Asulal v. Board of Revenue — 1997 DIGILAW 883 (RAJ)

Honble SHETHNA, J.–Heard the learned counsel for the parties. (2). The petitioner No.3 Shri Mohd. Ali S/o Shri Gafur filed a suit under Sec. 88 and 188 of the Rajasthan Tenancy Act in 1970 for the declaration of Khatedari rights for 209 Bighas land of Khasra No.216 situated in Village Gangola on the ground that though the same was cultivated by him for a long time but the Khate-dari rights of the land were not recorded in his name. Suit of 1970 came to be decreed by the Assistant Collector, Barmer on 28.4.70 (Annex.1) for 100 Bighas instead of 209 Bighas and he was declared as Khatedar of the land and the defendants were restrained from interfering with the cultivatory possession of Mohd. Ali. Aggrieved by the part of the judgment and decree passed by the AssistantCollector of Barmer holding as a Khatedar of 100 Bighas land instead of 209 Bighas, Mohd. Ali preferred an appeal which was dismissed by the R.A.A. on 31.8.79 (Annex.2). Second appeal preferred by Mohd. Ali before the Board of Revenue was dismissed on 21.4.86 (Annex.3). Thereafter the matter was not taken up further by Mohd. Ali. According to the petitioners No.1 and 2, Shri Asu Lal s/oShri Rikhab Das and Bhoor Chand S/o Rikhab Das, Mohd. Ali sold 50 Bighas of land to them somewhere in July, 1981 (Annex.7) and the mutation was also effected in their favour in 1982 (Annex.10) and they were conferred Khatedari rights also. On 16.1.87, Tehsildar, Barmer moved an application to the Collector stating that Mohd. Ali was wrongly declared as a Khatedar of 100 Bighas land though he was not in cultivatory possession when the Rajasthan Tenancy Act came into force. On 17.1.90 (Annex.5), the Collector, Barmer made the reference under Sec. 232 of the Rajasthan Tenancy Act to the Board of Revenue for quashing the decreedated 28.4.71 passed by the Assistant Collector. The Board of Revenue, by an order dated 2.4.92 (Annex.6) accepted the reference and set aside the decree dated 28.4.71 passed by the Assistant Collector, Barmer. This order Annex.6 is challenged in this petition by the petitioners. (3). Learned counsel Shri Chopra for the petitioners vehemently submittedthat the Board of Revenue committed an error in setting aside the decree passed by the Assistant Collector, way back in 1971. This order Annex.6 is challenged in this petition by the petitioners. (3). Learned counsel Shri Chopra for the petitioners vehemently submittedthat the Board of Revenue committed an error in setting aside the decree passed by the Assistant Collector, way back in 1971. He submitted that there was enough oral evidence on record before the Assistant Collector in passing the decree in favour of Mohd. Ali. He submitted that the decree passed by the Assistant Collector became final and should not have been taken up in reference after lapse of about16 years. In support of his submission Shri Chopra relied upon judgment of this court in case of Anandi Lal vs. State of Rajasthan (1). He also relied upon my own judgment dated 7.7.97 in SB Civil Writ Petition No. 2005/89 and submitted that on the ground of gross delay and latches of 16 years in making reference the judgment order at Annex. 6 be quashed. (4). As against that, learned Dy. Government Advocate Shri B.S. Bhati relied upon Division Bench judgment of this Court in State of Rajasthan vs. Board of Revenue (2) and submitted that Anandi Lals case has no application on the facts of this case and merely there was a delay of 16 years in making reference, this Court should not quash the impugned order (Annex.6). (5). No doubt it is true that from the date of decree, there is a delay of 16 years but if we closely peruse the matter then it becomes clear that Mohd. Ali petitioner No.3 filed a suit before the Assistant Collector for 209 Bighas of land but the decree was passed for 100 Bighas of land only on 28.4.71. It was Mohd. Ali, who filed first appeal for remaining 109 Bighas of land before the Revenue AppellateAuthority, which came to be dismissed in 1979 i.e. 31.8.79. Mohd. Ali carried the matter further by way of second appeal before the Board of Revenue which came to be dismissed by the Division Bench of the Board of Revenue only on 21.4.86. Perhaps it is because of the pending litigation before the R.A.A. and the Board of Revenue, the Tehsildar must not have thought it fit to make an application beforethe Collector till 1987. Immediately on the conclusion of the proceedings pending before the Board of Revenue in 1986, the Tehsildar moved the Collector in 1987. Perhaps it is because of the pending litigation before the R.A.A. and the Board of Revenue, the Tehsildar must not have thought it fit to make an application beforethe Collector till 1987. Immediately on the conclusion of the proceedings pending before the Board of Revenue in 1986, the Tehsildar moved the Collector in 1987. Though at first look it may appear to be a delay of 16 years but practically in this case there is no delay. Therefore, the judgment of the Division Bench in Anandi Lals case cited by Mr. Chopra has no application to the facts of this case and thesubsequent judgment of the Division Bench relied upon by Shri Bhati squarely applies to the facts of this case. (6). In writ petition No. 2005/89, I have specifically mentioned that Anandi Lals case applies on the facts of that case. The judgments will apply on the facts of each case. Therefore, first submission regarding delay raised by Shri Chopra is rejected. (7). Mr. Chopras other contention was that there was sufficient oral evidence on the record on which the Assistant Collector passed the decree. Therefore, it was not open to the Board of Revenue to set aside that decree. The judgment of the Division Bench in Hari Rams case cited by Shri Chopra clearly shows that in that case there was not only an oral evidence in support of the petitioner but there was also Revenue record in support of the petitioner. Therefore, in my opinion, Hari Rams case has no application to the facts of this case. (8). While setting aside the decree passed by the Assistant Collector, the Board of Revenue has considered the facts that (i) Mohd. Ali failed to prove his possession; (ii) his name was not mentioned in the Girdavari; (iii) when law came into force admittedly Mohd. Ali was not found in possession; (iv) Mohd. Ali was not in cultivatory possession of the land and; (v) that Mohd. Ali encroached upon the land. All these findings of facts cannot be gone into by this Court in the petition filed under Article 227 of the Constitution of India, the scope of whichis very narrow and limited. As held by the Supreme Court in Mohd. Yunus vs. Mohd. Mustkim (3) even an error committed on law cannot be corrected by this Court under Article 227 of the Constitution of India. (9). As held by the Supreme Court in Mohd. Yunus vs. Mohd. Mustkim (3) even an error committed on law cannot be corrected by this Court under Article 227 of the Constitution of India. (9). Going through the judgment of the Board of Revenue, it is clear that no error much less jurisdictional or error on law or facts committed by the Boardof Revenue which calls for interference by this Court in exercise of powers under Article 226/227 of the Constitution of India. (10). One more submission made by learned counsel Shri Chopra was that no notice was given to the petitioners before making the reference. From the judgment of the Board of Revenue, it is clear that Mohd. Ali was fully heard throughhis counsel. Therefore, this submission raised by Shri Chopra looses all its significance. Then it was submitted by Mr. Chopra that petitioners No.1 and 2 were not given notice by the Board of Revenue before setting aside the judgment and decree. It may be stated here that the reference was made against the decree which was passed only in favour of Mohd. Ali. Petitioners No.1 and 2 were not inpicture. They came into possession of 50 Bighas of land from Mohd. Ali only in 1982. If at all they were aggrieved, they should have applied before the Board of Revenue for becoming party in the reference proceedings. They simply waited and watched the matter. It is only after the Board of Revenue set aside the decree, they become co-petitioners along with Mohd. Ali and tried to challenge the impu-gned order Annex.6 by way of this petition. In my opinion, such joint petition is not maintainable at all. The petitioners No.1 and 2 cannot challenge the impugned order at Annex.6 before this Court by way of this writ petition under Article 227 of the Constitution of India because they were never party before the Board of Revenue. On this ground alone this petition is required to be dismissed. (11). At this stage, going through the record of the case, it has come to my notice that main petitioner Mohd. Ali, petitioner No.3 expired long back on 31.12.85 leaving behind his legal heirs for which an application was made on 11.3.86 to bring them on record as L.Rs. of deceased Mohd. (11). At this stage, going through the record of the case, it has come to my notice that main petitioner Mohd. Ali, petitioner No.3 expired long back on 31.12.85 leaving behind his legal heirs for which an application was made on 11.3.86 to bring them on record as L.Rs. of deceased Mohd. Ali but it appears that the said application was not prosecuted and no order was passed in that application so far.When L.Rs. of petitioner No.3 Mohd. Ali have not come on record, the petition qua petitioner No.3, Mohd. Ali, automatically, stands dismissed as abated. In my opinion, the impugned order Annex.6 passed by the Board of Revenue could have been challenged only by Mohd. Ali and no one else. On the death of Mohd. Ali and in absence of his L.Rs. on record, this petition abated and in my opinion the petitionersNo. 1 and 2 have no right whatsoever to challenge the impugned order at Annex.6. (12). Before parting with the judgment, I must state that one more argument was advanced by learned counsel Shri Chopra that the petitioners were in continuous cultivatory possession of the land since more than 40 years and in support of his submission, Mr. Chopra has tried to relied upon in Supreme Courtjudgment in case of Brij Lal vs. Board of Revenue etc. (4). For the reasons stated above, it is clear that under the interim orders of the court, Mohd. Ali continued to remain in possession of the land. In fact, he had encroached upon the Government land. The petitioners No. 2 and 3 have purchased 50 bighas of land from Mohd. Ali, only in 1982, therefore, their case stands on a different footing. In my humble opinion, the Supreme Courts judgment in Brij Lals case (supra) has no application, hence, this contention is also rejected. (13). For the reasons stated above, this petition fails and is dismissed with no costs.