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2002 DIGILAW 1198 (RAJ)

Mohan Singh v. Board of Revenue

2002-07-09

SUNIL KUMAR GARG

body2002
Honble GARG, J.–This writ petition under Article 228 of the Constitution of India has been filed by petitioners. against the respondents on 4.8.90 with a prayer that by an appropriate writ order or direction, the judgment and decree dated 10.1.85 (Annex.1) passed by the Assistant Collector (Head Quarter), Nagaur, judgment dtd.5.1.89 (Annex.2) passed by the Revenue Appellate Authority (II), Jodhpur and the judgment dtd.27.10.89 (Annex.3) passed by the Board of Revenue may kindly be quashed. (2). It arises in the following circumstances: i) The predecessor-in-interest of the petitioners Shri Binjraj Singh (hereinafter referred to as the deceased) filed a suit under Sections 88 and 188 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act of 1955) against the predecessor-in-interest (defendants No.1 to 5) of respondents No.4 to 15 before the Assistant Collector, Nagaur alleging inter alia that the land in dispute was his khudkast land as he was erstwhile Jagirdar. This land was given to the original defendants No.1 to 5 for cultivation for one year and they vacated the land after one year and thereafter the original plaintiff (deceased) was in exclusive cultivatory possession of the land In question. It was further alleged that since the land was in personal cultivation of the original, plaintiff (deceased), he was Khudkast holder thereof and on resumption of Jagir, he had become khatedar tenant. (The petitioners are heirs of original plaintiff Binjraj Singh). The original defendants No.1 to 5 executed registered sale-deed dated 15.7.71 in favour of defendant No.6 (respondent No.16) in respect of land in question. It was further alleged in that suit that since the entries in the original revenue records in favour of original defendants No.1 to 5 were erroneous, the same error continued to be repeated in subsequent record and hence the entries recorded in the Revenue Record are not correct. Consequently, a prayer was made by the original plaintiff that the land in dispute be declared his khatedari land and perpetual injunction be granted. ii) The defendants No-1 to 5 did not put up their appearances before the Assistant Collector, Nagore and, therefore, proceedings were initiated exparte against them. The original defendant No.6 (respondent No.16) in whose favour the land was sold by the original defendants No.1 to 5 also did not appear and proceedings were initiated exparte against him also. ii) The defendants No-1 to 5 did not put up their appearances before the Assistant Collector, Nagore and, therefore, proceedings were initiated exparte against them. The original defendant No.6 (respondent No.16) in whose favour the land was sold by the original defendants No.1 to 5 also did not appear and proceedings were initiated exparte against him also. Thus whole stint of the original plaintiff was conducted exparte against all the defendants No.1 to 6. It was further alleged that since defendant No.6 (respondent No.16) appeared on behalf of the original plaintiff before the Assistant Collector, Nagore as a witness- and supported the case of the original plaintiff (deceased) rather than the case of defendant No.1 to 5 and his case, therefore, suit of the original plaintiff should have been decreed, but on the contrary, the learned Assistant Collector, Nagore through his judgment dtd.10.1.85 (Annex.1) dismissed the suit of the plaintiff Binjraj Singh. iii) That after being aggrieved from the judgment dtd.10.1.85 (Annex.1) passed by the Assistant Collector, Nagore, the petitioners preferred an appeal before the Revenue Appellate Authority (II), Jodhpur. The Revenue Appellate Authority (II), Jodhpur dismissed the appeal filed by the petitioners vide judgment dtd.5.1.89 (Annex.2) and upheld the judgment dated 10.1.85 (Annex.1) passed by the Assistant Collector, Nagore. iv) That aggrieved from the judgment dtd.5.1.89 (Annex.2) passed by the Revenue Appellate Authority Jodhpur, the petitioners preferred second appeal before the Board of Revenue. The learned Board of Revenue also dismissed the second appeal filed by the petitioners vide judgment dtd.27.10.89 (Annex.3) and upheld the judgment dtd.5.1.89 (Annex.2) passed by the Revenue Appellate Authority (II), Jodhpur. Hence, this writ petition with the above mentioned prayer. (3). In this writ petition, the main contentions of the learned counsel for the petitioners are as under: i) That the suit filed by the original plaintiff before the Assistant Collector, Nagore proceeded exparte against the defendants No.1 to 5 and 6 and therefore, the suit filed by the original plaintiff (deceased) should have been decreed automatically against all the original defendants including defendant No.6 (respondent No.16). ii) That since the defendant No.6 (respondent No.16) in whose favour the original defendants No.1 to 5 executed registered sale-deed, had supported the case of the original plaintiff, the suit of the original plaintiff should haVE been decreed even on the basis of admission made by the defendant No.6 (respondent No.16) and in not doing so, all the three courts below have committed illegality and the suit of thE original plaintiff was wrongly dismissed by th( Assistant Collector, Nagore at the first instance and thereafter by the Revenue Appellate Authority (II), Jodhpur and the Board Revenue. Therefore, it is prayed that the writ petition filed by the petitioners should be allowed and the impugned judgments passed by three courts below should be set aside. (4). On the contrary, the learned counsel for the respondents No.1 to 3 has supported the judgments passed by all the three courts below and submitted that the writ petition filed by the petitioners should be dismissed. (5). I have heard the learned counsel for the petitioners as well as respondents No.1 to 3. (6). There is no dispute on the point that oven in the present writ petition respondents No.4 to 16 have not put up their appearances. (7). The judgment dated 10.1.85 (Annex.1) passed by the Assistant Collector, Nagore by which the suit filed by the original plaintiff was dismissed contains the following findings: i) That the suit which was filed by the original plaintiff proceeded exparte against the original defendants No.1 to 5 and 6. ii) That the sale-deed which was executed by the original defendants No.1 to 5 in favour of defendant No.6 (respondent No.16) is dated 15.7.71. iii) That during the proceedings pending in the court of Assistant Collector, Nagore, an application dtd.12.4.84 was made on behalf of the original plaintiff that the names of .original defendants No.1 to 5 against whom the suit was filed by the original plaintiff be struck off as the original defendants No.1 to 5 had already sold the disputed land to original defendant No.6 (respondent No.16) an d that application was accepted vide order dtd.1.5.84 and the names of original defendants No.1 to 5 were struck off and thus, the suit which was filed by the original plaintiff remained pending only against defendant No.8 (respondent No.16) and that too exparte. iv) That in Jamabandi for the samvat year 2037 to 2040 dtd. iv) That in Jamabandi for the samvat year 2037 to 2040 dtd. 23.11.84, the name of father of original defendant No.1 to 5 was recorded. v) That the land in dispute was land of Doli and names of defendants No.1 to 5 were mentioned in khasra Girdawari of Samvat year 2010 to 2020 as Sub-tenant in column No.16. vi) That name of original plaintiff (deceased) was not shown in Khasra Girdawari in the column of Khudkast and in that column names of other persons were shown. The name of original plaintiff (deceased) was shown in Khasra Girdawari for the samvat year 2015 to 2019, but for these years, only his possession was mentioned and it was not mentioned and shown as to what he cultivated and because of this fact, no khatedari right could be accrued to the original plaintiff and the learned Assistant Collector, Nagore referred to Section 13 of the Act of 1955 in that respect in coming to above conclusion. vii) That the receipts which were produced. by the original plaintiff (deceased) were not found favourable for the original plaintiff by the learned Assistant Collector. viii) That original defendants No.1 to 5 were members of scheduled Caste and the land was sold by them to defendant No.6 (respondent No.16) who was also a member of Scheduled Caste and the defendant No.6 got title of the land through registered sale-deed dated 15.7.71 and therefore, that registered sale-deed could not be set aside merely the basis of statement of original defendant No.6 (respondent No.16). ix) That since mutation had also taken place in the name of original defendant No.6 after execution of the registered sale-deed, thus, he had become owner of the land in question. (x) Thus, from the facts narrated above, the learned Assistant Collector came to the conclusion that the original plaintiff had failed to prove his case that the disputed land was his Khud-kast land and further more the original plaintiff (deceased) had failed to prove the fact that on the date when the Act of 1956 came into force, the land in dispute was in his possession. Thus, keeping all the above aspects in mind, the Assistant Collector dismissed the suit through judgment dtd.10.1.85 (Annex.1). JUDGMENT DATED 5.1.89 (ANNEX.2) PASSED BY -THE REVENUE APPELLATE AUTHORITY (II). JODHPUR. (8). Thus, keeping all the above aspects in mind, the Assistant Collector dismissed the suit through judgment dtd.10.1.85 (Annex.1). JUDGMENT DATED 5.1.89 (ANNEX.2) PASSED BY -THE REVENUE APPELLATE AUTHORITY (II). JODHPUR. (8). There is no dispute that after being aggrieved from the judgment dtd.10.1.85 (Annex.1), the petitioners preferred an appeal before the Revenue Appellate Authority (II), Jodhpur which was dismissed vide judgment dtd.5.1.89 (Annex.2). It may be stated that the learned Revenue Appellate Authority accepted all the findings recorded by the learned Assistant Collector, Nagore in his judgment dtd.10.1.85 (Annex.1) on he basis of which the suit of the original plaintiff (deceased) was dismissed. (9). Apart from this, the learned Revenue Appellate Authority (II), Jodhpur further came to the following conclusions: i) That copy of Jamabandi which was necessary document should have been produced by the original plaintiff (deceased) along with the suit, but it was produced later on for the samvat year 2037 to 2040 dtd.23.11.84. That Jamabandi further revealed the fact that it was in the name of father of original defendants No.1 to 5 and the name of original plaintiff was not shown in that Jamabandi. ii) That the land in dispute was sold by original defendants No.1 to 5 through registered sale-deed dated 5.7.71, therefore, in absence of filing of suit for setting aside that sale-deed, the relief which was sought by the original plaintiff could not have been granted. iii) Thus, the learned Revenue Appellate Authority dismissed the appeal filed by the petitioners and upheld the judgment dated 10.1.86 (Annex.1) passed by the Assistant Collector, Nagore. JUDGMENT DATED 27.10.89 (ANNEX.3) PASSED BY THE BOARD OF REVENUE (10). Aggrieved from the judgment dated 5.1.89 (Annex.2), Passed by the Revenue Appellate Authority (II), Jodhpur, the petitioners filed a second appeal on before the Board of Revenue which too was dismissed by the Board of Revenue vide judgment dtd.27.10.89 (Annex.3). (11). Thus, it appears that the concurrent findings recorded by the learned Assistant Collector, Nagore in his judgment dtd. 10.1.85 (Annex.1) have been confirmed by the learned Revenue Appellate Authority (II), Jodhpur in its judgment dtd.5.1.89 (Annex.2) and by the Board of Revenue in its judgment dtd.27.10.89 (Annex.3) on the basis of which the suit filed by the original plaintiff was dismissed. (12). 10.1.85 (Annex.1) have been confirmed by the learned Revenue Appellate Authority (II), Jodhpur in its judgment dtd.5.1.89 (Annex.2) and by the Board of Revenue in its judgment dtd.27.10.89 (Annex.3) on the basis of which the suit filed by the original plaintiff was dismissed. (12). It may be stated that merely because the suit was proceeded exparte against the original defendants No.1 to 5 and thereafter against defendant No.6, it does hot mean that suit of the plaintiff should have been decreed automatically. Section 101 of the Indian Evidence Act which is relevant for the present controversy reads as under: 101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. (13). The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. (14). The party on whom the onus of proof lies must, in order to succeed, establish a prima facie case. He cannot on failure to do so, take advantage of weakness of his adversarys case. He must succeed by the strength of his own right and the clearness of his own proof. (15). Thus, initial burden of proving the case In his favour was on the original plaintiff and later on Petitioners and as per the findings of 3 courts below, the original plaintiff and later an the petitioners had failed to prove their case on the point that the land in question was their Khudkast land and entries in the revenue record in favour of original defendants No.1 to 5 and thereafter in favour of defendant No.6 (respondent No.16) were wrongly recorded. Therefore, since no evidence was led by original defendants No.1 to 5 and thereafter defendant No.6 (respondent No.16), it does not mean that suit of the original plaintiff should have been decreed because in this case the Petitioners have come with a clear case that the land in dispute was their khudkast land and this fact was not proved by the reliable and convincing evidence. It is observed at the cost of repetition that suit of any party which is proceeded exparte against the defendants cannot. It is observed at the cost of repetition that suit of any party which is proceeded exparte against the defendants cannot. be decreed merely on the ground that the suit has been ordered to be proceeded exparte. It can only be decreed when the case as put up by the plaintiff is proved 1 by cogent and convincing evidence. Hence, the argument that exparte suit of the original plaintiff and later on the petitioners should have been decreed is rejected. ON THE POINT OF APPLICABILITY AND SCOPE OF ARTICLE 227 OF THE CONSTITUTION OF INDIA (16). It is well established that it is only when an order of a tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution of India. (17). The power of general superintendence conferred by Article 227 involves a duty on the part of the High Court to keep all courts and tribunals within its territorial jurisdiction within the bounds of their authority, to see that they do what their duty require and they they do it in a legal manner. This means that the High Court can interfere in cases of- (a) Erroneous assumption or excess of jurisdiction. (b) Refusal to exercise jurisdiction. (c) Error of law apparent on the face of the record, as distinguished from a mere mistake of law or error of law relating to jurisdiction. (d) Violation of principles of natural justice. (e) Arbitrary or capricious exercise of authority, or discretion. (f) Arriving at a finding which is perverse or based on no material. (18). Under Art. 227, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its finding or order is clearly perverse or patently unreasonable. (19). So far as argument that the defendant No.6 (respondent No.16) has deposed in the Court that land in dispute was not in his possession Is concerned in my opinion, all the courts below have considered this aspect and they did not find this aspect In favour of the petitioners and the reasons have been assigned by the courts below in their judgments. From this point of view also, it cannot be said that this aspect was not considered by the courts below. The reasoning given by the learned Revenue Appellate Authority that since the sale-deed which was executed by the original defendants No.1 to 5 in favour of defendant No.6 (respondent No.16) has not been challenged or no suit has been filed for cancellation of that sale-deed and in absence of that no relief could be granted appears to be one of the solid grounds for rejecting the suit of the plaintiff and thus, all the courts below had rightly rejected the suit of the original plaintiff and the impugned judgments passed by the courts below do not call for interference of this Court and it does not appear that findings of fact recorded by the three courts below are perversely or patently unreasonable. (20). So far as the argument that since the petitioners are still in possession of land in dispute and, therefore, khatedari rights be conferred on them is concerned, it may be stated here that declaration of khatedari right cannot be awarded on a person merely on the basis of possession and so far as present case is concerned, the name of the original plaintiff in Khasra Girdawari was only found for the samvat year 2015 to 2019 and that too without any cultivation. Therefore, this, argument would not be helpful to the learned counsel for the petitioners. (21). Apart from this, where there is complete sale of khatedari land through registered sale-deed, the purchaser acquires khatedari rights. In this case, the land was sold to defendant No.6 (respondent No.16) by defendant No.1 to 5 and thus defendant No.6 acquires khatedari rights and not the present petitioners. (22). The fact that the petitioners had struck off the names of defendants No. 1 to 5 and thereafter produced defendant No.6 (respondent No.16) as his witness in exparte proceedings, to whom the land was d by defendants No.1 to 5 goes to show that the Statement given by defendant No.6 (respondent No.16) in favour of the original plaintiff was in collusion with original plaintiff because until and unless the sale-deed is set aside, the original plaintiff and now the petitioners are not entitled to any relief. (23). The learned counsel for the petitioners has placed reliance on a case of Jodhya Prasad Bhargava vs. Bhawani Bhargava (1). (23). The learned counsel for the petitioners has placed reliance on a case of Jodhya Prasad Bhargava vs. Bhawani Bhargava (1). This authority would not be helpful to the learned counsel for the petitioners for the reasons just mentioned above. (24). Since initial burden of proof in the present case was on the petitioners and as per the judgments of courts below, they had miserably failed to prove their case and when this being the position, the judgments in question cannot be set aside by this Court under Article 227 of the Constitution of India especially when there are concurrent findings of courts below against the petitioners and these findings do `not appear to be perverse or contrary to record and the writ petition filed by the petitioners is liable to be dismissed. For the reasons mentioned above, the present writ petition is dismissed. Cost made easy.