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1996 DIGILAW 593 (RAJ)

Hari Ram v. State of Rajasthan

1996-05-27

A.S.GODARA, B.R.ARORA

body1996
JUDGMENT 1. -The petitioners, by this writ petition, have challenged the validity of Section 232 of the Rajasthan Tenancy Act by which the word 'decree' was included within the jurisdiction of the reference. They have, also, challenged the order dated 16.7.1986 (Annexure-6) passed by the Board of Revenue, by which the Board of Revenue allowed the reference made by the District Collector, Jaisalmer and cancelled the decree and judgment dated 19.4.1982 passed by the Assistant Collector, Pokaran in Revenue Suit No. 141 of 1981. 2. During the course of arguments, learned counsel for the petitioners gave up his challenge to the provisions of Section 232 of the Rajasthan Tenancy Act and restricted his arguments only to the merit of the case challenging the judgment dated 16.7.1986 passed by the Board of Revenue. 3. Briefly stated, the facts of the case are that the petitioners filed a suit under sections 88, 91 & 92-A of the Rajasthan Tenancy Act (for short, 'the Act') in the Court of the Assistant Collector, Pokaran. The suit was filed for declaration of Khatedari rights. It was averred in the suit that the plaintiffs are in possession over the land measuring 294 Bighas 7 Biswas situated in Khasra No. 2634 of village Nokh prior to 15.10.1955 and they are still in possession over this land and, therefore, they may be declared as the Khatedari tenants of the land in question. The notices were issued to the Tehsildar, Pokaran, who filed written statement. Two issues were framed. The plaintiff, in support of his case examined himself as PW 1 and produced in evidence PW 2 Rameshwar Lai and PW 3 Ladu Ram and, also, placed on record the copies of two notices Ex. P/2 & Ex. P/3. The Tehsildar, Pokaran, in support of its case, examined DW 1 Pa ru Lal Patwari, who, in his statement, disclosed that the plaintiffs have been shown in possession over the land in question in Samvat Year 2038. 4. P/2 & Ex. P/3. The Tehsildar, Pokaran, in support of its case, examined DW 1 Pa ru Lal Patwari, who, in his statement, disclosed that the plaintiffs have been shown in possession over the land in question in Samvat Year 2038. 4. The Assistant Collector, Pokaran, by the decree and judgment dated 19.4.1982, after appreciating the evidence produced by the parties, decreed the plaintiff's suit so far as the land measuring 250.17 Bighas of Khasra No. 2634 of village Nokh is concerned and declared the plaintiffs as the Khatedars with respect to this land The Patwari was directed to make necessary entries in the Revenue Records and he was further directed to make recovery of the land revenue etc. Both the parties were directed to bear their own cots. 5. No appeal against this decree and judgment dated 19.4.1982 was filed and the Collector, Jaisalmer, by the order dated 26.3.1985 made a reference under section 232 of the Act to the Board of Revenue for cancelling the decree dated 19.4.1982 passed by the Assistant Collector, Pokaran. The Board of Revenue, by the judgment dated 16.7.1986 allowed the reference made by the Collector, Jaisalmer and ordered for cancellation of the decree dated 19.4.1982. It is against this judgment dated 16.7.1986 passed by the Board of Revenue that the petitioners have preferred this writ petition. 6. We have heard the learned counsel for the parties and perused the judgment passed by the learned Member of the Board of Revenue. 7. The learned Member of the Board of Revenue cancelled the decree only on the ground that the suit was filed by the plaintiffs after completion of ten years of the Settlement to Operations in the village and no sufficient cause has been shown for this delay. The Board of Revenue was, also, of the view that no solid proof to show the possession of the plaintiffs has been placed on record and merely on the basis of the oral evidence, the suit should not have been decreed. The reasons given by the learned Members of the Board of Revenue for cancellation of the decree passed in the year 1982 cannot be said to be sufficient which could warrant cancellation of the decree. The suit was contested by the Tehsildar. The Patwari was examined in defence and the decree was passed on the basis of the material available on record. The suit was contested by the Tehsildar. The Patwari was examined in defence and the decree was passed on the basis of the material available on record. Even the Patwari, who appeared as DW 1 in the case, admitted the possession of the plaintiffs over the land in question in Samvat Year 2038. The learned Member of the Board of Revenue has not stated what was the material available on record which could show that the plaintiffs were not in possession over the land in question. The suit can be decreed on the basis of the ocular evidence. Of Course, if the documentary evidence is available on record then it will give an additional strength to the case but if that has not been produced then it cannot be said that the ocular testimony of the witnesses cannot be relied-upon. If the revenue record was otherwise showing the possession of some other persons over the land in question and if that evidence could have been taken note of by the Board of Revenue for cancellation of the decree then that might have been a good ground for cancellation of the decree but the learned Members of the Board of Revenue have not taken into consideration any evidence - documentary or otherwise - showing that the possession over the land in question was not with the plaintiffs. The Board of Revenue cancelled the decree merely on the ground that the suit was filed after ten years of the completion of the Settlement Operation in the village and the suit was decreed on the basis of the ocular testimony only. Both the reasons given by the Board of Revenue for cancelling and setting-aside the decree are not warranting cancellation of the decree. In this view of the matter, we are of the opinion that the judgment dated 16.7.1986 passed by the Board of Revenue deserves to the quashed and set-aside. 8. In the result, the writ petition filed by the petitioners is allowed and the judgment dated 16.7.1986 (Annexure- 6) passed by the Board of Revenue is quashed and set-aside and the decree and judgment dated 19.4.1982 passed by the Assistant-Collector, Pokaran (District Jaisalmer) is restored.Writ allowed. *******