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2000 DIGILAW 1021 (RAJ)

Khoob Lal v. Natwar Lal

2000-08-11

RAJESH BALIA

body2000
JUDGMENT 1. - This writ petition is directed against the judgment Annexure/3 dated 1.2.1999 passed by the Board of Revenue whereby the appeal filed by the petitioners was dismissed at the admission stage. 2. The brief facts giving rise to this writ petition are: that the petitioners filed a revenue suit in the year 1989 for declaration that Khasra No.59 and 61 of village Kesarganj, Patwar Circle Santpur District Sirohi have wrongly been recorded in the land revenue record during settlement as 'Rakbaraj'. According to the petitioners, their ancestors were Khatedars in possession of the land comprising Khasras No.51 to 59 and 61 but due to mistake and oversight, at the time of settlement, the land comprising Khasras No.59 and 61 remained to be entered in the name of the petitioners' ancestors. However, that error cannot result in destroying the right of the Khatedars. That suit was decreed in favour of the plaintiffs-petitioners by the learned Assistant Collector, Mount Abu vide his judgment (Annexure/1) dated 18.11.1991. In that suit, the State of Rajasthan and respondents No.9 to 12 were defendants. The present respondents No.1 to 8 had moved an application seeking leave to appeal against the said decree on 1.4.1997 before the Revenue Appellate Authority alongwith an application for condoning the delay caused in filing the appeal inter alia on the ground that they were not parties to the suit and thus, could not come to know about the decree in question. It was contended that they have litigating interest in the suit and, therefore, they may be permitted to file the appeal as aggrieved persons. It was further contended that they came to know about the decision of the suit when the plaintiff-petitioners had filed a civil suit for restraining the applicants from raising construction over the land in their possession by digging out the foundation. It was submitted that the plaintiffs have founded their suit on the ground that applicants have raised construction and are trying to raise construction in some part of Khasra No.59, which is their Khatedari land. The applicants have also contended that they are the allottees of abadi land situated in the neighboring land 18 biswas of the land comprising Khasra No.59 and their constructions in their Pattashud land are situated since long. The applicants have also contended that they are the allottees of abadi land situated in the neighboring land 18 biswas of the land comprising Khasra No.59 and their constructions in their Pattashud land are situated since long. According to the applicants, for long duration, the land in question is being used by the owners of the neighbouring land for placing their construction material as well as for reaching to their land through the land in question. It was on this premise that the litigating interest in the suit filed by the petitioner before the revenue court was claimed by respondents No.1 to 8. That application was allowed by the Revenue Appellate Authority. The Revenue Appellate Authority also allowed the appeal filed by respondents No.1 to 8 vide Judgment Annexure/2 dated 27.3.1998 by holding that the land in question was a Govt. land and is not a Khatedari land of the petitioners. 3. Against the Judgment Annexure/2 dated 27.3.1998, the petitioners preferred a second appeal before the Board of Revenue. The Board of Revenue vide its Judgment Annexure/3 dated 1.2.1999 dismissed the appeal filed by the petitioners observing that after perusal of the impugned judgment, it did not find any illegality committed by the first appellate court in exercise of its jurisdiction while passing the judgment because there are no provisions under the Rajasthan Tenancy Act by which suit can be decreed in favour of the plaintiff on the basis of unlawful possession and to entertain the suit under section 88 of the Act against the land which was already recorded as 'Rajkiya Bila Nam Abadi Bhumi'. 4. Having heard the learned counsel appearing for the parties, and perusing the material placed before me, I am of the opinion that the Judgments Annexures 2 and 3 dated 27.3.1998 and 1.2.1999 passed by the Revenue Appellate Authority and the Board of Revenue respectively cannot be sustained. 4. Having heard the learned counsel appearing for the parties, and perusing the material placed before me, I am of the opinion that the Judgments Annexures 2 and 3 dated 27.3.1998 and 1.2.1999 passed by the Revenue Appellate Authority and the Board of Revenue respectively cannot be sustained. The Board of Revenue has disposed of the appeal in most perfunctory manner even by not noticing the fact that the plaintiffs were not claiming any right over the land in question on the basis of unlawful possession but were merely claiming for correction of land revenue record in respect of land comprising Khasras No.59 and 61, which was claimed to be Khatedari land in possession of the petitioners' ancestors since long time before the filing of the suit even before coming into force the provisions of the Act. That suit has been decreed in favour of the plaintiffs by the learned trial court. Therefore, the Board of Revenue has totally misconceived the controversy raised in the suit by the plaintiffs by assuming that petitioners have claimed their title over the land in question on the ground of unlawful possession. That apart, from the perusal of the application moved by respondents No.1 to 8, it is apparent that they did not claim any proprietory interest in the land comprising in Khasras No.59 and 61. Their claim was that they are owners of the land adjacent to Khasra No.59, which is abadi land and their constructions are standing thereon since long. They have averred that their building material has been lying in a part of Khasra No.59 and they are using as a right of way to reach their land through the land in question. This interest at best can be considered to be a claim of a dominant heritage as easementary right of way and user of open land by the neighbour. No claim as to the proprietory interest in Khasra No.59 had been laid in the application filed by respondents No.1 to 8 to show any interest in declaration of the title claimed by the petitioners in the suit. The declaration of title was against the State and other defendants. The State Govt. in whose name the land in question was recorded in the land records about which there is no dispute, has not chosen to challenge the findings recorded by the trial court at no stage of the proceedings. The declaration of title was against the State and other defendants. The State Govt. in whose name the land in question was recorded in the land records about which there is no dispute, has not chosen to challenge the findings recorded by the trial court at no stage of the proceedings. In these circumstances, respondents No.1 to 8 cannot be considered to be aggrieved persons and hence, they could not have maintained the appeal. 5. Learned counsel for respondents No.1 to 8 has urged that though respondents No.1 to 8 have not claimed any proprietory interest in Khasra No.59 but the petitioners in their suit for injunction against the applicants have averred that respondents have raised construction in the said land. Suffice it to state that this contention raised by the plaintiffs-petitioners does not give a litigating right to applicants-respondents No.1 to 8 about the title of this land inasmuch as at no stage of time, they claimed any proprietory interest in the land in question. Whether they are in possession of any part of Khasra No.59 or not as claimed by the plaintiffs-petitioners in the civil suit will be a subject matter to be decided by the civil court in the proceedings pending before it and it is not for this Court to enter into this controversy nor it is open for the revenue courts to have entertained the dispute about the easementary claim of the applicants through the land in question. 6. As a result, this writ petition is allowed. The impugned Judgments Annexures 2 and 3 dated 27.3.1998 and 1.2.1999 passed by the Revenue App late Authority and the Board of Revenue respectively are set aside. There will ' no order as to costs.Petition Allowed. *******