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2003 DIGILAW 128 (RAJ)

Tahal Singh v. Board of Revenue

2003-01-28

SUNIL KUMAR GARG

body2003
Honble GARG, J.–This writ petition under Article 226/227 of the Constitution of India has been filed by the petitioner against the respondents on 29.7.91 with a prayer that impugned judgment dtd. 17.2.88 (Annex. 7) passed by the Assistant Collector, Suratgarh (respondent No.3 by which the suit filed by petitioner Tahal Singh under Section 183 of the Rajasthan Tenancy Act, 1955 against the respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) was dismissed, judgment dtd. 8.5.91 (Annex. 8) passed by the Revenue Appellate Authority, Ajmer (respondent No.2) by which the judgment dtd. 17.2.88 (Annex. 7) passed by the Assistant Collector, Suratgarh (respondent No.3) was affirmed and the judgment dtd. 10.7.91 (Annex. 9) passed by the Board of Revenue (respondent No.1) by which the Board of Revenue upheld the judgment dtd. 8.5.91 (Annex. 8) passed by the Revenue Appellate Authority, Ajmer (respondent No.2) be quashed and set aside and the respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) be declared trespassers over the land in question. Note : It may be stated here that during pendency of writ petition, the petitioner Tahal Singh died and therefore, his legal representative Kalu Singh was brought on record. (2). The facts as put forward by the petitioner are as under : (i) That 27 bighas of land situated in Chak No. 1 FDM in square No. 80/336, Killa No. 24, 25, Square No. 80/337 Killa No. 3 to 6 and square No. 80/337 Killa No. 1-3, 7-25 was in the possession of Tahal Singh (original petitioner) on temporary cultivation basis from samvat year 2017 (year 1972) and this land was later on allotted to Tahal Singh (original petitioner) on permanent basis by the Assistant Commissioner, RCP, Rai Singhnagar camp Suratgarh vide allotment letter dtd. 19.12.83 (Annex. 1). (ii) That out of 27 bighas of land, the respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) were interfering in the possession of the petitioner over the land situated in Square No. 80/377 Killa No. 7 and 8, measuring 2 bighas, Killa No. 13 to 19 measuring 7 bighas and Killa No. 20 measuring 10 biswas and Killa No. 22 measuring 10 biswas total measuring 10 bighas and 1 biswas. Tahal Singh (original petitioner) therefore, moved an application before the Dy. Collector, RCP now IGNP and Deputy Collector vide his order dtd. 2.3.84 ordered the SHO to take possession of the same. Tahal Singh (original petitioner) therefore, moved an application before the Dy. Collector, RCP now IGNP and Deputy Collector vide his order dtd. 2.3.84 ordered the SHO to take possession of the same. (iii) Further case of the petitioner is that on 14.8.84, respondents No. 4 (Pahalwan Singh) and 5 (Avtar Singh) with the help of some other persons took forcible possession of above 10 bighas and 1 biswas of land situated in Chak No. 1 FDM from Tahal Singh (Original petitioner). (iv) That further case of the petitioner is that in respect of above land measuring 10 bighas and 1 biswas, Tahal Singh (original petitioner) filed a suit on 25.8.84 (Annex. 2A) under Section 183 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act of 1955) against the respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) in the Court of Assistant Collector, Suratgarh (respondent No. 3). (v) That reply (Annex. 4) to the suit was filed by the respondent No.4 (Pahalwan Singh) and 5 (Avtar Singh) on 29.5.85. On behalf of Tahal Singh (original petitioner) Uda Ram, Halka Patwari was examined before the Assistant Collector, Suratgarh (respondent No.3). Copy of statement of Halka Patwari is marked as Annexc. 5. (vi) That the Assistant Collector (respondent No. 3) vide his judgment dtd. 17.2.88 (Annex. 7) dismissed the suit filed by Tahal Singh. (vii) That being aggrieved by the judgment dtd. 17.2.88 (Annex. 7) passed by the Assistant Collector, Suratgarh (respondent No.3), the deceased preferred an appeal before the Revenue Appellate Authority, Bikaner. However, on the applicable of respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) in the Board of Revenue, this appeal filed by the deceased was transferred to the Revenue Appellate Authority, Ajmer (respondent No.2). (viii) That the Revenue Appellate Authority. Ajmer (respondent No.2 vide its judgment dtd. 8.5.91 (Annex. 8) dismissed the appeal filed by Tahal Singh (Original petitioner) and affirmed the judgment dtd. 17.2.88 (Annex. 7) passed by the Assistant Collector, Suratgarh (respondent No. 3). (ix) That being aggrieved by the judgment dtd. 8.5.91 (Annex. 8) passed by the Revenue Appellate Authority (respondent No.2), Tahal Singh (original petitioner) filed second appeal before the Board of Revenue (respondent No.1) and the Board of Revenue vide its judgment dtd. 10.7.91 (Annex. 9) dismissed the second appeal filed by Tahal Singh (original petitioner) and affirmed the judgment dtd. 8.5.91 (Annex. 8.5.91 (Annex. 8) passed by the Revenue Appellate Authority (respondent No.2), Tahal Singh (original petitioner) filed second appeal before the Board of Revenue (respondent No.1) and the Board of Revenue vide its judgment dtd. 10.7.91 (Annex. 9) dismissed the second appeal filed by Tahal Singh (original petitioner) and affirmed the judgment dtd. 8.5.91 (Annex. 8) passed by the Revenue Appellate Authority, Ajmer (respondent No.2). Hence, this writ petition with the abovementioned prayer. (3). In this writ petition the following submissions have been raised by the learned counsel for the petitioner : (i) That the judgment dtd. 10.7.91 (Annex. 9) passed by the Board of Revenue is palpably wrong as it was mainly based on the statement of Tahal Singh (original petitioner) given before the Assistant Colonisation Commissioner, Suratgarh (respondent No.3). (ii) That the respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) were not related to Tahal Singh and therefore, the findings recorded by the courts below in favour of the respondent No.4 (Pahalwan Singh) and 5 (Avtar Singh) and against Tahal Singh (Original petitioner) are perverse and should be set aside. (iii) That since the complaint was filed by respondent No.4 (Pahalwan Singh) and the same was dismissed by the Assistant Colonisation Commissioner, RCP, Suratgarh (respondent No. 3) vide order dtd. 24.10.85 (Annex. 11), from this point of view also, no case in favour of the respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) was made out and therefore, the findings recorded b the courts below are erroneous one and should be set aside. (4). On the other hand the learned counsel for the respondents have supported the judgments passed by the courts below and have further submitted that under Article 227 of the Constitution of India, the findings of facts recorded by the courts below should not be interfered by this Court and thus from this point of view, the writ petition should be dismissed. (5). Heard and perused the material available on record. (6). There is no dispute on the point that the land measuring 27 bighas was allotted to Tahal Singh (original petitioner) through allotment letter dtd. 19.12.83 (Annex. 1). There is also no dispute on the point that out of that land, 10 bighas and 1 biswa of land was in the possession of respondent No.4 (Pahalwan Singh) and respondent No.5 (Avtar Singh). 19.12.83 (Annex. 1). There is also no dispute on the point that out of that land, 10 bighas and 1 biswa of land was in the possession of respondent No.4 (Pahalwan Singh) and respondent No.5 (Avtar Singh). There is also no dispute on the point that Tahal Singh (Original petitioner) filed a suit under Section 183 of the Act of 1955. There is also no dispute on the point that the suit of Tahal Singh (original petitioner) was dismissed vide judgment dtd. 17.2.88 (Annex. 7) by the Assistant Collector, Suratgarh (respondent No.3). While decideding the suit filed by Tahal Singh (Original petitioner) Assistant Collector, Suratgarh (respondent No.3) framed as many as 6 issues. (7). Issue No. 6 framed by the Assistant Collector, Suratgarh (respondent No.3) was whether Tahal Singh (original petitioner) was tenant over the disputed land or not. (8). On issue No. 6, the findings recorded by the Assistant Collector, Suratgarh (respondent No.3) may be summarised as follows : (i) That on behalf of the deceased only allotment letter dtd. 19.12.83 (Annex. 1) was produced and apart from this no evidence was led. On the contrary, the respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) produced revenue receipts by which the revenue was paid and further more the receipts by which water charges were paid for cultivation on the disputed land were also produced. Thus, since the charges pertaining to water and revenue were being paid by respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh), therefore, by this fact, the possession of respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) was found over the disputed land. (ii) Mere statement of patwari in absence of documentary evidence was not found favourable by the Assistant Collector, Suratgarh (respondent No.3). (iii) That there was statement of the Tahal Singh (Original petitioner) himself which was marked as Ex.D/1 and in that statement Tahal Singh (original petitioner) admitted the fact that the land was allotted to him, but he was cultivating only 1/2 portion of the land allotted to him and over other 1/2 portion of the land his brothers and their sons were cultivating. Thus, from this fact, the learned Assistant Collector came to the conclusion that the possession over the disputed land was of respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) since long. Thus, from this fact, the learned Assistant Collector came to the conclusion that the possession over the disputed land was of respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) since long. Thus, issue No.6 was decided against Tahal Singh (original petitioner) and in favour of respondents No.4 (Pahalwan Singh) and 5 (Tahal Singh). (9). Similarly issues No.2 was also decided against Tahal Singh (Original petitioner). While deciding issue No.3, the learned Assistant Collector came to the conclusion that over disputed land measuring 10 bighas and 1 biswa, possession of the original petitioner (Tahal Singh) was never found and, therefore, he came to the conclusion that the case of Tahal Singh that respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) forcibly dispossessed Tahal Singh (original petitioner) was not found proved and further on issue No.1, the Assistant Collector came to the conclusion that over disputed land joint possession of Tahal Singh (original petitioner) and respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) was found and further the Assistant Collector came to the conclusion that simply because Tahal Singh was having title over the land, the suit filed under Section 183 of the Act of 1955 could not be decreed and the suit was dismissed. Findings of Revenue Appellate Authority (10). That Tahal Singh (original petitioner) filed appeal before the Revenue Appellate Authority and the same was dismissed by judgment dtd. 8.5.91 (Annex. 8) and the findings recorded by the Assistant Collector (respondent No.3) vide judgment dtd. 17.2.88 (Annex. 7 were affirmed. Further more, the Revenue Appellate Authority observed that before decreeing the suit under Section 183 of the Act of 1955, findings to the effect that the respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) were trespassers must be there and since this fact was not proved by Tahal Singh (Original petitioner), therefore, the suit of Tahal Singh (original petitioner) was rightly dismissed vide judgment dt. 17.2.88 (Annex. 7) by the Assistant Collector (respondent No.3) and in no manner, the possession of respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) could be treated/termed as that of trespassers. Findings of Board of Revenue (11). The learned Board of Revenue dismissed the second appeal filed by Tahal Singh vide judgment dtd. 10.7.91 (Annex. 9) and affirmed the findings recorded by the courts below. On the Point of Applicability and Scope of Article 227 of ohe Constitution of India (12). Findings of Board of Revenue (11). The learned Board of Revenue dismissed the second appeal filed by Tahal Singh vide judgment dtd. 10.7.91 (Annex. 9) and affirmed the findings recorded by the courts below. On the Point of Applicability and Scope of Article 227 of ohe Constitution of India (12). It is well established that it is only when an order of a tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution of India. (13). The power of general superintendence conferred by Article 227 involves a duty on the part of the High Court to keep all courts and tribunals within its territorial jurisdiction within the bounds of their authority, to see that they do what their duty requires and they do it in a legal manner. This means that the High Court can interfere in cases of- (a) Erroneous assumption or excess of jurisdiction. (b) Refusal to exercise jurisdiction. (c) Error of law apparent on the face of the record, as distinguished from a mere mistake of law or error of law relating to jurisdiction. (d) Violation of principles of natural justice. (e) Arbitrary or capricious exercise of authority, or discretion. (f) Arriving at a finding which is perverse or based on no material. (14). Under Art. 227, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior Court or Tribunal, unless its finding or order is clearly perverse or patently unreasonable. (15). So far as present case is concerned, the findings of facts recorded by the courts below are based on correct appreciation of law and facts. From perusing the findings recorded by the Courts below, it does not appear that there is patent irregularity or error of law apparent on the face of record and the findings recorded by the courts below do not require any interference by this Court under Article 227 of the Constitution of India. (16). Further more, after perusing the judgment dtd. 17.2.88 (Annex. 7) passed by the Assistant Collector (respondent No.3) and the judgment dtd. 8.5.91 (Annex. (16). Further more, after perusing the judgment dtd. 17.2.88 (Annex. 7) passed by the Assistant Collector (respondent No.3) and the judgment dtd. 8.5.91 (Annex. 8) passed by the Revenue Appellate Authority (respondent No.2), it clearly appears that both the courts have recorded a clear finding of fact that the disputed land measuring 10 bighas and 1 biswa was in the possession of respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) since long and merely because portion of disputed land was in the allotment of Tahal Singh (original petitioner) it would not make out a case for decreeing the suit in favour of Tahal Singh (original petitioner) under Section 183 of the Act of 1955 in as much as the possession of respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) could not be termed as that of trespassers. (17). In this respect, it may further be stated here that Section 183 of the Act of 1955 deals with ejectment of trespassers who occupy a land without consent of the land holder. In this case since there is statement of Tahal Singh (original petitioner) that the disputed land was being cultivated by respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh), therefore, the findings recorded by the courts below that they were not trespassers are liable to be confirmed one. (18). So far as argument that since the complaint of respondent No.4 (Pahalwan Singh) was dismissed through order dtd. 24.10.85 (Annex. 11) passed by the Assistant Colonisation Commissioner, the suit of Tahal Singh (original petitioner) should have been decreed, carries no weight as by that order only the complaint was dismissed. Therefore, by mere dismissal of complaint, it cannot be inferred that respondents No.4 (Pahalwan Singh) and 5 (Avtar Singh) were trespassers. Hence, the order dtd. 24.10.85 (Annex. 11) would not be helpful to the learned counsel for the petitioner. (19). For the reasons mentioned above, the impugned judgment dtd. 17.2.88 (Annex. 7) passed by the Assistant Collector (respondent No.3), judgment dtd. 8.5.91 (Annex. 8) passed by the Revenue Appellate Authority, Ajmer (respondent No.2) and the judgment dtd. 10.7.91 (Annex. 9) passed by the Board of Revenue (respondent No.1) do not require and interference by this Court and this writ petition deserves to be dismissed. Accordingly, this writ petition is dismissed. Cost made easy.