Research › Browse › Judgment

Rajasthan High Court · body

1999 DIGILAW 1036 (RAJ)

Nand Lal v. State of Rajasthan

1999-08-13

B.J.SHETHNA

body1999
Honble SHETHNA, J.–All these petitions are disposed of by this common judgment and order as the same are arising out of common judgment and order dated 3.8.1995 passed by the Board of Revenue allowing 15 separate appeals filed by the State of Rajasthan. (2). Writ petition No.3351/95 is filed by Nand Lal. He filed suit no.37/89 on 11.4.1989 claiming that he is in possession of the land in question since samvat year 2018 i.e. since last 20 years in the court of S.D.O., Badi Sadri, Shri Natwarlal Ojha, R.A.S. against Smt. Kesi, Nandlal and Mst. Jamni under Sec. 88 and 188 of the Rajasthan Tenancy Act (for short the `Act) for declaration of the land in question as Khatedar tenant and for consequent correction to be made in the revenue reco- rd. Defendant Smt. Kesi filed reply dated 29.4.1989 within 18 days of filing of the suit and admitted the contents of the suit by putting up thumb impression on the reply giving her no objection for decreeing the suit. The suit was decreed within fortnight of filing the reply by S.D.O. Shri Natwar Lal Ojha on 12.5.1989. (3). Writ petition No. 3352/95 is filed by Shri Jagannath. He filed suit no. 54/88 on dated NIL claiming that he is in possession of the land in question since samvat year 2018 i.e. since last 20 years against Shri Bhagwana and Shri Mohan Lal. Mohan Lal was joined as defendant in the suit as the plaintiff came to know that defendant no.1 Bhagwana sold the land in question to his son-in-law Mohan Lal. Reply dated 11.4.1988 was filed by both the defendatns admitting the suit of the plaintiff and gi- ving no objection in passing decree in favour of the plaintiff before the S.D.O. Learned S.D.O. Shri G.R. Bagaria, R.A.S. within 7 days of filing of the reply decreed the suit on 18.4.88. (4). Writ petition No.3353/95 is filed by Dadam Chand. He filed suit no. 26/89 before the court of S.D.O. Badi Sadri on 30.4.89 claiming that he is in possession of the land since, 1958 i.e. for last about 30 years against Shri Magna and Jeet Mal. The suit was decreed ex-parte immediately within less than a month i.e. 24.4.89 by S.D.O. Badi Sadri Shri Natwar Lal Ojha on the ground that though the defendants were served with the summons, they remained absent, therefore, ex-parte order was passed. (5). The suit was decreed ex-parte immediately within less than a month i.e. 24.4.89 by S.D.O. Badi Sadri Shri Natwar Lal Ojha on the ground that though the defendants were served with the summons, they remained absent, therefore, ex-parte order was passed. (5). Writ Petition no. 3354/95 is filed by Bal Mukund. He filed suit no. 55/88 dated NIL before the S.D.O. Badi Sadri, Shri G.R. Bagaria against defendant Pratha claiming that he is in possession of the land in question since samvat year 2008 i.e.since last more than 30 years. Reply dated 11.4.1988 was filed by defendant Pratha admitting the contents of the suit giving no objection in passing decree as prayed for. On 18.4.1988, within seven days of filing of the reply, the S.D.O. Shri G.R. Bagaria decreed the suit. (6). Writ Petition No.318/96 is filed by petitioners Hemraj and Ganga Ram. They filed suit No.100/96 before the S.D.O. Badi Sadri Shri Narendra Dev Shukla against defendant Gautam claiming that they are in possession of the land in ques- tion since 1946 i.e. since last more than 40 years. On receiving the summon in the suit, defendant Gautam remained present at first instance before S.D.O., but lateron he did not remain present nor filed any reply therefore, the suit was decreed ex- parte on 4.7.1987 by S.D.O. Badi Sadri Shri Narendra Dev Shukla. (7). Writ Petition No. 541/96 is filed by petitioners Bagri Ram and Mohan Lal. They filed suit no.29/88 before S.D.O. Badi Sadri, Shri G.R. Bagaria against defendants Bhanwarlal and Maghraj claiming that they were in possession of the land in question since 28/5/70 i.e. for last 18 years. Though served, the defendants did not remain present, the suit was immediately ex-parte decreed on 11.4.1988 by S.D.O. Shri G.R. Bagaria. (8). Writ Petition no. 624/96 is filed by petitioner Pyar Chand. He filed suit no. 120/87 before the court of S.D.O. Badi Sadri, Shri Narendra Dev Shukla claiming that he is in possession of the land in question since samvat year 2007 i.e. for last about 40 years. Reply was filed by defendant Bhanwar Lal admitting the claim of the plaintiff and giving no objection to pass the decree as prayed for. Accordingly, the suit was decreed on 20.7.87 by S.D.O. Shri Narendra Dev Shukla. (9). Writ Petition no.695/95 is filed by Shri Prithvi Raj. He filed suit no. Reply was filed by defendant Bhanwar Lal admitting the claim of the plaintiff and giving no objection to pass the decree as prayed for. Accordingly, the suit was decreed on 20.7.87 by S.D.O. Shri Narendra Dev Shukla. (9). Writ Petition no.695/95 is filed by Shri Prithvi Raj. He filed suit no. 27/86 against defendant Bhanwar Lal claiming to be in possession of the land in question since samvat year 2008 i.e. for last about 40 years. Defendant Bhanwar Lal filed reply and admitted the claim of the petitioner, giving no objection to pass the decree as prayed for. Accordingly, on 1.3.1986, S.D.O. Shri Narendra Dev Shukla decreed the suit. (10). Writ Petition no.747/96 is filed by Shri Prithvi Raj. He filed suit no. 28/86 against defendant Mangilal claiming to be in possession of the land since last more than 35 years. Defendant Mangilal filed reply admitting claim of the petitioner giving no objection to pass the decree as prayed for. Accordingly, S.D.O. Narendra Dev Shukla decreed the suit on 1.3.1986. (11). It is to be noted that in all the aforesaid suits filed by the plaintiff-petitio- ners, the State of Rajasthan was not joined as party defendant thought it was prayed in the suits to declare them as Khatedar tenants and consequentally to make correction in revenue records. Coming to know about passing of such illegal and collusive decree by the respective S.D.O. declaring all the plaintiff-petitioners as Khatedar tenants the State of Rajasthan filed appeal decree no. 26/90, 112/90, 25/90, 113/90, 116/90, 85/90, 81/90, 92/90 and 79/90 respectively in aforesaid suits filed by the plaintiff-petitioners before the Revenue Appellate Authority, Chittorgarh. All these appeals came to be dismissed by Shri Balwant Singh Mehta by separate orders passed on 21.4.92 only on the ground of limitation, as according to him all the appeals were time barred for which no cause much less sufficient cause was shown in filing the appeals late. (At this stage I must state that alongwith nine appeals, State of Rajasthan had also preferred six separate civil appeals before the Revenue Appellate Authority in the suits filed by plaintiff, who are not before this Court as petitioners. Those appeals were also dismissed by separate orders passed by the Revenue Appellate Authority). (12). (At this stage I must state that alongwith nine appeals, State of Rajasthan had also preferred six separate civil appeals before the Revenue Appellate Authority in the suits filed by plaintiff, who are not before this Court as petitioners. Those appeals were also dismissed by separate orders passed by the Revenue Appellate Authority). (12). Aggrieved of the separate orders passed by the Revenue Appellate Authority on 21.4.1992 dismissing all the appeals filed by the State of Rajasthan on the ground of limitation only, the State of Rajasthan filed appeal decree no. 241/92, 248/92, 228/92,249/92, 246/92, 232/92, 240/92, 236/92 and 244/92 respectively before the Board of Revenue against the present respective petitioners, alongwith other six appeals no.227,229,234, 238,243,and 247 of 1992 against those plaintiff- petitioners in whose favour the suits were decreed, but they are not petitioners before this Court. (13). The Board of Revenue by its common judgment and order dated 3.8.95 treated the same as revision petitions and allowed the same and quashed the sepa- rate orders and decree dated 21.4.1992 passed by the Revenue Appellate Authority in aforesaid appeals filed before it and also quash the judgment and decree passed by S.D.O. Badi Sadri in all the suits filed before him on the ground that it was a collusive decree and it was in violation of Sec.42(b) of the Rajasthan Tenancy Act, 1955. These orders are challenged by the present petitioners in these above nine writ petitions. (It appears that in those six appeals, aggrieved persons have accepted the order passed by the Board of Revenue and not preferred to challenge it before this Court by way of writ petition as stated at the Bar by the learned counsel appearing for the petitioners and also from verification made by the office that in those appeals the petitions have not been filed.) (14). Learned counsel Shri D.S.Shisodia, Shri J.M. Bhandari and Shri Lalit Kawadia vehemently submitted that when the Board of Revenue came to the conclusion that Revenue Appellate Authority committed an error in dismissing the appeals on the ground of limitation then it should have remanded the matter to the Revenue Appellate Authority with a direction to decide the appeals on merit. It was submitted by them that it was not open to the Board of Revenue to treat those appeals as revisions and decide the same on merits. It was submitted by them that it was not open to the Board of Revenue to treat those appeals as revisions and decide the same on merits. It was also submitted that once the Revenue Appellate Authority refused to condone the delay in filing the appeals late and dismissed the same on the ground of limitation then no second appeal ag- ainst such orders would lie before the Board of Revenue as it cannot be said to be decree. Second Appeal lies only against the order of decree and dismissing the appeal on the ground of limitation is not a decree. It was, therefore, submitted that at the most State could have filed reference under Sec. 232 of the Rajasthan Tenancy Act, 1955 before the Board of Revenue when the Revenue Appellate Autho- rity refused to condone the delay in filing the appeals late and dismissing it only on the ground of limitation. It was also submitted that whether there was a sufficient cause or not for condoning the delay in filing the appeals late is a question of fact, therefore, it was not open to the revisional court to go into such question and decide the same in its revisional jurisdiction. In support of their submission reliance is pla- ced on the Supreme Court in case of Manindra Land and Building Corporation Ltd. vs. Bhutnath Banerjee and others (1). It was also submitted that the Board of Revenue completely failed to consider that u/Sec. 42 (b) of the Act sales effected after 1.5.1964 were ``void and the sales effected between 22.9.56 to 30.4.1964 were `voidable, but the sales effected prior to 21.9.56 before coming into force the Act cannot be said either voidable or void. It was, therefore, submitted that in some of the cases sales were effected even prior to 21.9.56, but the said fact was not at all considered by the Board of Revenue. Thus, on merits also the Board of Revenue committed a grave error in allowing those appeals by treating them as revisions. (15). However, learned counsel Shri Dinesh Maheshwari for the respondent State vehemently submitted that this Court should not entertain these petitions because the common judgment and order dated 3.8.95 has become final inasmuch as the respondents in those appeals before the Board of Revenue have not challenged the same before this Court. He further submitted that the petitioners are mere transfers. However, learned counsel Shri Dinesh Maheshwari for the respondent State vehemently submitted that this Court should not entertain these petitions because the common judgment and order dated 3.8.95 has become final inasmuch as the respondents in those appeals before the Board of Revenue have not challenged the same before this Court. He further submitted that the petitioners are mere transfers. All of them belong to non-scheduled caste and they claim to be in possession of the land on a transfer by way of sale deed from scheduled caste persons, which is on the face of it is illegal as per Sec. 42 (b) of the Act. He further submitted that petitioners filed suit before the S.D.O. for claiming Khatedari rights against those private respondents without joining the State of Rajasthan and obtained collusive decree. He submitted that the suit filed by them before the S.D.O. for declaring them as Khatedar tenants of the State was not at all maintainable in absence of State of Rajasthan being a party defendant in the suits. He, therefore, submitted that such collusive decrees passed by the S.D.O. were nullity, therefore, they were rightly quashed and set aside by the Board of Revenue in its revisional jurisdiction by treating them as revisions. He also submitted that the Revenue Appe- llate Authority wrongly dismissed the appeals on the ground of limitation, therefore, the Board of Revenue has rightly set aside those orders passed by the Revenue Appellate Authority. He also submitted that it was open to the Board of Revenue either to remand the matter to the Revenue Appellate Authority with a direction to decide those appeals on merits or the Board of Revenue itself can decide the appe- als as revisions because ex-facie the decrees passed by S.D.L. in favour of petitioner-plaintiffs were nullify. He, therefore, submitted the Board of Revenue having opted for second option and decided the appeals as revisions and set aside the orders passed by the Revenue Appellate Authority in appeals and also decrees passed by the S.D.O. then this Court should not exercise its supervisionary jurisdic- tion under Article 227 of the Constitution of India or extra ordinary jurisdiction under Article 226 of the Constitution of India when the Board of Revenue has decided the cases as per the public policy of the State Govt. of not accepting transfers of the land belonging to scheduled caste persons to non-scheduled caste persons. In support of his submission, Mr. Maheshwari has relied upon a judgment of learned Single Judge of this Court in case of Babu Singh vs. State of Raj. (2). At this stage, I must state that one more submission was made by the learned counsel for the petitioners that admittedly they are in continuous possession for more than 12 years, thus, they have got right by way of adverse possession on the land as they are in possession of the land since last 30-40 years. Relying upon my own judgment in case of Bhola Ram vs. Smt. Nanu and others (3), Mr. Maheshwari submitted that agreement to sale of land of scheduled caste persons in favour of non-scheduled caste persons held to be bad by this Court in Bhola Rams case (Supra). He therefore, submitted that when Board of Revenue exercised its revisional jurisdiction then this court should not interfere with such orders in a petition filed under Article 227 of the Constitution, the scope of which is very narrow and limited as he- ld by this Court in Mohd. Yunus vs. Mohd. Mustaqim (4). About adverse possession, he has relied upon my own recent judgment dated 26.7.99 delivered in S.B. Civil Writ Petition no. 2498/99 (5), wherein, also the delay of 27 years in making reference to the Board of Revenue was not considered as sufficient to interfere with the order passed by Board of Revenue as the Board of Revenue preferred to exercise its powers under Sec.9 of the Land Revenue Act in a case where land of scheduled caste person was transferred to non-scheduled caste person. In that case also the possession of the Acquisition, Anantnag and another vs. Mst. Katiji and others (6). The Supreme Court held that when substantial justice is pitted out against technical objection then substantial justice must prevail. (16). In view of the above, it cannot be said that the Board of Revenue has wrongly set aside the order passed by the Revenue Appellate Authority in its revisional jurisdiction. (17). It must be stated that in all these cases the petitioners claim to be in possession of the land on transfer by way of sale deeds prior to 1956 and in some cases prior to 1970. (17). It must be stated that in all these cases the petitioners claim to be in possession of the land on transfer by way of sale deeds prior to 1956 and in some cases prior to 1970. All suits are filed between 1986 to 1988 against the private defendants without joining the most important and necessary party i.e. State of Rajasthan. The suits were filed by plaintiff-petitioners to declare them as khatedar tenants before the S.D.O. under Sec. 88 of the Act. (18). In Writ Petition No. 541/96 filed by learned counsel Shri .M. Bhandari, one more point was raised that the State Govt. had filed suit under Sec.175 of the Tenancy Act as it was the duty of the State Govt. to file application or suit before the competent court for taking over possession of the land belonging to scheduled caste persons and the said suit was dismissed by S.D.O. on 22.9.80. The said order has become final as the same was not challenged further by the State in appeal. However, learned counsel Shri Maheshwari for the respondent State rightly submitted that the said suit was dismissed by the S.D.O. on the ground of maintainability and such order would not operate as resjudicata in subsequent proceedings. In support of his submission, Mr. Maheshwari has relied on Pawn Kumar Gupta vs. Rochiram Nagdeo (7). It is not disputed by learned counsel Shri Bhandari that the suit filed by the State under Sec. 175 of the Tenancy Act was dismissed by the S.D.O. on the ground that it was not maintainable. In that view of the matter, the Supreme Court Judgment in Pawan Kumar`s case (supra) will clearly apply in this case. (19). It is not disputed by learned counsel Shri Bhandari that the suit filed by the State under Sec. 175 of the Tenancy Act was dismissed by the S.D.O. on the ground that it was not maintainable. In that view of the matter, the Supreme Court Judgment in Pawan Kumar`s case (supra) will clearly apply in this case. (19). At the cost of repetition, I may state that when the common judgment and order dated 3.8.95 passed by the Board of Revenue is in consonance with the public policy of preventing transfers of land from scheduled caste persons to non-scheduled caste persons as provided under Sec.42 (b) of the Act and when the Board of Revenue was fully satisfied that it was a collusive decree and in absence of most important and necessary party i.e. State of Rajasthan being defendant in such suit which was decreed by the S.D.O. then this Court would not exercise either its extra ordinary jurisdiction under Article 226 of the Constitution or its supervisionary jurisdiction under Article 227 of the Constitution of India when substantial justice has been done in the matter and the attempt to get khatedari rights by the petitioners in a most fraudulent manner has been foiled by the Board of Revenue. (20). In view of the above discussion, all these petitions fails and are hereby dismissed with no costs. Stay, if any, granted earlier stands vacated forthwith.