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Rajasthan High Court · body

2002 DIGILAW 1975 (RAJ)

Shaitan Singh v. Chhitar

2002-12-23

B.B.MOHANTY

body2002
MOHANTY, Member – This second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (herein-after to be referred as the Act) is directed against the judgment dated 21.11.96 passed by Revenue Appellate Authority, Jaipur in appeal No. 71/95 whereby learned first appellate court reversed the judgment dated 16.10.95 of learned Asstt. Collector-1st, Jaipur in case No. 165/95 and accepted the application for restitution under Sec. 144 read with Section 151 CPC filed by respondent No.1 Chhitar S/o Jhuntha and ordered for restitution of possession and re- entry of 11 bighas land of old khasra No. 964 (new number 1662 2.59 hectares) of village Khora-Shyamdas, tehsil Amer, district Jaipur in the name of legal heirs of Jhuntha Ram in the revenue record. (2). Briefly stated facts, which are necessary for proper adjudication of all important issues involved in the appeal, are that Jhuntha Ram S/o Dhanna Lal filed a suit for permanent injunction under Sec. 188 of the Act in respect of khasra No. 423 measuring 2 bighas 3 biswas of village Khora-Shyamdas, tehsil Amer, district Jaipur against Nanu Singh (present respondent No.2) & others, in which a compromise dated 26.7.68 between the parties to the suit was submitted and attested on 26.8.68. Learned trial court vide its order dated 26.8.68 decree the suit as per terms of the compromise, according to which 1/4 share of total 66 bighas 5 biswas land of khasra numbers 419, 420, 421, 423 to 428, 444, 962, 963, 964, 413/992 and 415/995 was to be given to Nanu Singh S/o Roop Singh. Although the order was passed on 26.8.68, the decree was framed on 31.3.86. The present respondent No.1 filed on appeal against the judgment & decree of learned trial court before learned R.A.A., Jaipur who vide his judgment & decree dated 26.4.94 reversed the judgment dated 26.8.68 and decree dated 31.3.86 of learned trial court. (3). Although Nanu Singh was given 1/4th share in total land measuring 66 bighas 5 biswas on the basis of the compromise & judgment dated 26.8.68, he got 11 bighas land of exclusive khasra No. 964 mutated in his favour vide mutation No. 139 dated 15.10.69, which was later on sold to Birdi Chand S/o Hanut Ram who too got it mutated to his name vide mutation No. 32 dated 14.12.76. The land in question was once again transferred by Birdi Chand through registered sale deed to Shaitan Singh and Ummed Singh (present appellants) on 6.11.78, who too got it mutated to their names vide mutation No. 137 dated 13.2.82. (4). When the judgment dated 26.8.68 & decree dated 31.3.86 were reversed by learned R.A.A., Jaipur by his judgment & decree dated 26.4.94, respondent No.1 filed an application for restitution before learned Assistant Collector-1st, Jaipur who rejected it on 16.10.95. The learned R.A.A., Jaipur accepted the appeal and reversed the judgment dated 16.10.95 on 21.11.96. Hence, this second appeal. (5). Heard learned counsel for the parties and perused the record. (6). The learned counsel for the appellants urged that learned R.A.A. while passing the impugned judgment dated 21.11.96 lost sight of the fact that compromise between the parties to the suit was reached and attested in the year 1968. The judgment was passed on 26.8.68 and the decree framed on 31.3.86. Appellants purchased the land through registered sale deed on 6.11.78 much before the judgment & decree dated 26.4.94 passed by learned R.A.A., Jaipur whereby the judgment dated 26.8.68 & decree dated 31.3.86 were reversed. If the respondents No.1 & 3 had any grievance regarding the land purchased by the appellants, they should have challenged the same in the competent court. (7). While continuing his arguments, the counsel for the appellants further submitted that appeal before learned R.A.A. was time-barred and the judgment & decree dated 26.4.94, the very basis of restitution application, is not final as second appeal is pending before Honble Board of Revenue. In these circumstances, learned R.A.A.s judgment dated 21.11.96 reversing the decision dated 16.10.95 of trial court ordering restitution of possession and entries in the revenue record as it stood prior to the order dated 26.8.68, is against the rules and illegal. He further stated that first appellate court did not pay heed to the factual position that by its judgment dated 26.4.94, learned R.A.A. had rejected the suit pertaining to khasra No. 423 and no change regarding the land of this khasra has yet been made. The sale deed executed in favour of the appellants was in respect of 11 bighas of khasra No. 964 and no relief can be sought regarding this land on the basis of the judgment & decree dated 26.4.94. The sale deed executed in favour of the appellants was in respect of 11 bighas of khasra No. 964 and no relief can be sought regarding this land on the basis of the judgment & decree dated 26.4.94. Moreover, the appellants were not bound by the judgment dated 26.4.94 which was passed behind their back without impleading them as parties in the appeal. (8). On the other hand, learned counsel for the respondents has supported the impugned judgment dated 21.11.96 and has held it to be just & proper. He has submitted that suit filed by Jhuntha-father of respondents No.1 & 3 was pertaining to only khasra No. 423 measuring 2 bighas 3 biswas, whereas the compromise submitted, incorporated 66 bighas 5 biswas land of different khasra numbers, which was not the subject matter of the suit and the order dated 26.8.68 giving 1/4th share in the whole of the land mentioned in the compromise to Nanu Singh was absolutely illegal. Apart from this, Nanu Singh instead of 1/4th share in the total land got 11 bighas land of exclusive khasra No. 964 mutated in his favour vide mutation No. 139 dated 15.10.69 which too was absolutely illegal. Subsequent sales and mutations in favour of the appellants automatically became illegal. Moreover, when order dated 26.8.68 and decree 31.3.86 were reversed by learned R.A.A. vide his judgment & decree dated 26.4.94, the trial court was bound to accept the application for restitution to restore the position as it stood prior to the order dated 26.8.68. Learned R.A.A. had not rejected the suit of Jhuntha as alleged by counsel for appellants, but had reversed the judgment dated 26.8.68 and decree dated 31.3.86 of learned trial court. (9). Counsel for the respondents also contended that learned trial court had no jurisdiction to go behind the judgment & decree dated 26.4.94 passed by learned R.A.A., Jaipur to question its validity & legality and should have simply complied with it. He further argued that when the order dated 26.8.68 & decree dated 31.3.86 were reserved, all the mutations attested on their basis automatically stood cancelled. (10). We have given our conscious consideration to the rival submissions made by the counsel for the parties and gone through the record and relevant legal provisions & references. (11). He further argued that when the order dated 26.8.68 & decree dated 31.3.86 were reserved, all the mutations attested on their basis automatically stood cancelled. (10). We have given our conscious consideration to the rival submissions made by the counsel for the parties and gone through the record and relevant legal provisions & references. (11). A careful study of section 144 CPC reveals that restitution means restoring to a party on the variation or reversal of a decree or order, of what has been lost to him in execution of the decree or order. It is the sacred duty of the State to restitute the property wrongly taken away from law- abiding citizens after the successful party has vindicated its rights. The principle embodied in the doctrine is that on the reversal of a decree in appeal, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. The granting of restitution is not discretionary. The court is bound to place the parties in the position which they would have occupied but for the decree appealed from. In other words, the restitution can be demanded not as a matter of favour but as a matter of right. The wording of section 144 is imperative and the court shall cause restitution to be made where the order has been reversed. (12). It has been held by Honble apex court in AIR 1990 page 1828 that restitution is an inherent power of the court and the so called purchaser cannot oppose restitution application merely on the ground that he had purchased the land prior to finalisation of the decision & decree of the first appellate court. Similarly, the Honble Guwahati High Court has also held in AIR 1980 page 19 that any third party under the pretext of bonafide purchaser cannot resist restitution application. According to law laid down in 1957 RRD page 178 & 1959 RRD page 85, Honble Board of Revenue for Rajasthan has held that restitution can be made even without application under inherent powers. (13). In the present case, the mutations in question were first attested in compliance of the order dated 26.8.68 and decree dated 31.3.86 and thereafter on the basis of subsequent transfers. (13). In the present case, the mutations in question were first attested in compliance of the order dated 26.8.68 and decree dated 31.3.86 and thereafter on the basis of subsequent transfers. When the above mentioned decision and decree of the trial court were reversed by first appellate court, the application under Sec. 144 CPC was bound to be accepted by learned trial court. Instead, learned trial court tried to examine the legality & validity of the judgment & decree dated 26.4.94 of the R.A.A. for which he had no jurisdiction. We, therefore, agree to allow the application of restitution as has been done rightly by the first appellate court vide its decision dated 21.11.96. (14). Under these circumstances and for the reasons indicated above, the second appeal is hereby rejected and the impugned judgment of learned Revenue Appellate Authority, Jaipur dated 21.11.96 is upheld. Pronounced in open court.