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2001 DIGILAW 1461 (RAJ)

Devi Lal v. Ramesh

2001-09-13

RUKMANI HALDIA

body2001
HALDIA, Member.–This revision has been filed under Section 230 of the Rajasthan Tenancy Act, 1955 against the order dated 21.3.1998 of the Settlement Officer-cum-Revenue Appellate Authority, Kota. (2). Briefly stated the far of the case are that the petitioner filed a suit under Section 183 and 188 of the Act against respondents No.1 to 6 along with an application under Section 212 of the Act. The disputed land bearing khasra No. 329, measuring 4 bighas 7 biswas is situated in Gram Gadiakund, Tehsil Jhalrapatan. The contention of the petitioner was that he was the recorded khatedar on half portion of the land and the respondents were encroaching on the suit land on the plea that their father had earlier bought the said lands. The respondents plea was that their father had bought the disputed land on 7.7.1980 and since then they have been in possession of the land. The lower court vide its judgment dated 3.7.1997 on the basis of revenue records Oamabandi 2050 to 2053) and the fact that in mutation No. 107 dated 18.8.1994 the said land has been kept in mortgage by the petitioner with the Central Cooperative Bank issued temporary injunction against the respondents. Aggrieved by the said order the respondents went in appeal before the Settlement Officer-cum- Revenue Appellate Authority, Kota. The Revenue Appellate Authority accepted the appeal on the basis that as per evidence produced in the lower court the possession of the respondents was confirmed. He also directed that the petitioner should not interfere in the cultivatory possession of the respondents. This revision has been filed against the above stated order of the Revenue Appellate Authority dated 21.3.1998. (3). The learned counsel for the petitioner argued that as per the revenue records namely jamabandi Svt. 2033 to 2036 and Svt. 2050 to 2053 the lands has been shown in the khatedari of the petitioner and Nand Kishore (respondent No.5). There is no documentary evidence submitted by the petitioners regarding their title over the land accepting the photostat copy of a registered sale-deed. He also pointed out that though the sale has been effected in 1980 the petitioners had not taken any action for getting the revenue records corrected. In addition he pointed out that the lower court had erred in giving additional relief to the respondents by directing that the petitioner should not interfere in the cultivatory possession of the respondents. He also pointed out that though the sale has been effected in 1980 the petitioners had not taken any action for getting the revenue records corrected. In addition he pointed out that the lower court had erred in giving additional relief to the respondents by directing that the petitioner should not interfere in the cultivatory possession of the respondents. This plea was not a part of the memo of appeal submitted before the lower court. On the basis of revenue records it is evident that the petitioners possession on the disputed land was Confirmed. He drew attenti on to the rulings given in RRD 1986 page, 629 wherein it has been held that the main criteria to beconsidered at the time of granting injunction under Section 212 is the issue of possession. (4). Learned counsel for the respondents stated that since the sale has been registered it is a confirmed fact that the possession of the land had been handed over to the respondents. In this regard, he drew attention to the ruling given in RRD 1997 Pg.1. On the issue of not getting the entries in the revenue record corrected after the sale was effected, he pointed out that prior to 1992 mutation of fragmented holdings was not permitted under Sec.42 of the Rajasthan Tenancy Act, 1955. On the contention of the learned counsel for the petitioner that only a photostat copy of the sale-deed is available on the file he stated that the original sale-deed has been submitted in the file of the main suit. On the issue of additional relief being granted he pointed out as per provisions in Order 8 Rule, 6 of C.P.C. a court can consider additional. relief if sought for by the party. (5). The points raised during the arguments have been considered and the relevant record and law have been perused. (6). The learned counsel for the respondent has quoted various rulings given in RRD 1979 page 1, 1989 RRD page 572, RRD 1998 page 348 and RLR 1988(2) page 871 to support his case. I have gone through these rulings and I do not find any of them relevant in this case. (7). The relevant file of the trial Court S.D.O., Jhalawar, has been perused. S.D.O. has granted temporary injunction on the basis of the jamabandi submitted by the petitioner for Svt. I have gone through these rulings and I do not find any of them relevant in this case. (7). The relevant file of the trial Court S.D.O., Jhalawar, has been perused. S.D.O. has granted temporary injunction on the basis of the jamabandi submitted by the petitioner for Svt. 2050 to 2052 and the fact that the land has been kept in mortgage to the Central Co-op. Bank as attested in the mutation No.107 dated 18.8.1994. He has also held the view that the respondents have not got their names entered in the revenue records in spite of the sale having been effected in 1980. Moreover, the certificate of the Sarpanch, Gram Panchayat, further confirms the possession of the appellant. (8). On the question of mutation of revenue records the contention of the learned counsel for the respondents is correct that prior to 1992 the mutation of fragmented holdings was not permitted. The Government on 11.11.1992 has deleted this Section, and it has been laid down in various rulings (RBJ 1998 page 323 and RRD August 2001 page 365 = 2001(2) RRT 921.) that the amended provisions are prima facie retrospective in nature. The fact that the revenue records have not been changed has therefore, to be viewed against the above perspective. (9). It is well established principle as laid down in various rulings that in granting temporary injunction under Section 212, it is important for the courts to consider the factual position of possession on the disputed land as on the date of the application. The lower court has based its decision only on the documentary evidence submitted by the petitioner. Undoubtedly entries in jamabandi confer title but they are not adequate for proving cultivatory possession in case such a title is challenged. The certificate issued by the Sarpanch is also not adequate evidence since he has no powers to issue such certificates at his own level From perusal of the file of the lower court I also Find that the respondents have submitted three affidavits, namely, of Kishanlal, Sukhdev and Nandial confirming that the father of the respondents had bought the disputed land and the land has been in possession of the family since then. In fact Nand Kishore who is the recorded khatedar on the other half of the disputed land has stated that the petitioner sold the disputed land to the father of the respondents. In fact Nand Kishore who is the recorded khatedar on the other half of the disputed land has stated that the petitioner sold the disputed land to the father of the respondents. He has also stated that after the death of the father they have been in the cultivatory po session of the land. The petitioner produced no evidence before the lower Court to contradict these statements. (10). The question of the re stered sale-deed has been confirmed by the S.D.O. in his order and therefore the contention of the learned counsel for the petitioner that only photostat copy has been produced is not substantiated. As far as the questi(;11 of giving land on mortgage to the bank is concerned, banks generally grant loans on the basis of revenue records and do not go into the factual position o who is in cultivatory possession of such lands. In my view this argument is also not sustainable. (11). The respondents had produced evidence (registered sale-deed and affidavits of three persons), before the trial Court indicating their possession. The Presiding Officer should have, therefore, provided opportunity to both, parties to substantiate or contradict such evidence, This was not done as is evident from the file. (12). I have also perused the file of the Revenue Appellate Authority. In the iiicnio of appeal the respondents had not asked for relief for grant of temporary injunction against the appellant. in view of this, while accepting the appeal, the court has erred in giving this additional relief to the respondents. (13). Keeping in all these factors in mind the revision accepted and the order of the Revenue Appellate Authority is upheld so far as his decision regarding cancellation of the judgment of the lower court is concerned. However, his order granting temporary injunction in favour of the respondents is set aside. Pronounced in the open Court.