Hema Ram v. Board of Revenue, Ajmer — 1999 DIGILAW 1189 (RAJ)

Honble SHETHNA, J.–Admit. (2). Issue notice to the respondents. Learned standing counsel Mr. Mehta for the respondent Revenue Department is directed to accept the notice for the respondents. Mr. Jakhar to supply a copy of the petition. (3). By consent and at the request of the learned counsel for the parties, the matter is heard today finally. (4). The petitioners claim to be in possession of the land in question as per the registered sale-deed dated 14.4.67 executed by the original owner of the land-deceased Malar. The said-deed is at Annex.1. On the basis of the said sale-deed, mutation No. 47 was sanctioned on 20.11.67 in the name of Hema and Phoosa (Annex.2). On the basis of mutation No.47, Hema and Phoosa were entered as khatedars of the land in the revenue record and Jamabandi of Samvat Year 2021 to 2024 (Annex.3). (5). Malar expired in 1969 and on his death mutation No. 72 was sanctioned on 17.2.70 in the name of Kawari D/o Malar and she was entered as Khatedar in the revenue record in place of Malar by mutation No. 72 (Annex.5). Kawari sold the land bearing Khasra Nos. 57, 253, 253/2 and 56 to Sura Ram and Hema Ram and on the basis of sale-deed, mutation No. 215 was sanctioned in their name and later on by mutation No. 345, the land was entered in the name of Jugta and others. (6). The Tehsildar, Chohtan submitted an application under Section 82 of the Rajasthan Land Revenue Act before the Collector, Barmer against mutation Nos. 72, 215 and 345 in the year 1982. The learned Collector made a reference to Board of Revenue on 31.10.90 for setting aside the aforesaid mutations on the ground that Malar having 5 sons and 1 daughter and the sons of Malar migrated to Pakistan in the year 1965 and under the Mohammedan Law, the daughter has got only 1/3 share in the property of her father (Annex.6). The Board of Revenue accepted the reference on 19.6.97 and ordered that in 608.5 bighas of land Kawari has 1/7th share in the land and remaining share was ordered to be entered in the name of Government (Annex.7). (7). It is the case of the present petitioners that at the time of death of Malar, only 322 bighas land was in Khatedari and not 608.5 bighas and 66 bighas of land bearing Khasra Nos. (7). It is the case of the present petitioners that at the time of death of Malar, only 322 bighas land was in Khatedari and not 608.5 bighas and 66 bighas of land bearing Khasra Nos. 239 and 214 respectively were sold by Malar in his life time in the year 1967 which was entered in the name of purchasers as khatedars in the revenue record but without considering the said revenue record, the Collector wrongly entered those Khasra numbers in his order dated 31.10.90 and the Board of Revenue also without perusing the record accepted the reference in toto and entered the Khasra No. 239 also in its order dated 19.6.97. As per the order of the Board of Revenue, the mutation No. 20 was sanctioned of 56 bighas 12 biswas out of 66 bighas land bearing Khasra No. 239 which was in the Khatedari rights of the petitioners (Annex.8). (8). When the petitioners came to know about mutation No. 20 through Patwari, they filed review petitioner before the Board of Revenue on the ground that they had purchased the land from the original khatedar deceased Malar in the year 1967 and mutation No. 47 was also sanctioned in the year 1967 on the basis of the registered sale deed which was never under challenge before the Board of Revenue. It was also submitted that the Board of Revenue passed the order dated 19.6.1997 entering the land bearing Khasra No. 239 along with other land in the name of Government without impleading the petitioners as party in reference proceedings and without giving any opportunity of being heard by way of issuing notice to them. However, the said review petition of the petitioners was rejected by the Board of Revenue on 8.6.1999 (Annex. 9) on the ground of limitation as well as on the ground that when the petitioners were not parties to the proceedings then there was no question of issuing notice to them. This impugned order of Board of Revenue at Annex. 9 rejecting the review petition of the petitioners has been challenged in this petition by the present petitioners. (9). Learned counsel Mr. Jhakar rightly submitted that the Board of Revenue ought not to have dismissed the review petition on the ground of limitation. This impugned order of Board of Revenue at Annex. 9 rejecting the review petition of the petitioners has been challenged in this petition by the present petitioners. (9). Learned counsel Mr. Jhakar rightly submitted that the Board of Revenue ought not to have dismissed the review petition on the ground of limitation. He submitted that in catena of decisions, the Honble Supreme Court and this Court has held time and again that substantial justice is required to be done by the Courts and matters are not to be thrown out on the technical grounds like limitation etc. Thus, the first ground on which the review petition was rejected by the learned member of the Board of Revenue was wholly unsustainable. (10). The grievance of the petitioners in the review petition was that though they purchased the land from the deceased Malar as per the sale deed and according to that the mutation was also made in the record then without hearing them, the Collector could not have made a reference regarding their land. It was, therefore, prayed that they should have been heard before making the reference by the Collector and also by the Board of Revenue before deciding the case. Unfortunately, the Board of Revenue held that the petitioners were not parties in the main case, therefore, it was not obligatory on the Court to give him notice. This reasoning is also wholly unsustainable. (11). The third ground assigned by the learned member of the Board of Revenue was that the grounds taken in the said application were not convincing. This is no reasoning at all. The learned member should have first narrated the grounds taken in the application by the petitioners and then he has to give reasons before coming to the conclusion that they were not convincing. Simply stating that the grounds were not convincing was highly improper on the part of the Board of Revenue. (12). In view of the above discussion, this petition is allowed. The impugned order at Annex. 9 passed by the learned member of Board of Revenue on 8.6.99 is hereby quashed and set aside. The matter is remanded to the learned Board of Revenue with a direction that it will be heard and decided by any other member of the Board of Revenue other than the learned member who had decided the review petition. 9 passed by the learned member of Board of Revenue on 8.6.99 is hereby quashed and set aside. The matter is remanded to the learned Board of Revenue with a direction that it will be heard and decided by any other member of the Board of Revenue other than the learned member who had decided the review petition. The learned member of Board of Revenue shall decide the case on merits and in accordance with law by condoning the delay, if any, in filing the review petition. The Board of Revenue shall decide the review petition as early as possible preferably within six months from the receipt of the certified copy of this order. Till then, the petitioners shall not be dispossessed from the land in question.