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2003 DIGILAW 866 (RAJ)

Bhani Das v. Om Prakash

2003-06-02

A.K.PUROHIT, B.B.MOHANTY

body2003
MOHANTY, Member – Both these appeals have been filed under Section 224 of the Rajasthan Tenancy Act, 1955, (in short ``the Act) against the judgment and decree dated 2.5.2000 passed by learned Revenue Appellate Authority, Bikaner, by which he has dismissed the appeal No. 31/99 and 32/99 filed by the plaintiff-appellant. Since the facts and legal point involved in these two appeals are identical, therefore, these are being disposed of by common judgment copy of which may be retained in each file. (2). Briefly, stated, the facts of the case are that the appellant-plaintiff filed a suit N. 181/75 (new No. 178/97) in the court of Sub-Divisional Officer (North), Bikaner under sections 88, 89 and 91 read with Sections 125 and 136 of Rajasthan Land Revenue Act, 1956 which was dismissed on 31.5.99. An another suit No. 72/96 (new No. 177/97) was filed by the respondent Om Prakash in the court of Sub-Divisional Officer (North), Bikaner under Section 188 of the Act, which was decreed in his favour by the trial courts judgment dated 31.5.99. Aggrieved against this, the appellant filed two separate appeals No. 31/99 and 32/99 before Revenue Appellate Authority, Bikaner which were also dismissed by the impugned judgment. Now these two appeals have been preferred. (3). We have heard counsels for both the parties and perused the record. (4). The counsel for the appellant-plaintiff argued before us that the dispute land bearing khasra No. 31/611 measuring 45 bighas, khasra No. 847/452 measuring 30 bighas and khasra No. 23 measuring 45 bighas total land 120 bighas is in the continuous possession of the plaintiff-appellant since Svt. 2011. He further argued that land in question was allotted to the plaintiff- appellant and a patta was issued in his favour on 8.6.63, but a serious error was committed by the Revenue Officials while fitting new map with the old map and that khasra No. 23 (new No. 387) which has been recorded in the name of the appellant- plaintiff and has been wrongly recorded as siwai chak. The trial court and first appellate court have not appreciated the evidence on record and have wrongly rejected the suit and appeal filed by the appellant. (5). The trial court and first appellate court have not appreciated the evidence on record and have wrongly rejected the suit and appeal filed by the appellant. (5). The counsel for the respondent-defendant Om Prakash argued that the land in question was allotted to Om Prakash and that there is concurrent findings of the facts of the courts below in favour of respondent Om Prakash. Both the lower courts had neither committed any error apparent on the face of record nor is there any legal point for which second appeal is maintainable before the Board. The allotment in favour of Bhani Das was only on temporary cultivation basis for 75 bighas and as per law maximum 45 bighas land can be allotted for temporary cultivation to a particular individual, therefore, the allotment made in favour of Bhani Das was ab-initio void and illegal. In such case, both the lower courts have appreciated the evidence and rightly held that the khatedari rights cannot be conferred nor mutations can be attested in favour of the plaintiff- appellant. Furthermore, the temporary cultivation allotment in favour of Bhani Das was neither been signed by the allotting authority nor there is any seal before the signature. Therefore, this allotment order cannot be said to have been done legally. Any allotment by an allotting authority must bear the signature and seal of the allotting authority in allotment order itself. The counsel for the respondent-defendant Om Prakash argued that the possession of Bhani Das is not proved, therefore, both trial court and the first appellate court have rightly rejected the suit of Bhani Das filed for declaration as well as for permanent injunction. It is argued that the second appellate court has very limited jurisdiction and it can interfere only if there is apparent illegality of record or law or facts. Since the decisions of both the courts below are concurrent, therefore, the scope of second appeal is very limited. (6). We have given our thoughtful consideration to the rival contentions of both the parties. (7). Khasra No. 23 (new Khasra No. 387) measuring 70 bighas which was allotted to Bhani Das on temporary cultivation basis could not have been done as per the provisions of the rules under the Rajasthan Tenancy Act, 1955, therefore, khatedari rights and the mutations attested in favour of Bhani Das was rightly rejected both the trial court and the first appellate court. Bhani Dass possession was not proved except as temporary cultivation allottee, therefore, the trial court and first appellate court having discussed the record and cultivatory possession of both the parties rightly came to the conclusion that the land in question could not be decreed in favour of the plaintiff-appellant. Khasra No. 2018 was recorded as siwai chak, since there was no permanent allotment made in favour of the appellant-plaintiff. The land in question was subsequently allotted to Om Prakash on 11.8.68 and he has been conferred khatedari rights etc. Therefore, the contention that permanent allotment in favour of Om Prakash by the allotting authority does not bear signature or seal of the allotting authority cannot be sustained, because the allotment under the rule is made by a allotment committee of which Sub-Divisional Officer is the Chairman. Since, both the lower courts have examined this point and came to the conclusion that the allotment to the respondent- defendant Om Prakash has been done strictly according to law. Therefore, the plaintiff-appellants case only on the basis of temporary cultivation which again is more than prescribed limit in the temporary cultivation and the suit filed by Bhani Das was rightly rejected and the findings of both the courts below are as per the legal provisions under the rules of Rajasthan Tenancy Act, 1955. There is concurrent findings of fact of both the courts below which do not require any interference. (8). We do not find any substance in these appeals; hence these are hereby dismissed. The judgment and decree passed Revenue Appellate Authority, Bikaner dated 2.5.2002 is hereby maintained. (9). Pronounced in the open court.