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1999 DIGILAW 1014 (RAJ)

Heeralal v. State

1999-08-10

B.J.SHETHNA

body1999
Honble SHETHNA, J.–By the consent and at the request of learned counsel for the parties, the petition is finally heard today. (2). The petitioners have challenged in this petition the impugned judgment and order dated 17.3.98(Annex. 3)and the decree at Annex-3A passed by the Board of Revenue in second appeal filed by the private contesting respondent No.5. (3). The suit filed by plaintiff-respondent No.5 was decreed by the S.D.O. Against that order, the petitioner preferred first appeal before the Revenue Appellate Authority, Chittorgarh which was allowed and the judgment and order passed by the S.D.O. decreeing the suit in favour of the plaintiff was set aside. The said order was carried in second appeal by the plaintiff-respondent No.5 before the Board of Revenue which was allowed on 17.3.98 (Annex -3) by the Board of Revenue. Hence, this petition. (4). Learned counsel Shri Sharma, for the petitioners, vehemently submitted that when the first appellate authority, after considering the entire evidence and material on record came to the conclusion that the petitioners possession was an old possession of more than 30 to 35 years, and on the spot inspection also, it was found that their possession was an old one, then it was not open to the Board of Revenue to disturb that finding of fact in second appeal. He submitted that the Revenue Appellate Authority gave solid and cogent reasons in its order while allowing the appeal, therefore, the same finding of fact ought not to have been disturbed by the Board of Revenue in second appeal unless and until it comes to the conclusion that the reasoning assigned by the Revenue Appellate Authority in the first appeal was wholly unsustainable. (5). As against that, learned counsel Shri B.L. Sharma, appearing for Mr. B.N. Kalla for respondent No.5, and learned counsel Shri Jain submitted that when the Board of Revenue has exercised its jurisdiction in Second Appeal in favour of the plaintiff and set aside the order passed by the Revenue Appellate Authority in the first appeal, then this Court should not interfere with such order in its jurisdiction under Article 226 or 227 of the Constitution. (6). The first appellate authority viz., Revenue Appellate Authority gave clear-cut finding in favour of the defendants (present petitioners) that the plaintiff miserably failed to prove that he was forcibly dispossessed before two years of filing of the suit. (6). The first appellate authority viz., Revenue Appellate Authority gave clear-cut finding in favour of the defendants (present petitioners) that the plaintiff miserably failed to prove that he was forcibly dispossessed before two years of filing of the suit. It has also found that from Jamabandi of samwat years 2050 to 2053 it is clear that the plaintiff was Gair-Khatedar, therefore, the S.D.O. Committed an error in holding the plaintiff as khatedar on the basis of the Jamabandi of samwat years 2030 to 2033. It has also found in its order that spot inspection was made on 24.06.95 which revealed the possession of the defendants was an old one. Not only that boundaries were also demarcated by walls on the land. On this ground the R.A.A. also found that as per the spot inspection the defendants had separate possession over particular piece of land. (7). Once this finding of fact is arrived at the first appellate authority then, in second appeal, the Board of Revenue should have been slow in interfering with such finding of fact recorded by the Revenue Appellate Authority. It appears that the Board of Revenue considered the finding recorded by the S.D.O. while decree- ing the suit rather than the finding recorded by the R.A.A. in appeal. The Board of Revenue allowed the second appeal of the plaintiff on the ground that except the oral evidence regarding possession of the land there was no documentary evidence led by the defendants in their favour whereas there was voluminous documentary evidence in the form of Jamabandi, Girdawari. etc. in favour of the plaintiff. Therefore, the second appellate authority committed an error in allowing the appeal. (8). As stated earlier, the scope of second appeal would be very narrow and limited. When the first appellate authority on the appreciation of the evidence-oral as well as documentary- came to the conclusion and found that the defendants` possession was an old one for more than 30 to 35 years then in my opinion, it was not open to the Board of Revenue to come to a different conclusion. It may be stated that the Board of Revenue has also observed that even if it is believed that there was an old possession of the defendants for more than 30 to 35 yeas, then also, there was no documentary evidence in that behalf like Girdawari, Lagan-receipts, etc. It may be stated that the Board of Revenue has also observed that even if it is believed that there was an old possession of the defendants for more than 30 to 35 yeas, then also, there was no documentary evidence in that behalf like Girdawari, Lagan-receipts, etc. This approach of the Board of Revenue was wholly wrong. Once the Court comes to the conclusion that the defendants possession was an old one of more than 30 years then, under such circumstances, suit of the plaintiff cannot be decreed particularly when he had miserably failed to prove that two years prior to filing of the suit he was forcibly dispossessed by the defendants. (9). The defendants are admittedly in possession of the land since more than 30 to 35 years as held by all the three courts below, therefore, it would be a travesty of justice to dispossess them after such a long time when they have cultivated the land for over three decades, as held by the Hon`ble Supreme Court in the case of Brij Lal vs. Board of Revenue & Others (1). (10). In view of the above discussion, the writ petition is allowed. The impugnec judgment and order at Annex 3 dated 17.3.98 and decree at Annex. 3A, passed by the Board of Revenue, are hereby quashed and set aside. The judgment and order at Annex-2 dated 28.06.95, passed by the Revenue Appellate Authority, Chittorgarh is hereby restored.