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2002 DIGILAW 1616 (RAJ)

Bheraj Ram v. State of Raj.

2002-09-18

SUNIL KUMAR GARG

body2002
Honble GARG, J.–This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 30.9.1991 against the respondents with the prayer that by an appropriate writ, order or direction, Annex.2 dated 20.8.1992 by which the possession f the disputed land was taken over from the petitioner and the same was given to the respondent No.3 Molla Ram, be declared nullity and the respondents No.2 to 8 be directed to restore the possession of the land, which was taken through Annex.2., to the petitioner. (2). The case of the petitioner as put forward by him in this writ petition is as follows:- The land, details of which are mentioned in para 3 of the writ petition, was in actual physical possession of the petitioner as agricultural land and one Molla, who was earlier khatedar tenant of the disputed land died in the Samvat Year 2008 and after his death, khatedari rights over the disputed land were conferred on the petitioner by Tehsildar on 28.12.1977 and since then, the petitioner is enjoying khatedari rights over the land in dispute. The further case of the petitioner is that the respondents No.3 to 7 have no right over the disputed land and they are trying to dispossess the petitioner forcibly without due process of law. The further case of the petitioner is that seeing the threat of dispossession from the respondents No.3 to 7, he filed a suit being No.413/90 under Section 212 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as ``the Act of 1955) against them in the Court of Sub-Divisional Officer (North), Bikaner (respondent No.2). Alongwith the suit, application for temporary injunction was also filed by the petitioner and through order dated 18.6.1990, the status quo was ordered to be maintained and that order was extended from time to time, which is evident from Annex.1, order-sheets of the Court of Sub- Divisional Officer (North), Bikaner. The further case of the petitioner is that on 20.8.1992, the respondents no.3 to 8 forcibly dispossessed the petitioner from the disputed land with the help of the police and handed over the possession to the respondent No.3 Moola Ram and that proceedings are recorded in Annex.2, which is a copy of the daily dairy dated 20.8.1991 of Patwari Halka, Nal Badi, Bikaner. The further case of the petitioner is that thereafter, he filed an application before the respondent no.2 Sub-Divisional Officer (North), Bikaner under Order 39 Rule 2A CPC (contempt application) against the respondents No.3 to 5, but no action has been taken so far by the respondent No.2 on that application. Hence, this writ petition with the prayers as stated above. No reply to the writ petition has been filed by the respondents. (3). During the course of arguments, it has been submitted by the learned counsel for the petitioner that since the possession of the disputed land was taken over by the respondents No.3 to 7 forcibly, therefore, possession of the disputed land be restored to the petitioner and the respondents should be restrained from disturbing the possession of the petitioner. (4). On the other hand, the learned counsel for the respondents has submitted that it is a civil dispute and there is possibility that the suit, which was filed by the petitioner before the Court of Sub-Divisional Officer (North), Bikaner would have been decided by now and if not decided so far, as contended by the learned counsel for the petitioner, when civil suit is pending before the competent court, therefore, this writ petition is not maintainable and liable to be dismissed as such. (5). I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. (6). From perusing Annex.2, which is a copy of the daily dairy dated 20.8.1992 of Patwari Halka, Nal Badi, Bikaner, it appears that the possession of the land in dispute was taken over by the Tehsildar (Revenue), Bikaner with the help of the police in presence of the ACM (under training) and handed over the possession to the respondent No.3 Moola Ram. (7). It may be stated here that one of the grounds against the exercise of the discretion under Article 226 of the Constitution of India would be that the right claimed by the petitioner is not capable of being established in the summary proceeding under Article 226 of the Constitution of India because it requires a detailed examination of the evidence, as may be had in a suit. the object of Article 226 of the Constitution of India is the enforcement and not the establishment of a right or title. the object of Article 226 of the Constitution of India is the enforcement and not the establishment of a right or title. A petitioner under Article 226 of the Constitution of India cannot be converted into a suit. (8). In case of highly disputed questions of fact for decision, civil suit would be the appropriate action and in the present case, the suit is pending and the case of the petitioner is that he was dispossessed through there was a stay order in his favour and in such a situation, appropriate course for the petitioner would be to approach that Court, who granted the said stay order or where the suit is pending, but not this Court under Article 226 of the Constitution of India. (9). It may be stated here that where the petitioner has already instituted a suit, as in the present case, or other proceeding under the ordinary law, no application under Article 226 of the Constitution of India will ordinarily be entertained on the same questions, atleast so long as those proceedings are not disposed of. The petitioner cannot be allowed to purpose two parallel remedies at the same time. (10). In Jai Singh vs. Union of India & Ors. (1), the Honble Supreme Court has observed that under extra-ordinary writ jurisdiction under Article 226 of the Constitution of India, Court would not grant relief when the case involves determination of disputed questions of facts or when the petitioner has an alternative remedy. (11). In the present case, apart from the fact that disputed questions of facts are involved in this case, the petitioner has already availed the remedy by filing a suit before the competent court and this writ petition has been filed to quash that order/proceedings which had taken place during the pendency of that suit. Therefore, in no manner this writ petition is maintainable at all. (12). The learned counsel for the petitioner has placed reliance on the decision of this Court in Karam Singh & Ors. vs. State of Rajasthan & Ors. (2) and has submitted that the law as laid down in that case permitted this Court to restore possession taken by the respondents forcibly. I have gone through this authority. (12). The learned counsel for the petitioner has placed reliance on the decision of this Court in Karam Singh & Ors. vs. State of Rajasthan & Ors. (2) and has submitted that the law as laid down in that case permitted this Court to restore possession taken by the respondents forcibly. I have gone through this authority. This authority stands distinguished from the facts of the present case in the following respects:- (i) That in that case the possession was taken by the Government by virtue of the order Annex.14 dated 3/06/1969 passed by the Addl. District Magistrate (Colonization), Kota under the provisions of Section 22 of the Rajasthan Colonisation Act, but the position in the present case is different one. (ii) That in that case, the suits, which were filed earlier, were withdrawn by the parties before the writ petition was decided, but in the present case, suit filed by the petitioner is still pending. Thus, the above authority would not be helpful to the petitioner. (13). For the reasons stated above, under Article 226 of the Constitution of India, it would not be proper to restore the possession of the petitioner which has already been taken over by the respondents long back on 20.8.1991, especially when the suit in respect of disputed land is pending in the competent court in which question of possession and title over the land in dispute is involved and thus, this writ petition is liable to be dismissed. Accordingly, this writ petition filed by the petitioner is dismissed. No order as to costs.