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2001 DIGILAW 203 (RAJ)

Mukhtiyar Singh v. Jagir Singh

2001-02-06

ASHOK JAIN, G.P.SHARMA

body2001
SHARMA, Member.–These are two second appeals filed under Sec.225 of the Rajasthan Tenancy Act (referred as the Act) against the judgment of R.A.A. Sriganganagar dt. 19.8.96 whereby the judgment of S.D.O. Sriganganagar dated 16.1.92 was set aside and the case was remanded to the trial Court. Since issue involved in these appeals are same and the parties are also same, therefore, they are being disposed of by this common judgment. Copy of:the judgment be placed on the respective files. (2). Leading facts of these appeals, are that in the trial Court two suits were filed by the parties. One suit Was filed under Section 881188 of the Tenancy Act with respect to Murraba no. 39 measuring 25 bighas by Jagir Singh, Pratap Singh, Vir Singh and Hamir Singh sons of Bhila Singh against Mukhityar Singh and Jalore Singh on 16.8.75. Another suit was filed under Section 183 by Mukhityar Singh, Jalore Singh, Balvant Singh sons. of Karamchand against Jagir Singh etc. on 27.9.75. In the suit filed by Jagir Singh etc. it was averred that before 40 years this land was purchased by one Munshi Singh from Jagir Singh etc. and at that time Hamir Singh was minor. The sale deed was executed in favour of Munshi Singh on the assurance that Munshi. Singh would pay the sale consideration at the residence but it was not done, therefore, possession was,, not handed over to him and defacto possession remained with the plaintiff i.e. Jagir Singh etc. and thus after the promulgation of Rajasthan Zamindari and Biswedari Abolition Act under Section 30 the plaintiffs became khatedar. On the other side the suit, filed under Section 183 by, Mukhityar Singh etc. with respect to murraba no: 39 and 40 measuring 50 bighas it was stated that this land belongs to Munshi Singh and he had two sons Vichitar Singh and Karamchand. Murraba no. 39 measuring 25 bigha came in share of Vichitar Singh and murraba no. 40 measuring 25 bigha came in share of Karamchand. After the death of Vichitar Singh 12-1/2 bigha came to his widow Pratap Kaur and remaining 12-1/2 bigha came to another widow Balvir Kaur Pratap Kaur gifted this 12-1/2 bigha through registered gift deed in favour of Mukhityar Singh on 17.5.59 and mutation of which was sanctioned in favour of Mukhityar Singh on 1.3.75. After the death of Vichitar Singh 12-1/2 bigha came to his widow Pratap Kaur and remaining 12-1/2 bigha came to another widow Balvir Kaur Pratap Kaur gifted this 12-1/2 bigha through registered gift deed in favour of Mukhityar Singh on 17.5.59 and mutation of which was sanctioned in favour of Mukhityar Singh on 1.3.75. Similarly Balvirkaur gave his share of 12- 1/2 bigha in favour of her brother-in-law sons of Karamchand namely Jalorsingh and Balvant Singh. Later on, on the basis of compromise land of murraba no. 40 measuring 25 bighas was kept by Vichitar Singh son of Munshi Singh and the land of murraba no. 39 was retained by Jagirsingh etc. Thus there is no dispute about murraba no. 40 concerned. In this way according to pleadings over murraba no. 39 there is reasonable possession of Jagir Singh etc. On 17.9.80 both suits were consolidated. Consequently after trial on 10.11.80 trial Court,decreed the suit filed by Jagir Singh etc. and suit under Section 88/188 was dismissed. Aggrieved from this two appeals were filed before the court of R.A.A. one in the name of Jagir Singh vs. Mukhityar Singh which was registered as appeal no. 65/80 and another namely Jagir Singh vs. Mukhityar Singh registered as 64/80. R.A.A. on 6.8.81 accepted the said appeals and the matter was remanded to trial Court on the basis that both the suits should be decided separately. Aggrieved from this two appeals were filed before the. Honble Board of Revenue. These appeals were accepted by the Board on 15.7.88 and the matter was remanded to trial Court with the finding that both the suits should be clubbed and be decided in that form. Again trial Court on 16.10.90 framed one additional issue in the name of issue no. 7 that whether suit filed by Mukhityar Singh etc. against Jagir Singh under Section f83 is within limitation. Thus trial Court on 16.1.92 decreed the suit filed under Section 88/188 with respect to 12-1/2 bigha in favour of Jagir Singh and Jagir Singh was declared as khatedar and remaining 1271/2, bigha was decreed in favour of Mukhityar Singh. Again three appeals were filed before the court of R.A.A. they were registered as appeal no. 91/92, 64/92 and 95/92. Thus R.A.A. vide its impugned judgment dated 19.8.96 accepted all these appeals and further remanded the cases to trial Court. Again three appeals were filed before the court of R.A.A. they were registered as appeal no. 91/92, 64/92 and 95/92. Thus R.A.A. vide its impugned judgment dated 19.8.96 accepted all these appeals and further remanded the cases to trial Court. Under these set of circumstances present two appeals were filed. (4). Heard the parties and perused the record. (5). Counsel appearing for the appellant argued th at the trial Court has flouted in framing issue no. 3 with respect to limitation because the Board has not asked for it. On the contrary Board has directed to club these suits and then pass final orders. There is issue no. 1 and there is no issue precisely on the point of adverse possession. Therefore it was wrong on the part of R.A.A. to discuss adverse possession and to pass orders on this basis. He submits that when finding of issue no. 1 was said to be illegal by the R.A.A. then there was no reason to remand the case to the trial Court. He also tried to urge that on 3.8.78 amended plaint was withdrawn in the suit of 88/188 then in that exigency judgment should have been passed on the basis of original plaint and in the said original plaint there is no version with respect to adverse possession. (6). On the contrary counsel appearing for the respondents argued that Jagir Singh etc. pleaded in his original plaint that since no amount was paid by the vendee therefore they did not give possession to the vendor and hence his client retained possession in that exigency and that form of possession certainly comes under the phrase of adverse possession. Thus in these facts there should be enquiry on the basis of original plaint. Under the circumstances according to his submission there is illegality in remanding the cases to trial Court. (7). After careful examination of the submissions made by the rival parties and perusal of the record we are of the candid view that since the amended plaint was withdrawn in the court on 3.8.78 the original,plaint which was presented under Section 88/188 of the Act, suit was under scrutiny and the R.A.A. prima facie on that plaint examined and analysed the case and this issue no. 1 is partly based on issue no, 2 and the facts which are pleaded by the plaintiffs in the suit under Sections 88 & 188 clearly stated that due to non-payment of sale consideration by the vendor they retained defacto possession -over the suit land. Under these circumstances their defacto possession by implication indicates prima facie hostile possession which is equivalent to, in the legal phraseology, adverse possession.,Under these circumstances we are of the view that the first appellate court has not erred in remanding the cases to the trial-Court for afresh enquiry on issue no.1 which relates to accrual of khatedari rights in favour of Jagir Singh etc.. But that issue can only be examined. alongwith the point that under what circumstances Jagir Singh etc. are holding defacto possession and paralled to it whether the suit filed under Section 183 by Mukhityar Singh etc. was within limitation or not. Since the issue of limitation is subject to the decision of issue no. 1 and since as per order of the Board of Revenue, trial of both the suits is consolidated, therefore, first appellate court was having no option but to remand the cases to trial Court. Thus he has not erred in exercising its jurisdiction vested in him. (8). Under these circumstances both the appeals fail and as such they are dismissed. Pronounced in open court.