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2002 DIGILAW 1809 (RAJ)

Alladin v. B. O. R.

2002-11-01

ARUN KUMAR, PRAKASH TATIA

body2002
Honble KUMAR, CJ.–This appeal is directed against the judgment of the learned Single Judge dated 26.9.1996 passed in S.B. Civil Writ Petition No.1941/86 whereby the learned Single Judge dismissed the writ petition of the petitioner. (2). Few relevant facts are that Niju Khan, predecessor in title of the appellant petitioners filed a Revenue Suit No.50/74 against respondent Nos. 4 to 6 under Sections 89, 91 and 92A of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as `the Act of 1955) wherein Niju Khan alleged that the land comprised in Khasra No.1499 measuring 22 bighas 11 biswas was in his cultivation since 7-8 years and he acquired khatedari rights over the land in dispute. Niju Khan submitted that respondent Nos.4 to 6 (defendant Nos.1 to 3) wanted to forcibly eject the plaintiff Niju Khan, therefore, Nijju Khan sought relief of declaration of khatedari rights and also prayed for relief of injunction against the defendants private respondents in the suit as provided under the above mentioned sections. (3). Subsequent to the institution of the- above Revenue Suit No.501/74, Bal Chand, the predecessor of the present respondent Nos.4 to 6 instituted a Revenue Suit No.52/74 under Section 92-A and 188 of the Act of 1955 against Nijju Khan, Asgar Khan and Alladin Khan. The Revenue Suit No.52/74 was stayed by the trial Court, it appears to. be because of the reason of bar under Section 10 of the Code of Civil Procedure. The Sub-Divisional Officer, Deedwana dismissed Revenue Suit No.50/74 on 30.9.1980 filed by Niju Khan as well as Revenue Suit No.52/74 instituted by Bal Chand. (4). It appears that the legal representatives of Niju Khan, as Niju Khan expired, preferred Revenue First Appeal No.261/80 before the learned Revenue Appellate Authority, Jodhpur, whereas the legal representatives of Bal Chand, as Bal Chand expired, preferred Revenue First Appeal No.26/80 before the same Revenue Appellate Authority. (5). (4). It appears that the legal representatives of Niju Khan, as Niju Khan expired, preferred Revenue First Appeal No.261/80 before the learned Revenue Appellate Authority, Jodhpur, whereas the legal representatives of Bal Chand, as Bal Chand expired, preferred Revenue First Appeal No.26/80 before the same Revenue Appellate Authority. (5). The learned Revenue Appellate Authority, Jodhpur dismissed the Revenue First Appeal No.261/80 filed by the present appellants (legal representatives of Niju Khan) and the learned Revenue Appellate Authority, while deciding Revenue First Appeal No.262/80 filed by the legal representatives of Bal Chand, found that the possession of the land in dispute was taken over during the pendency of the suit by Niju,Khan, therefore, the legal representatives of Bal Chand are entitled for grant of decree for possession even without amendment of plaint and the relief can be granted without there being any amendment of the plaint in view of provisions of Section 209 of the Act of 1955 and in view of the decision of this Court reported in 1958 RLW 90. (6). It appears that Revenue Second Appeal Nos.179/86 and 180/86 were preferred by the legal representatives of Niju Khan before the Board of Revenue, Ajmer challenging the judgment and decree dated 7.6.1986 whereby the suit of deceased Bal Chand was decreed for possession and the suit of the present appellants for declaration of Khatedari right and injunction was dismissed. (7). The Board of Revenue dismissed both the appeals by judgment dated 14.7.1986 against which the appellants preferred two writ petitions. One was D.B. Civil Writ Petition No.1942/86 Alladin & Ors. vs. Board of Revenue & Ors. This writ petition was against the dismissal of the suit of the present appellants. This writ petition was dismissed by the Division Bench of this Court by judgment dated 13.12.1988 holding it that the present appellants cannot be declared as Khatedar tenants and the Division Bench of this Court observed that in the writ petition, the petitioner himself has alleged that Niju Khan, the predecessor of the petitioner came in cultivatory possession in land in dispute in Samvat Year 2027 which commences from 7.4.1970 and the Division Bench also took note of the fact that no document evidencing the fact that the petitioner was recorded in the annual registers as tenant of Khudkast on 31.12.1969 as envisaged by Section 19(1AA) has been produced by the petitioner. The Division Bench held that in view of the finding recorded, the petitioners (the present appellants) did not acquire the Khatedari rights under Section 19(1AA) of the Act of 1955. Therefore, in view of the above facts, so far as the claim of right, title and interest in the land in dispute as well as right to seek injunction against eviction of the present appellants came, to an end. (8). The challenge to the same judgment of the Board of Revenue, so far as dismissal of the appeal of the present appellants against the grant of relief of decree for possession by the learned Revenue Appellate Authority in favour of the legal representatives of Bal Chand is concerned, this present D.B. Civil Writ Petition No.1941/86 which remained pending, was dismissed by the learned Single Judge vide impugned order dated 26.9.1996. (9). In these circumstances, while challenging the above judgment of the learned Single Judge dated 26.9.1996, the learned counsel for the appellants submitted that it is clear from Section 209 of the Act of 1955 that even if a relief is to be granted to a party concerned, which has not been asked in the, plaint then It is mandatory to frame issue with respect to the relief for which the party seeking relief. According to the learned counsel for the appellants, admittedly, here in this case, relief of possession was granted whereas the plaintiff Bal Chand only sought relief of grant of injunction and no issue was framed with respect to the relief for possession. According to the. learned counsel for the appellants, the provision of Section 209 of the Act of 1955 is mandatory which requires framing of issue for the relief which has not been asked for in the plaint by the plaintiff. Therefore, the judgment and decree passed by the learned Revenue Appellate Authority, Jodhpur in Appeal No.262/80 and the, judgment and decree dated 14.7.1986 passed by the Board of Revenue are contrary to law and deserve to be set aside. The learned counsel for the appellants further submitted, that the relief can be granted on the basis of pleadings and the relief claimed by the party in the suit. No relief can be granted for which factual foundation does not find place in the pleadings of the plaintiff. (10). The learned counsel for the appellants further submitted, that the relief can be granted on the basis of pleadings and the relief claimed by the party in the suit. No relief can be granted for which factual foundation does not find place in the pleadings of the plaintiff. (10). The learned counsel for the respondents submitted that the judgment and decree passed by the learned Revenue Appellate Authority is based upon the evidence recorded in the suit of the appellants themselves. The evidence was recorded in the case of Nijju Khan because of the fact that the proceedings of the suit of Bal Chand was stayed under Section 10 of the Code of Civil Procedure being subsequently filed suit of Bal Chand. According to the learned counsel for the respondents the fact has been recorded by the learned first appellate court that the possession was taken from the respondents by Nijju Khan and his successors during the pendency of the suit and this finding has attained the finality because of the decision of this Court because of dismissal of D.B. Civil Writ Petition No.1942/82 on. 13.12.1988. The plea which now the appellants wants to submit in defence against passing of the decree for eviction is covered by the decision of this Court dated 13.12.1988 and, if not, then also no other defence is available to the -appellants in view of the bar under Order 2 Rule 2 of the Code of Civil Procedure. (11). The. learned counsel for the respondents further submitted that the appellant has not alleged any prejudice for non-framing of issue and,, in fact, there has been no prejudice to the appellants by non-framing of the issue, therefore, also the appellants are not entitled for any relief on this ground of Section 209 of the Act of 1955. (12). We considered the arguments advanced by the Shri K.N. Joshi, learned counsel for the appellants and Shri S.N. Sharma, learned counsel for the respondents and also considered the judgment relied upon by the learned counsel for the appellants. (13). (12). We considered the arguments advanced by the Shri K.N. Joshi, learned counsel for the appellants and Shri S.N. Sharma, learned counsel for the respondents and also considered the judgment relied upon by the learned counsel for the appellants. (13). The crux of the matter centres around the interpretation of Section 209 of the Act of 1955 for which the judgment of the Division Bench of this Court was relied upon by the learned counsel for the appellants to, substantiate the argument that it is mandatory to, frame the issue even when relief is to be granted under Section 209 of the Act of 1955. The decision of the Division Bench of this Court in the case of Ramdeo vs. The Board of Revenue, Rajasthan & Ors. (1), in fact, goes against the appellants. The Division Bench considered the provisions of Section 209 of the Act of 1955 and held as under:- ``Broadly speaking, when an application under Section 209 is made and comes to be disposed of, it would be advisable to frame issues and give the parties an opportunity to lead evidence where it may be called for. But at the same time also held:- ``But the failure to frame issues in a given case cannot, in our considered judgment, have the effect of necessarily vitiating an order provided that that has not prejudiced the case of any, of the parties or resulted in a grave miscarriage of justice. (14). From the above judgment of Division Bench of this Court it is clear that even a relief has been granted under Section 209 of the Act of 1955 while invoking the help of Section 209 of the Act of 1955. It is not necessary that only because of non-framing of an issue, the judgment or order can be set aside. The party aggrieved is further required to prove that it has resulted a grave miscarriage of justice. Therefore, facts of this case are relevant which have been taken note of as mentioned above, which disclose that the claim of the appellant-petitioners with respect to right, title and interest in the suit property was negatived by the courts from Sub-Divisional Officer. the Revenue Appellate Authority, the Board of Revenue and by this Court when the, D.B. Civil Writ Petition No.1942/86 was dismissed by the Division Bench of this Court. the Revenue Appellate Authority, the Board of Revenue and by this Court when the, D.B. Civil Writ Petition No.1942/86 was dismissed by the Division Bench of this Court. By this final decision, even the right to seek injunction against the respondent descendants of Bal Chand has come to an end. The learned Revenue Appellate Authority, while deciding the another appeal filed by the legal representatives -)f Bal Chand took note of the fact that the evidence was recorded in the suit of the present appellants themselves because of the decision given on issue No.2 in the suit of predecessors of respondent Nos. 4 to 6 which was on the plea of the present appellants that the suit of Bal Chand cannot proceed as the appellants predecessors filed the suit earlier in time. The learned Revenue Appellate Authority also gave a finding in Appeal No.261/80 of the appellants themselves that the, respondents possession was taken over by the appellants during the pendency of the suit. The learned Revenue Appellate Authority, thereafter, relied upon the judgment of this Court delivered in the case of Azim Khan vs. The State (2), wherein this Court held that in case when the plaintiff is dispossessed from the land in dispute then the relief of possession can be granted to the plaintiff without there being any amendment in the plaint and this Court observed as under:- ``I am, therefore, clearly of opinion that it would be an entirely unnecessary protraction of this litigation to insist on an amendment of the plaint in connection with the relief which it was not necessary for the plaintiffs to ask for at the date of the suit and which can be granted to them without a prayer for amendment owing to subsequent development if such relief is called for. (15). In view of the above reasons, it is clear that the learned Revenue Appellate Authority has not committed any mistake in granting relief of decree for possession in favour of respondent Nos. 4 to 6 and, particularly, there is no allegation of any prejudice caused to the appellants in the writ petition. (15). In view of the above reasons, it is clear that the learned Revenue Appellate Authority has not committed any mistake in granting relief of decree for possession in favour of respondent Nos. 4 to 6 and, particularly, there is no allegation of any prejudice caused to the appellants in the writ petition. The facts of the case clearly show that, in fact, the provision of Section 209 of the Act of 1955 which is analogous to the provision of Order 7 Rule 7 of the Code of Civil Procedure, is meant for grant of relief without there being any formal amendment in the plaint and to prevent multiplicity of the proceedings. If the parties will be directed to amend the pleading for seeking relief then it will go contrary to the even language employed in Section 209 of the Act of -1955 which specifically pro-,,ides that this provision applies for grant of relief which has not been asked for in the plaint. Therefore, the submission of the learned counsel for the appellants with respect to the non-framing of issue vitiating the judgment and decree as well as lack of pleading in the facts of this cases cannot be accepted. (16). The learned counsel for the appellants tried to refer the judgments of the Board of Revenue delivered in other cases `to show that the Board of Revenue has taken a view that framing of issue for the purpose of grant of relief under Section 209 of the Act of 1955 is essential but the view taken by the Board of Revenue is not correct in view of the judgment of the Division Bench of this Court reported in the case. of Azim Khan (supra). (17). Hence there is no force in this appeal and the same is hereby dismissed.