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2002 DIGILAW 1696 (RAJ)

Maniram v. State of Rajasthan

2002-10-09

GURJOT KAUR, S.C.SINGHAL

body2002
KAUR, Member – Plaintiff-appellant has filed this appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (In short ``the Act) against the judgment and decree dated 27.3.99 passed by the Settlement Officer-cum-Revenue Appellate Authority, Bikaner, by which the appeal filed by the respondent-defendant has been accepted. (2). In short, the facts of the case are that the appellant-plaintiff filed a suit under Section 88 and 188 of the Act in the court of S.D.O., Rajgarh stating that khasra No. 289 area 7 bighas situated at Rohi village Ghanau Tehsil Rajgarh is in cultivatory possession of his ancestors and he has acquired khatedari rights over the suit land, but it has been wrongly entered as government land in the revenue record, hence he may be declared khatedar over the disputed land and the respondent- defendant be restrained by permanent injunction not to interfere in his peaceful possession. The respondent-defendant filed its reply alleging that the plaintiff is trespasser over the suit land, hence suit be dismissed. The trial court, after framing necessary issues and recording evidence decreed the suit of the appellant-plaintiff Aggrieved by this, the respondent-defendant filed an appeal before the lower appellate court, which was accepted. Now this second appeal has been filed. (3). We have heard the learned counsel of both the parties and perused the impugned judgment and have also gone through the relevant record. (4). The learned counsel of the appellant has argued that the appellant-plaintiff is a landless person and the learned trial court after going through the circular of the government dated 1.4.91 has declared him as khatedar tenant over the disputed land, but the learned lower appellate court has erred in passing the impugned judgment. He has also argued that the appeal of the respondent before the learned lower appellate court had been filed time barred, but the learned lower appellate court has decided it on merit without condoning the delay occurred in filing the appeal. (5). The learned Dy. Govt. Advocate has supported the judgment passed by the learned lower appellate court and has argued that the plaintiffs status on the disputed land is that of a trespasser, therefore, khatedari rights cannot be conferred on him under any provision of the Act. (5). The learned Dy. Govt. Advocate has supported the judgment passed by the learned lower appellate court and has argued that the plaintiffs status on the disputed land is that of a trespasser, therefore, khatedari rights cannot be conferred on him under any provision of the Act. He has also argued that the respondent has also filed an application under Section of the Indian Limitation Act for condonation of the delay along with affidavit and the learned lower appellate court has decided the appeal on merits, hence no illegality has been committed by the learned lower appellate court. He has Urban Improvement Trust vs. Poonam Chand (1). (6). We have considered the rival contentions of both the parties. (7). The trial court has decreed the suit of the appellant-plaintiff on the ground that according to the Circular of the State Government dated 1.4.91 if any person is in possession of the sivai chak (Government Land) either on 15.7.84 or before that, then he is entitled for regularisation. It is not disputed that the disputed land has been entered as sivai chak through out in the revenue record produced by the appellant- plaintiff till year Smt. 2037 which has been shown as `Banjad. The khatedari rights can be conferred only under Section 13, 15 and 19 of the Act. The appellant-plaintiffs case does not come in any of the provision of this Act. The appellant-plaintiff has not produced copy of the jamabandi of any year, which is record of right. He has only produced copy of khasra girdawaris, which are not a record of right, and in these khara girdawaris he has never been entered as tenant of the disputed land. The learned Settlement Officer-cum-Revenue Appellate Authority, Bikaner has given clear cut finding in the impugned judgment that in year Smt. 2038 and 2040 only 3 bighas 15 biswas and 2 bighas 10 biswas respectively has been cultivated, but by whom it has been cultivated, no note to this effect has been given in khasra girdawaris. The learned trial court has also found that in Smt. 2050-51 notice under Section 91 of the Rajasthan Land Revenue Act has been served on the appellant-plaintiff, which shows that his possession is that of a trespasser on the disputed land. No khatedari rights can be conferred on the basis of Government Circular dated 1.4.91. The learned trial court has also found that in Smt. 2050-51 notice under Section 91 of the Rajasthan Land Revenue Act has been served on the appellant-plaintiff, which shows that his possession is that of a trespasser on the disputed land. No khatedari rights can be conferred on the basis of Government Circular dated 1.4.91. The learned lower court has discussed the oral as well as documentary evidence produced by the appellant- plaintiff in the impugned judgment and has come to the conclusion that the khatedari rights cannot be conferred on the appellant- plaintiff on the disputed land. We find no illegality or perversity in the judgment passed by lower appellate court. (8). Honble Rajasthan High Court has held in 1998 RRD 319 that ``now it must be taken to be well settled principle of law that before rejecting applications under Section 5 of the Indian Limitation Act and dismissing the appeals as barred by lapse of time, the courts of law are required to put a glance as a condition precedent on the merits of the appeals and unless the appeals are found to be hopelessly devoid of merits, ordinarily, efforts should be made to decide the appeal on merits. Since the lower appellate court on merits has not found the appeal filed by the respondent to be hopelessly devoid of merits and decided it on merits; therefore, no illegality has been committed by the learned lower appellate court. (9). In view of what have been discussed above, the instant second appeal is dismissed. Pronounced in the open court.