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Rajasthan High Court · body

2001 DIGILAW 84 (RAJ)

Ghasi Ram v. Board of Revenue

2001-01-17

B.J.SHETHNA, H.R.PANWAR

body2001
Honble SHETHNA, J.–This special appeal is arising out of judgment and order dated 5.12.96 passed by the learned Single Judge of this Court dismissing writ petition No. 2393/86 filed by the appellants-petitioners whereby the learned Single Judge refused to interfere with the judgment and order passed by the Board of Revenue in Second Appeal dismissing the suit of the appellants petitioners. (2). Facts which are not in dispute are as under: Appellants were in possession of the land in question since 1939 but they were cultivating the same since time immemorial. They led evidence in their favour before Asstt. Collector but no evidence whatsoever was led by the State. No. before evidence of rebuttal was led by the State trial court. On the evidence available the trial court decreed the suit. (3). Appeal against the same was dismissed by the first appellate authority i.e. R.A.A. was also dismissed. The State of Rajasthan filed review petition which was allowed and the matter was remanded to the Board of Revenue with the following directions: ``Let the matter go back to the Board of Revenue for consideration only to the extent that whether the State has produced evidence the Court below without allowing to them produce any additional evidence to prove a presumption of the record of rights is incorrect. If it is held that no such evidence is adduced or in the record presumption of rights in favour of the petitioner must be held. Otherwise the Board is to decide the question in accordance with law. (4). On the matter being remanded to the Board of Revenue the Board of Revenue allowed the Second Appeal by judgment and order dated 27.9.86 which was challenged by the appellant before this Court in writ petition No. 2393/86 which was dismissed by the learned Single Judge. Hence, this special appeal. (5). From the earlier order passed by the learned Single Judge of this court in the writ petition filed by the State of Rajasthan it is clear that the matter was remanded to the Board of Revenue for consideration only to the extent as the whether the State has produced evidence before the Court below or not? They were prevented from leading any additional evidence to prove the record of rights. They were prevented from leading any additional evidence to prove the record of rights. It was specifically made clear that if the Board of Revenue comes to the conclusion that no such evidence was led then the Board of Revenue has to decide the matter in accordance with law. (6). It appears to us that the Board of Revenue has not properly construed the earlier order passed by this court while remanding the matter to it and proceeded to reappreciate the evidence in second appeal which was not permissible in law. For the impugned order passed by the Board of Revenue it is clear that no evidence of rebuttal was led by the State. Unfortunately, the Board of Revenue reappreciate the evidence in second appeal and came to the conclusion that the evidence led by the plaintiff was not sufficient. In second appeal there was a limited scope for the Board of Revenue and that too, when remand was made to the Board with the specific direction of this Court. (7). Unfortunately, the learned Single Judge has not consider these aspects of the matter and dismissed the writ petition filed by the appellant petitioners. (8). Before parting we must also state that appellants- petitioners are in possession of the land since last 60 years and it would be travisity of justice in disturbing their possession after so many years as held by the Supreme Court of India in Brij Lal vs. State (1). (9). In view of the above discussion there is no other alternative for this Court but to accept the special appeal and accordingly, this special appeal is accepted, the judgment and order dated 5.12.86 passed by the learned Single Judge dismissing the writ petition No. 2393/86 filed by the appellants petitioners is hereby set aside. The writ petition is accepted and the impugned judgment and order dated 27.9.86 passed by the Board of Revenue dismissing the suit of the appellant-petitioner is set aside and the judgment and order passed by the Asstt. Collector decreeing the suit of the appellant-petitioners in their favour and confirmed in appeal by the R.A.A. are hereby restored to the file. (10). Stay petition is also disposed of.