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2002 DIGILAW 1876 (RAJ)

Giarassa v. Board of Revenue

2002-11-25

K.S.RATHORE

body2002
JUDGMENT 1. 1. This writ petition is directed against the order dated 20.8.98 passed by the Board of Revenue, Ajmer in Appeal No. 223/1996. 2. Brief facts of the case are that the petitioner-Giarassa filed a revenue suit under Section 188 of Rajasthan Tenancy Act, 1955 for permanent injunction against respondent Nos. 5 to 13 and the brother of petitioner in the Court of Up-Zila Collector, Rajgarh in respect of agricultural land bearing Khasra No. 135, measuring 2 Bighas 15 Biswa and Khasra No. 137, measuring 1 Bigha 18 Biswa in village Mallana, Tehsil, Rajgarh. 3. One Shri Laxman-father of respondent No. 7 Jagdish, also filed a suit for declaration against the petitioner and others on 7.8.75 by which he claimed that he may be declared as Khatedar tenant of agricultural land bearing Khasra No. 137 and another suit No. 94/75 was also filed by Laxman against Gangadhar (brother of petitioner No. 1 and father of petitioner No.2) for permanent injunction in which also Laxman had claimed that he is recorded tenant of agricultural land bearing Khasra No. 137. 4. In revenue suit No. 14/81, three issues were framed in Revenue suits No. 40/75 and 94/75, 5 issues were framed. All these three revenue suits vide order dated 25.2.82 were consolidated and were heard together and decided by the common judgment dated 27.12.90 by the Deputy' Collector Rajgarh, Alwar. The Deputy Collector Rajgarh decreed the suit filed by the petitioner Giarassa and the suit filed by the petitioner Giarassa and the suit No. 40/75 and 94/75 filed by Laxman, father of respondent No. 7 were dismissed. 5. Against the judgment and decree dated 27.12.90 the respondents No. 5 to 13 filed an Appeal go. 18/91 before the Revenue Appellate Authority, Alwar. The Revenue Appellate Authority has dismissed the appeal vide its judgment dated 30.8.96 and maintained the judgment and decree dated 27.12.90 passed by Deputy Collector, Rajgarh. 6. The judgment and decree dated 27.12.90 passed by Deputy Collector, Rajgarh and order dated 30.8.96 passed by Revenue Appellate Authority Alwar has been challenged by respondent No. 5 to 13 by second appeal before the Board of Revenue under Section 224 of the Act of 1955. 6. The judgment and decree dated 27.12.90 passed by Deputy Collector, Rajgarh and order dated 30.8.96 passed by Revenue Appellate Authority Alwar has been challenged by respondent No. 5 to 13 by second appeal before the Board of Revenue under Section 224 of the Act of 1955. The Board of Revenue came to the conclusion that the Courts below did not decide the case by recording findings on each issue separately nor the findings on each issues were made basis for judgment and as such the Board of Revenue quashed and set aside the judgment dated 27.12.90 and 30.8.96 and remanded the case back to the Deputy Collector, Rajgarh to decide the matter afresh vide its judgment dated 20.8.98. 7. The judgment of Board of Revenue dated 20.8.98 has been assailed by the petitioner on the ground that the Board of Revenue has failed to consider that the Rule 24ORDER41 of Code of Civil Procedure prohibits remand of a case to lower Court where the evidence on record is sufficient for disposal of the case and appellate Court may determine case finally. 8. In support of his contention learned counsel for the petitioner Mr. K.K. Mehrishi placed reliance on the judgment reported in (1) AIR 1999 Supreme Court 1125;, (2) 1999(3) SCC 161 Head Note B, (3) 1997 (2) RLR 512 and (4) 1983 RLR 438 . 9. Learned counsel for the petitioner further submits that Board of Revenue has not rightly appreciated the judgments passed by the Courts below and arrived at wrong conclusion that the Courts below have not decided the issues in suit No. 40/75 and 94/75 whereas the Courts below in their judgments have clearly observed that since the issues framed in Suit No. 40/75 and 94/75 filed by the petitioner Giarassa are the same, same were decided jointly after analysing the evidence. These issues cover the whole controversy of the present case. Courts below have rightly arrived at the conclusion that the suit filed by the petitioner Giarassa deserves to be decreed and dismissed the suit No. 40/75 and 94/75 filed by the respondents. 10. Learned counsel for the petitioner further submits that the petitioner had clearly proved their khatedari rights over the land bearing Khasra No. 135 and 137, After analysing the evidence both the Courts below have upheld the khatedari rights of petitioner Giarassa. 10. Learned counsel for the petitioner further submits that the petitioner had clearly proved their khatedari rights over the land bearing Khasra No. 135 and 137, After analysing the evidence both the Courts below have upheld the khatedari rights of petitioner Giarassa. On the other hand the respondents-appellants had not been able to establish their khatedari rights over the land in question and the Board of Revenue has failed to properly appreciate the observance made by the Courts below. 11. The Board of Revenue has further seriously erred to hold that the issue with regard to present controversy has not been framed by the Courts below. 12. Learned counsel for the petitioner further submits that the respondents have no legal right over the disputed land as they are not in cultivatory possession and they cannot be termed as Khudkast and in view of Section 29 of Raj. Zamindari & Biswedari Abolition Act, 1959 no khatedari rights are vested in favour of the respondents. In view of Section 29 as from the date of vesting of an estate, the Zamindar or Biswedar thereof shall be a Malik of any Khudkasht land in his occupation on such date and shall, as such malik, be entitled to all the rights concerned and be subject to all the liabilities imposed on a khatedar tenant by or under the Rajasthan Tenancy Act, 1955. 13. Mr. Mehrishi in this regard placed reliance on the judgment reported in Budha Vs. Ainilal AIR 1991 Supreme Court 663 , wherein the Hon'ble Supreme Court has held that the appellant was not in possession/occupation of the said lands on the date of vesting of the estate of the appellant under the Act, the appellant, therefore, cannot claim khatedari rights in respect of the lands in dispute. 14. Mr. Mehrishi also referred Section 140 of the Rajasthan Land Revenue Act wherein all entries made in the record of rights shall be presumed to be true until the contrary is proved. He further submits that since during the settlement the khatedari rights were given to the petitioner and considering this fact that they are in the cultivatory possession and these entries made in the record of rights cannot be presumed that these entries are not true as the respondents have failed to prove contrary. 15. He further submits that since during the settlement the khatedari rights were given to the petitioner and considering this fact that they are in the cultivatory possession and these entries made in the record of rights cannot be presumed that these entries are not true as the respondents have failed to prove contrary. 15. In view of the facts and circumstances the Board of Revenue has wrongly arrived at the conclusion that this issue has not been decided by the Courts below as to how petitioners acquired the khatedari rights. 16. Learned counsel for respondent Nos. 5, 6, 8 and 9 submits that Board of Revenue has rightly remanded the matter back to the Courts below as the Courts below have seriously erred not to consider the suit for declaration filed by the respondent Laxman. He further submits that the Board of Revenue after analysing the record and the evidence came to the conclusion that the Courts below have not rightly decided the issues and has also not framed the specific issues to determine the present controversy. In such circumstances the Board of Revenue has only remanded the matter back to Deputy District Collector, Rajgarh to decide the matter afresh. 17. He further submits that Board of Revenue has rightly observed that as to how the petitioner acquired the khatedari rights and on the contrary the respondents were on the better footing and they are having the khatedari rights over the disputed land and it is only because the respondents have filed a suit for declaration. 18. Learned counsel for the respondents further submitted that since both the Courts below have seriously erred to consolidate all the three revenue suits and decided by a common judgment whereas each suit has its independent value and independent evidence to be adduced and the separate issues are to be framed to decide the each suit on merit. Without deciding suit separately the Courts below have consolidated all the three revenue suits and on the common issues decided the matter. This fact has rightly been appreciated by the Board of Revenue and nothing illegality has been committed by the Board of Revenue while passing the order of remanding the matter back to the Courts below for fresh adjudication. 19. Mr. This fact has rightly been appreciated by the Board of Revenue and nothing illegality has been committed by the Board of Revenue while passing the order of remanding the matter back to the Courts below for fresh adjudication. 19. Mr. Kapoor further submits that the provisions of Civil Procedure Code are not applicable and thus the provisions of Order 41 Rule 24 also are not applicable to the instant case. 20. Heard rival submissions of learned counsel for the respective parties and gone through the material available on the record and carefully perused all the relevant provisions of law as well as judgments referred by learned counsel before me. 21. To resolve the present controversy I deem it proper to peruse the issues framed by the Courts below. To determine the three revenue suits the Courts below has framed the following common issues: an style='font-family:Ankit' HINDI MATTER /b/span 22. By bare perusal of the issues so framed it appears that the controversy involved in three suits fully covers by the issues framed to determine the entire controversy. 23. After careful reading of the judgment passed by the Deputy District Collector, Rajgarh, Alwar and the Revenue Appellate Authority, Alwar further reveals that both the Courts below after giving thoughtful consideration to the each issues has given the finding and decided in favour of the petitioner. Whereas the Board of Revenue in its judgment has mentioned that the Courts below have not decided the issues framed by the Trial Court. It is further observed that no Specific finding has been given from the aspect of the acquiring of the khatedari rights by the petitioner. The Board of Revenue has not cared to examine the provisions of Section 140 of the Rajasthan Land Revenue Act wherein it is clearly indicated that the presumption as to entries and all entries made in the record of the rights shall be presumed to be true until the contrary is proved. It is the duty of the respondents to prove it contrary that such entries made in favour of the petitioner in the record of rights are contrary to the provisions of law. Since the respondents have failed to prove these entries contrary, therefore, presumption should be drawn in favour of the petitioner in view of Section 140. 24. It is the duty of the respondents to prove it contrary that such entries made in favour of the petitioner in the record of rights are contrary to the provisions of law. Since the respondents have failed to prove these entries contrary, therefore, presumption should be drawn in favour of the petitioner in view of Section 140. 24. Further the Board of Revenue has seriously erred and has not rightly appreciated that in the relevant point of time the respondents having a (sic no ?) possession over the disputed land and it was declared as Sewai Chak and on the contrary possession of the petitioner was proved and the khatedari rights are conferred upon the petitioner during the settlement Clows, therefore, the issues which have been determined by the Courts -below in favour of the petitioner is absolutely in accordance with the provisions of law and in view of the record. 25. I have also carefully scanned the judgments referred before me by learned counsel for the petitioner wherein the Supreme Court as well as this High Court has held that where the evidence upon record is sufficient to enable the appellate Court to pronounce judgment the appellate Court may, after resetting the issues, is necessary, finally determine the suit notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some grounds other than on which the appellate Court proceeds. 26. Having gone through the judgments passed by the Board of Revenue and ratio decided by the Hon'ble Supreme Court as well as this High Court, I am of the opinion that the judgment passed by the Board of Revenue suffers from illegality and deserves to be quashed and set aside.Consequently, the order of Board of Revenue dated 28.8.98 is herewith quashed and set aside and the writ petition stands allowed with no order as to costs.Petition allowed. *******