat to Samvat 2026 to show that his name was entered in the annual register. In view of this clear provision of law which has been rightly considered by the Revenue Appellate Authority as well as Board of Revenue it will be difficult for this Court to interfere with the impugned orders. Going through the reason assigned by the Revenue Appellate Authority as well as Board of Revenue it cannot be said that they have committed any error much less jurisdictional error or error of law which is required to be corrected by this Court in this petition which is labelled u/Art 226 of the Constitution of India, but strictly speaking it is a petition u/Art. 227of the Constitution, scope of which is very narrow and limited. In view of the above discussion, I do not find any substance or merit in the above submission of Mr. Joshi. Hence, this petition fails and is hereby dismissed with the costs.