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2002 DIGILAW 1528 (RAJ)

Govinda v. Kela

2002-09-03

S.C.SINGHAL

body2002
SINGHAL, Member – The applications-defendants have filed this revision under Section 230 of the Rajasthan Tenancy Act, 1955 (in short ``the Act) against the order of Revenue Appellate Authority, Sawai Madhopur dated 27.12.2000, by which the appeal filed under Section 225 of the Act has been dismissed. (2). In short, the facts of the case are that the non- applicant-plaintiff filed a suit under Section 188 of the Act in the court of S.D.O., Sawai Madhopur and also filed an application under Section 212 of the Act alleging that he is khatedar tenant of the disputed khasra No. 620 area 6 bighas 16 biswas and 622 area 22 biswas situated at village Didayach Tehsil Chauth Ka Barwada. He has also stated that he is in cultivatory possession of the disputed land. The applicants-defendants have given threatening to disposess him. Therefore, they may be restrained by way of temporary injunction not to disturb the peaceful possession of the plaintiff. The non-applicants-defendants filed their reply stating that the applicant has mortgaged the disputed land on 19.7.80 and thereafter-on 24.6.88 he has sold in consideration of Rs. 70,000/-. The trial court after hearing both the parties issued temporary injunction in favour of non- applicant vide its order dated 20.11.90 against which an appeal was filed by the applicants in the lower court, which has been dismissed by the impugned order. Now, this revision has been filed. (3). It is not disputed that the non-applicant belongs to scheduled caste whereas the applicants belong to scheduled tribe. So far as, revenue record is concerned, the non-applicant Kela has been entered as khatedar in the revenue record. The counsel for the applicants has argued that the non-applicant is not in cultivatory possession of the disputed land, because the disputed land has been mortgaged with the applicants by the non-applicant and thereafter it has been sold for Rs. 70,000/- to them on 24.6.88. Since then, they are in cultivatory possession of the disputed land. On the contrary the learned counsel of the non- applicant has contended that there is concurrent findings of the courts below; therefore, it should not be lightly interfered with. (4). I have considered the rival contentions of the both parties. After perusing the file of the trial court it comes out that the copy of the order of Addl. On the contrary the learned counsel of the non- applicant has contended that there is concurrent findings of the courts below; therefore, it should not be lightly interfered with. (4). I have considered the rival contentions of the both parties. After perusing the file of the trial court it comes out that the copy of the order of Addl. Tehsildar, Chauth Ka Barwada dated 30.12.97 is enclosed in which the non-applicant-plaintiff has filed an application under Section 183-B of the Act alleging that he mortgaged the disputed land with applicant-defendant Govinda for Rs. 35,000/- and he intended to pay the mortgage money, but the applicant had refused and he is still continuing in possession. The Addl. Tehsildar vide its order dated 30.12.97 referred the matter to the Asstt. Collector, Sawai Madhopur for initiating proceedings under Section 175 of the Act, as it contravenes the provisions of Section 42 of the Act. Both the parties have conceded that the proceedings under Section 175 of the Act are still pending. Thus, it is clear that the disputed land is in possession of the applicant-defendant and not in possession of non-applicant-plaintiff. It is settled principle of law that no one can be evicted in the garb of temporary injunction. One can only be evicted in due course of law. Since non-applicant-plaintiff is prima faciely not in cultivatory possession of the disputed land, he is not entitled to seek equitable relief under Section 212 of the Act. Both the courts below have erred in issuing temporary injunction in favour of non-applicant-plaintiff. (5). Consequently, the revision is accepted and the order of R.A.A., Sawai Madhopur dated 27.12.2000 and that of Asstt. Collector, Sawai Madhopur dated 20.11.90 is set-aside. Pronounced in the open court.