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2000 DIGILAW 365 (RAJ)

Jugal Kishore v. Board of Revenue

2000-03-16

ARUN MADAN

body2000
Honble MADAN, J.–The petitioners, by way of this writ petition have sought the relief inter-alia to quash and set aside the judgment of the Board of Revenue, Ajmer passed on 14.6.1990 (Ann. 6), 11.10.1990 (Ann. 7), 17.9.1998 (Ann. 11) and 22.7.1999 (Ann. 12) and that of Revenue Appellate Authority passed on 26.12.1994 (Ann. 10). The petitioners further prayed for restoring judgments dated 30.3.84 of the Assistant Collector (Trainee) Kota (Ann. 3), and dated 26.10.90 of the Assistant Collector (HQR) Kota (Ann. 8). (2). The facts leading to challenge of the impugned orders, referred to above, briefly stated, are that in their Suit No. 83/90 for permanent injunction filed under Sec. 188 of the Rajasthan Tenancy Act, 1955 (for short ``the Act) before the Assistant Collector (HQ) Kota the petitioners (Jugal Kishore & Others( filed an application under Sec. 212 of the Act, for temporary injunction in respect of an agricultural land measuring 9 bighas 13 biswas of Khasra No. 58 situated in village Nottana Tehsil Ladpura (District Kota) inter-alia claiming themselves as recorded Khatedar and their possession over it. On this application for temporary injunction upon considering reply of the respondent Nos. 3 & 4 to the application for temporary injunction and considering their rival claims ad interim temporary injunction was granted on 29.6.90 as prayed therein by the petitioners and this ad interim order was made absolute by grant of temporary injunction till final disposal of suit for permanent injunction, by order dated 26.10.90 of the Assistant Collector (HQR) Kota (Ann. 8), against which present respondent Nos. 3 and 4 (Ratanlal & Kanhaiyalal) preferred their appeal No. 157/91 before the Revenue Appellate Authority, Kota. (3). It is pertinent to mention that on 18.12.90 they (respondent Nos. 3 & 4) also filed an application under Section 144 of the Code of Civil Procedure for restoration of possession of the land in dispute in their favour before the Assistant Collector (HQ) Kota claiming that judgment dated 30.3.84 of the Assistant Collector (Trainee) Kota (Ann. 3) whereby in misc. case No. 37/84 on application filed under Section 183A of the Act by Nand Kishore (whose legal heirs are the present petitioners) Ratan Lal and Kanhaiya Lal (respondents Nos. 3 & 4) were directed to be dispossessed from the land in dispute, was set aside by the Revenue Appellate Authority Kota by judgment dated 22.8.84 (Ann. 3) whereby in misc. case No. 37/84 on application filed under Section 183A of the Act by Nand Kishore (whose legal heirs are the present petitioners) Ratan Lal and Kanhaiya Lal (respondents Nos. 3 & 4) were directed to be dispossessed from the land in dispute, was set aside by the Revenue Appellate Authority Kota by judgment dated 22.8.84 (Ann. 5) in an appeal under Section 223 of the Act inasmuch as it (Ann. 5) was also upheld by the Board of Revenue by judgment dated 14.6.90 (Ann. 6) in Revision Petition No. 352/84/TA/Kota filed by the present petitioners but the aforesaid application filed by the respondent Nos. 3 & 4 under Sec. 144 CPC was dismissed by the Assistant Collector (HQR) Kota on 21.1.91 (Ann. 9). (4). The respondent Nos. 3 & 4 preferred an appeal No. 608/90 being aggrieved by grant of temporary injunction in favour of the petitioners, under order dated 26.10.90 (Ann. 8) and appeal No. 157/91 against dismissal of their application under Section 144 CPC, under order dated 21.1.91 (Ann. 9). Both these appeals were allowed by the Revenue Appellate Authority under order dated 26.12.1994 (Ann. 10) whereby temporary injunction dated 26.10.1990 (Ann. 8) was vacated and while setting aside order dated 21.1.91 (Ann. 9), application dated 18.12.90 was accepted directing to deliver/restore possession of Khasra No. 58 measuring 9 bighas 13 biswas (land in dispute) in favour of the present respondent Nos. 3 & 4 in accordance with law. However, the present petitioners preferred two revision petitions feeling aggrieved against the judgment dated 26.12.94 (Ann. 10) but these revision petitions were dismissed by judgment dated 17.9.98 (Ann. 11) of the Board of Revenue, upholding the judgment dated 26.12.94 (Ann. 10) of RAA Kota. Review Petition filed by the petitioners were also rejected by the Board of Revenue under judgment dated 22.7.99 (Ann. 12). Hence, this writ petition, reply to which has been filed by the respondent Nos. 3 and 4, wherein filing of application under Section 183A of the Act by Nandkishore and consequential passing of judgments by the revenue courts below thereon have not only been denied but the contention as to the land in dispute being mortgaged with respondent Nos. 12). Hence, this writ petition, reply to which has been filed by the respondent Nos. 3 and 4, wherein filing of application under Section 183A of the Act by Nandkishore and consequential passing of judgments by the revenue courts below thereon have not only been denied but the contention as to the land in dispute being mortgaged with respondent Nos. 3 and 4 was also strongly denied by contending inter alia that the land in fact was sold by Nandkishore as Rajput (who did not belong to Scheduled Caste) to them; and that the petitioners cannot now be permitted to challenge the orders of the Board of Revenue passed on 14.6.90 (Ann. 6) and 11.10.90 (Ann. 7) in earlier proceedings initiated under Sec. 183A of the Act because they have attained finality inasmuch as they cannot be challenged in the present proceedings arising out of a subsequent suit under Sec. 188 of the Act, after inordinate delay of nine years. (5). I have heard the learned counsel for the parties at length and carefully perused the memo of writ petition and reply thereto so also accompanying judgments/documents or record. (6). Challenging the judgments dated 22.8.84 (Ann. 5) of the Revenue Appellate Authority Kota which stood upheld by judgments dated 14.6.90 (Ann. 6) and 11.10.90 (Ann. 7) of the Board of Revenue, Shri K.K. Mehrishi learned Senior counsel for the petitioners contended that by aforesaid judgments the revenue courts below have wrongly dismissed application under Section 183-A of the Act merely because it was signed by petitioner Jugal Kishore who was not recorded Khatedar tenant whereas Nandkishore was his father who had not signed it and at the worst, it only amounted to a defect or irregularity in the suit proceedings not affecting the merits or jurisdiction of the revenue court trying it, inasmuch as before the revenue trial Court (Assistant Collector (Trainee) Kota) in suit proceedings under Sec. 183A of the Act, original recorded Khatedar Jugal Kishore though admittedly had not signed the application under Sec. 183A of the Act but appeared as a witness and thus cured that defect ratifying omission on this part as to sign on the application. Therefore, Shri Mehrishi contended that the aforesaid judgments (Ann. 5, 6 & 7) are wholly illegal and deserve to be set aside while judgment dated 30.3.84 (Ann. Therefore, Shri Mehrishi contended that the aforesaid judgments (Ann. 5, 6 & 7) are wholly illegal and deserve to be set aside while judgment dated 30.3.84 (Ann. 3) of Assistant Collector (Trainee) Kota allowing application of the petitioner under Section 183A of the Act deserves to be restored. (7). On the other hand, Shri Ganesh Meena appearing for Shri S.N. Pareek, learned Senior Counsel for the respondent Nos. 3 and 4, contended that the petitioners cannot be allowed to challenge the judgments having been passed in a suit proceedings under Sec. 183A of the Act long back in the year 1990 which had attained its finality because these judgments (Ann. 5, 6 & 7) have since never been challenged before this Court and cannot be now permitted to be challenged in this writ petition after inordinate delay and latches that too by way of subsequent and distinct proceedings under Sec. 212 of the Act for grant of Temporary Injunction and under Sec. 144 CPC for restitution of possession in favour of respondent Nos. 3 and 4 over the land in dispute. (8). In my considered view, I find substance in the contention raised by Shri S.N. Pareek, for manifold reasons. Firstly, this writ petition having arisen out of proceedings under Section 212 of the Act for temporary injunction and under Section 144, CPC for restoration of possession to the respondent Nos. 3 and 4, the petitioners cannot be allowed to challenge the validity of the judgments (Anns. 5 to 7) having been passed long back which have since attained its finality since 1990 and therefore, their writ petition for second relief prayed for restoring judgment dated 30.3.84 (Ann. 3) of the Assistant Collector (Trainee) Kota, deserves to be dismissed. (9). However, I would like to refer to brief resume to the earlier proceedings of Sections 183A of the Act and the circumstances in which judgments (Ann. 5, 6 & 7) were passed; which have attained finality. (10). Admittedly, an application was filed on 31.1.83 by Nand Kishore father of the petitioner No.1 Jugal Kishore under Section 183A of the Act before the Assistant Collector, Kota claiming that the land in dispute was mortgaged prior to 9-10 years to 31.1.83 (date of application) i.e. more than five years ago with respondent Nos. (10). Admittedly, an application was filed on 31.1.83 by Nand Kishore father of the petitioner No.1 Jugal Kishore under Section 183A of the Act before the Assistant Collector, Kota claiming that the land in dispute was mortgaged prior to 9-10 years to 31.1.83 (date of application) i.e. more than five years ago with respondent Nos. 3 and 4 who have refused to redeem the mortgage by relinquishing its possession to the petitioners whereas on the other hand, in their counter filed on 7.5.83 denying the petitioners case of mortgage, they claimed their possession over the land in dispute by virtue of registered sale deed dated 20.4.1974 having been executed by applicant Nand Kishore and it was also claimed that the sale deed having been duly registered and executed by Nand Kishore who claimed as Rajput and did not belong to Scheduled Caste, was not void-ab-initio. The Assistant Collector Kota in his judgment dt. 30.3.84 (Ann. 3) at page 3 though held the sale deed proved as registered having been executed by Nand Kishore and whose case as to the land being mortgaged was held to be false to his own pleading in application/proceeding under Section 183A of the Act but held Nand Kishore as a member of Scheduled Caste and thereby held registered sale deed as void-ab-initio and therefore, ordered to eject the respondent Nos. 3 and 4 from the land in dispute, against which, the respondent Nos. 3 and 4 went in appeal before the Revenue Appellate Authority. The RAA in its judgment dated 22.4.84 set aside the judgment (Ann. 3) of the Assistant Collector, Kota, holding provisions of Section 183A of the Act not maintainable at the instance of Jugal Kishore as the application was not signed by Nand Kishore so also the hand written statement which were signed by Jugal Kishore not as a Khatedar tenant. It was also held on the evidence on record i.e. Jamabandi Samvat Year 2032-35 that Nand Kishore was not Khatedar tenant but Gair Khatedar and whose land was shown as mortgaged with Land Development Bank, inasmuch as no power of attorney in favour of Jugal Kishore as executed by Nand Kishore authoising him to sue on his behalf has been produced on record. In these circumstances the RAA held that Jugal Kishore being not a Khatedar tenant or co-tenant to Nand Kishore nor having any attorney on his behalf has no right to get a decree of ejectment under Sec. 183A of the Act on an application duly signed by Jugal Kishore and not Nand Kishore though shown as applicant, and therefore, it held the proceedings under Sec. 183A of the Act vitiated because of having been initiated by an incompetent person. However, in last but one para the RAA has specifically observed that since the entire proceedings under Sec. 183A of the Act are incompetent and void-ab-initio, the question as to whether Nand Kishore belonged to Scheduled Caste or not, is left open for being decided in an appropriate proceedings and therefore, liberty was given to the present petitioners to initiate proceedings if they so desire to eject the respondent Nos. 3 and 4, before competent court in accordance with law. This judgment, as referred to above, dt. 22.4.84 of the RAA (Ann. 5) was upheld by the Board of Revenue in revision as well as review petitions by its judgments dated 14.6.90 (Ann. 6) and 11.10.90 (Ann. 7). (11). Here again, I would like to briefly discuss the provisions of Section 183A of the Act which envisage a procedure with regard to summary eviction of mortgagee on non delivery of possession of land after the expiry of the period of mortgage. It is envisaged therein that if the mortgagee does not deliver possession of the land as provided in sub-sections (3), (4) or (4A) of Section 43, the mortgagor may make an application within twelve years from the date of the expiry of the period of mortgage, to the Assistant Collector within whose jurisdiction land is situated and the Assistant Collector, after giving a reasonable opportunity to the parties of being heard, shall conclude the inquiry in a summary manner, as far as may be practicable within three months from the date of appearance of the parties and after being satisfied that the mortgagor is entitled to recover possession of the land, pass an order for delivery of possession of the land to the mortgagor. (12). (12). The very object of legislature in inserting of Section 183A in the Act is to safeguard interest of those mortgagors who have mortgaged their valuable land with the mortgagees for a particular period and in the event of the mortgagee not redeeming the mortgage within the period stipulated in the mortgage deed by relinquishing or delivering possession of the mortgaged land, with a view that the mortgagor may not be deprived of his valuable right over the mortgaged land, legal remedy is contemplated under Sec. 183A of the Act for safeguarding the interests of mortgagors which envisages a procedure with regard to summary eviction of mortgagee on non-delivery of possession of land after the expiry of the period of mortgage and so it provided that if the mortgagee does not deliver possession of the land as provided in sub-sections (3), (4) or (4A) of Section 43, the mortgagor may make an application within twelve years from the date of the expiry of the period of mortgage, to the Assistant Collector within whose jurisdiction land is situated and the Assistant Collector, after giving a reasonable opportunity to the parties of being heard, shall conclude the inquiry in a summary manner, as far as may be practicable within three months from the date of appearance of the parties and after being satisfied that the mortgagor is entitled to recover possession of the land, pass an order for delivery of possession of the land to the mortgagor. (13). The legal remedy which is contemplated under Sec. 183A of the Act is to safeguard the right, title and interest over the land in dispute of the persons affected by such acts of mortgagors who refuse to honour their obligations to give speedy remedy to them, coupled with benevolent object kept this aspect in view, the Act has provided a remedy to move by way of an application to the Assistant Collector within whose jurisdiction the land in dispute is situated and the Assistant Collector is duly empowered to conduct suitable inquiry in a summary manner and conclude it within three months as far as may be practicable from the date of appearance of the parties, subject to the satisfaction and findings being recorded by him that the mortgagor is entitled to recover possession of the land and then pass suitable orders for delivery of the possession to the mortgagor. (14). (14). In the case on hand, though the application was filed showing Nand Kishore as applicant but signed by Jugal Kishore (present petitioner No.1) under Sec. 183A of the Act claiming that the land in dispute was mortgaged by Nand Kishore with the respondent Nos. 3 and 4 but the respondent Nos. 3 and 4 while denying the claim of Jugal Kishore as to the land being mortgaged, claimed their lawful possession over the land in dispute by virtue of a registered sale deed having been executed by Nand Kishore. As already discussed above, the proceedings on application under Sec. 183A of the Act stands vitiated being not maintainable at the instance of the applicants either Jugal Kishore or Nand Kishore being not mortgagor and being not competent person to get respondent Nos. 3 and 4 ejected, as a result of Nand Kishore having been proved to be not Khatedar tenant of the disputed land in question. (15). In this back drop of events since all these findings recorded by the Revenue Appellate Authority stands confirmed by the Board of Revenue as per judgments (Ann. 5 to 7) long back since 1990 referred to above, and by virtue of having not been challenged ever since then in my view, they have attained finality and hence, I do not deem it proper to express any opinion as to their validity on merit and the petitioners cannot be allowed to re-agitate the same by way of this writ petition before this Court in proceedings arising out of subsequent and distinct proceedings under Sec. 212 of the Act for grant of temporary injunction and under Sec. 144 CPC for restoration of possession of the land in dispute, for the first time at this belated stage particularly when the courts below in their respective judgments (Ann. 5 to 7) referred to above, here left the question open as to the ejectment of the respondent Nos. 3 and 4 on the ground of the sale of land in dispute by Nand Kishore either being scheduled caste or not, in an appropriate proceedings. (16). Next contention of the learned counsel for the petitioner raised with regard to the first relief prayed for setting aside the Judgments (Ann. 11 & 12) of the Board of Revenue and the Revenue Appellate Authority (Ann. (16). Next contention of the learned counsel for the petitioner raised with regard to the first relief prayed for setting aside the Judgments (Ann. 11 & 12) of the Board of Revenue and the Revenue Appellate Authority (Ann. 10) in proceedings (u/s 212 of the Act for temporary injunction and u/s 144 CPC for restoration of possession of the land in dispute, is that the petitioners have been in possession of the land dispute since 23.4.84 as per Dakhalnama (Ann. 4) as Khatedar tenant by virtue of Judgment dated 30.3.84 (Ann. 4); therefore, they have an absolute right to get the respondent No.3 & 4 restrained by temporary injunction which has been rightly granted by the Assistant Collector (HQR) Kota by order dated 26.10.90 (Ann. 8) and 21.1.91 (Ann. 9) and in these circumstances, the respondent No.3 & 4 cannot be restituted to the possession over the land in dispute because they have no title to it and even otherwise by the alleged sale deed being void-ab-initio u/s 183 B of the Act, the respondent No.3 & 4 have no status better than that of a trespasser. (17). However, the learned counsel for respondent Nos. 3 & 4 contended that so far as the Judgment dated 30.3.84 (Ann. 3) is concerned, it stands over-ruled inasmuch as it has already been set aside by the Revenue Appellate Authority by Judgment dated 22.8.84 (Ann. 5) which also stood confirmed by Judgment dated 14.6.90 and 11.10.90 (Ann. 6 & 7) of the Board of Revenue, as referred to above, in proceedings u/s 183A of the Act. Therefore, Shri Pareek contended that after the Judgments holding the proceedings u/s. 183A of the Act as vitiated because of having been initiated by incompetent person being not khatedar tenant, have attained finality since 1990, the respondent No.3 & 4 have prima-facie case for restitution of possession of the land in dispute even if they were dispossessed as per Dakhalnama (Ann.4). He also stated that the respondent Nos. 3 and 4 have already been handed over possession by way of restitution as per Dakhalnama (Ann. R.3/1) dt. 7.8.99 by the State in compliance of order dated 6.8.99. (18). He also stated that the respondent Nos. 3 and 4 have already been handed over possession by way of restitution as per Dakhalnama (Ann. R.3/1) dt. 7.8.99 by the State in compliance of order dated 6.8.99. (18). Having considered the rival contentions of the parties on aforesaid aspect, I am prima facie of the view that the aforesaid contention as to first relief urged by the learned counsel for the petitioners does not merit any consideration because admittedly though earlier the petitioners in proceedings under Section 183-A of the Act came with a case of the land in dispute having been mortgaged with the respondent No.3 & 4 but subsequently they changed their pleadings claiming the registered sale deed being void ab-initio when the respondent No. 3 & 4 pleaded in their reply to the notice on the application u/s 183-A of the Act, on the ground that Nand Kishore belongs to Scheduled Caste, with a view to get the proceedings converted into one u/s 183-B of the Act but ultimately the Revenue Appellate Authority as well as the Board of Revenue held the proceedings u/s 183-A or 183-B of the Act themselves void-ab-initio being initiated by an incompetent person who was not khatedar tenant and who has no authority to sign the proceedings. Thus, admittedly the respondent No.3 & 4 were in possession over the land in dispute by virtue of the alleged registered sale deed dated 20.4.74 and even otherwise as per the case of petitioners as to the land being mortgaged, either since the date of sale or mortgage atleast prior to initiation of proceedings u/s 183-A of the Act and it was only upon the judgment dated 30.3.1984 (Ann.3), the petitioners were given possession of the land in dispute as per Dakhalnama (Ann. 4) but, as already discussed in preceding paragraphs, once the judgment dated 30.3.1984 (Ann. 3) was set aside by the courts below as referred to above and the respondent No. 3 & 4 have also been re-delivered possession of the land in dispute on 7.8.99 as per Dakhalnama (Ann. 4) but, as already discussed in preceding paragraphs, once the judgment dated 30.3.1984 (Ann. 3) was set aside by the courts below as referred to above and the respondent No. 3 & 4 have also been re-delivered possession of the land in dispute on 7.8.99 as per Dakhalnama (Ann. R.3/1), I am of the considered view that in the present proceedings u/s 212 of the Act and 144, CPC, out of which this writ petition has arisen, the Revenue Appellate Authority as well as the Board of Revenue have rightly concluded that the respondent No.3 & 4 have strong case for restitution and restoration of possession of the land in dispute after the judgment dated 30.3.1984 (Ann. 3) in compliance whereof the petitioners were given possession. As a legal corollary thereto, and in compliance of the judgments of the Board of Revenue (Ann. 5 to 7), the respondent No. 3 & 4 are entitled to restitution of the possession over the land in dispute implying thereby that the petitioners have no prima facie case in their favour for grant of temporary injunction U/s. 212 in suit proceedings u/s 188 of the Act, as has rightly been held by Revenue Appellate Authority and the Board of Revenue, which in my considered view, do not warrant any interference by way of invocation of jurisdiction under Article 226 and 227 of the Constitution of India. Moreover, the grant of temporary injunction is discretionary matter and in the facts and circumstances of the case when the matter already stands concluded by concurrent findings of fact in favour of the respondent No.3 & 4 as recorded by the courts below, and hence, I do not find any merit in this writ petition. (19). The learned counsel for the petitioners placed reliance upon the decision of the Privy Council in Md. Hussain vs. Kishya Nandan (1). I have examined the ratio of decision and in the light of what has been held by me in aforesaid paras, the ratio of decision cited by Shri Mehrishi does not apply to the facts and circumstances of the present case being distinguishable. (20). Hussain vs. Kishya Nandan (1). I have examined the ratio of decision and in the light of what has been held by me in aforesaid paras, the ratio of decision cited by Shri Mehrishi does not apply to the facts and circumstances of the present case being distinguishable. (20). As regards the contention of the learned counsel for the petitioners as to the registered sale deed dated 20.4.74 being illegal either U/s 183-B or 183-A of the Act and on account of that sale deed allegedly being void-ab-initio u/s 183-B of the Act, possession over the land in dispute was totally illegal rather as a trespasser, entitling the petitioners to get permanent as well as temporary injunction. Shri S.N. Pareek and Shri Ganesh Meena learned counsel for the respondent No. 3 & 4 strongly contended that even if respondent No. 3 & 4 are held to be trespassers on account of holding the registered sale deed as void ab initio u/s 183-B of the Act on in proceedings u/s 183-A of the Act, the suit for their ejectment not having been filed within a period of 12 years, the right, title and interest of the predecessor in title Nand Kishore whose legal heirs are the present petitioners stands extinguished by virtue of Section 63 (IV) of the Act, inasmuch as the application u/s 183-B of the Act since having not been filed as yet and the period of limitation prescribed for filing the suit i.e. 12 years having expired long before, the judgments of the courts below impugned in this writ petition cannot be held to be illegal. Having considered this aspect of the matter, I deem it appropriate not to express any opinion on merits on the aforesaid contentions made and the objection raised at the bar in this writ petition arising out of interim order, i.e. temporary injunction and I leave it open to the parties to raise the same at appropriate stage either in the present suit pending for permanent injunction u/s 188 of the Act or in any other or subsequent suit, if any, filed by any of the parties against the registered sale deed having been executed and registered long back on 20.4.1974 in favour of the respondent No.3 & 4, as has been left open by the courts below in earlier proceedings u/s 183-A of the Act. (21). (21). As a result of the above discussion, this writ petition being devoid of any merit is dismissed with no order as to costs.