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2004 DIGILAW 147 (RAJ)

Nathi v. B. O. R.

2004-01-29

RAJESH BALIA

body2004
Honble BALIA, J.–Heard learned counsel for the parties. (2). These two writ petitions arise out of the same proceedings challenging the order of the Board of Revenue dated 28th Dec., 1984. (3). Genesis of the present petition is that a revenue suit was filed by Soniya S/o Gyarsilal since deceased, and now represented by his legal representatives, the petitioners in Civil Writ Petition No. 301/1985, on 4.8.1955 for declaration of khatedari rights and permanent injunction for restraining defendant Bhairu S/o Birda, and Bhairu S/o Govinda, and also for declaration of plaintiffs possession in respect of lands comprised in khasra No. 1 and khasra Nos. 683, 684, 685, 686, 687 and 688 situated in village Gaitor in Tehsil Sanganer of Jaipur District. According to the plaint, plaintiff Soniya was a khatedar tenant of the land in question and was culti-vating the land year after year. It was further alleged that the defendants are trying to interfere with the possession and cultivation of plaintiff Soniya. (4). Written statement was filed on behalf of the defendants denying the claim of the plaintiff. It was pleaded in additional pleas that Bhairu S/o Birda is the khatedar tenant of Khasra No. 1, 683, 685 and Bhairu S/o Govinda is khatedar tenant of khasra No. 686 and 688. Kothi No. 684 and 687 were alleged to be belonging to defendants. It was also stated in the written statement that khasra No. 1, 683, 685 were mortgaged by Bheru S/o Birda and his son Ramsahai with Shivnath S/o Shivbux Karol in the year Samvat 2007 (i.e. year 1950 AD) for 5 years and the mortgagee gave Khasra No. 683 & 685 on Ijara to Chander and Khasra No. 1 to Soniya & Bhima. After the expiry of the period of Ijara the land was handed over back to Shivnath Karol, the mortgagee. On redemption of mortgage, the land had been handed over to the mortgagor holder and since Samvat Year 2012, the said lands have been in possession of Bheru S/o Birda. It was also specifically averred in the written statement that khasra No. 683 and 685 were being cultivated by Chanda even after redemption of mortgage, Chanda continued to cultivate the land to which the defendants have not objected to and about which the plaintiff has no right to claim any relief. (5). About Khasra Nos. It was also specifically averred in the written statement that khasra No. 683 and 685 were being cultivated by Chanda even after redemption of mortgage, Chanda continued to cultivate the land to which the defendants have not objected to and about which the plaintiff has no right to claim any relief. (5). About Khasra Nos. 686 and 688, it was pleaded that this was mortgaged by Govinda, father of defendant No. 2, with Shivnath Karol, and the said lands were given by Shivnath to Soniya on Ijara for five years and that land was also returned to Shivnath Karol on expiry of period of Ijara and on redemption of mortgage the land was handed over back to mortgagor who is in possession of the land in question. It was also pleaded in the additional pleas in the written statement that Govinda that original mortgagor of the land in question was still alive and he has not been impleaded as party defendant in the suit, therefore, the suit must fail in the absence of necessary party. (6). It was also pleaded that the plaintiff was not in possession of any of the lands in question. Hence, suit for mere declaration without claiming possession suit is not maintainable. (7). The learned Assistant Collector vide his order 31/03/1978 dismissed the plaintiffs suit. (8). It was held by the learned Assistant Collector that no proof has been led to suggest that the plaintiff is in possession over the land in question. Plea of mortgage of the land in question in favour of Shivnath Karol was also found to be proved from documentary evidence as well as from the statement of plaintiffs wife Mst. Nathi Plaintiff Soniya had died during the pendency of the suit. (9). The Revenue Appellate Authority vide its judgment dated 3/05/1982 dismissed the appeal filed by legal representatives of Soniya who has died during the pendency of the suit. (10). This led to filing of the second appeal before the Board of Revenue. A Division Bench of the Board of Revenue vide its judgment under challenge partly allowed that second appeal in respect of Khasra No. 686 and 688 and declared the plaintiffs suit for the two khasras. (11). (10). This led to filing of the second appeal before the Board of Revenue. A Division Bench of the Board of Revenue vide its judgment under challenge partly allowed that second appeal in respect of Khasra No. 686 and 688 and declared the plaintiffs suit for the two khasras. (11). The Board of Revenue found that so far as khasra No. 1 is concerned, it is a Well, which was not in use since before 1956 and cannot be said to be in cultivatory possession of the plaintiff at any time. So far as khasra Nos. 683, 684, 685 and 687 were concerned, the plaintiff has failed to prove cultivatory possession over the land in question. According to the material available on record till Samvat Year 2012 the lands of khasra No. 683, 684, 685 and 687 were given to Chandra by the mortgagee Shivnath Karol on Ijara and not to Soniya. Even according to the khasra Girdawari of Samvat Year 2011, it did not show Soniya to be in possession of the said lands and, therefore, Soniya could not acquire any right in the said land. Chandra had been in possession in respect of the said land and in the suit filed by Soniya determination of Chandras right, if any cannot be adjudicated. Thus, the suit relating to khasra No. 1, 683, 684, 685 and 687 must fail. (12). About khasra No. 1, it was found that the land was held jointly by Soniya, and Bheema. Bheema was not made party for claiming the declaration of joint tenancy in favour of both, hence no decree could be passed in favour of plaintiff, the suit in respect of khasra Nos. 683, 684, 685 and 687 was dismissed because the plaintiff has failed to prove that he was khatedar tenant of mortgagee Shivnath in respect of the said land or was in possession of said land at any time. (13). However, in respect of khasra Nos. 686 and 688 the Board of Revenue found that the plaintiff Soniya was tenant from the mortgagee Shivnath in respect of two khasra numbers and he was in possession of the land in question also and consequently he became tenant under Jaipur. Tenancy Act. (13). However, in respect of khasra Nos. 686 and 688 the Board of Revenue found that the plaintiff Soniya was tenant from the mortgagee Shivnath in respect of two khasra numbers and he was in possession of the land in question also and consequently he became tenant under Jaipur. Tenancy Act. Consequently modifying the decree lower Court passed a decree in favour of the legal representatives of plaintiff in respect of khasra No. 686 and 688 only declaring the plaintiff as khatedar tenant of khasra No. 686 and 688 measuring two bighas and two biswas and 1 bigha and 17 biswas respectively. (14). Aggrieved with the aforesaid judgment, the legal representatives Soniya as well as Bheru S/o Govinda filed these two writ petitions challenging the finding of the Board of Revenue to the extent it held against them. (15). The writ petition No. 301/85 has been filed by the legal representatives of Soniya Smt. Nathi and others challenging the order of Board to the extent it dismissed the suit relating to lands of Bheru S/o Birda, and writ petition No. 1105/85 has been filed by Bhairu S/o Govinda to the extent the Board of Revenue has decreed the suit of plaintiff Soniya in respect of khasra No. 686 and 688. In the writ petition filed by Bhairu S/o Govinda, legal representatives of Bheru S/o Birda since deceased has been impleaded as non-petitioners along with other parties. S.B. Civil Writ Petition No. 301/1985 (16). So far as writ petition No. 301/85 filed by legal representative Soniya is concerned, the Board of Revenue in concurrence with two Revenue Courts below has recorded a finding of fact that in respect of land khasra Nos. 683, 684, 685, 687 Soniya was not in cultivatory possession at any time and nor he was tenant of the mortgagee Shivnath, who has let out these lands to Chandra S/o Narayan and there being no claim laid by Chandra S/o Narayan in these proceedings, no decree can be passed in favour of Soniya in respect of land comprised in khasra Nos. 683, 684, 685 and 687. About khasra No. 1, the suit was dismissed by holding that suit suffered from non-joinder of necessary party as well as possession of Soniya not proved. (17). 683, 684, 685 and 687. About khasra No. 1, the suit was dismissed by holding that suit suffered from non-joinder of necessary party as well as possession of Soniya not proved. (17). The finding about original tenancy in favour of Bheru S/o Birda and Govind father of Bheru defendant No. 2, and the mortgage of property by respective tenants in favour of Shiv Nath Karol were not challenged. But the finding about handing over the possession for five years under Ijara by Shivnath Karol as pleaded by the defendants was challenged. (18). Faced with these obvious findings of fact, an attempt was made by the learned counsel to urge that Soniya has filed a suit in his capacity as Karta to Joint Hindu Family and said Chandra was one of the members of his family, hence suit must not fail on that ground. (19). This contention of Mr. Pareek cannot be accepted in view of plaint (Annex.2 with the writ petition) which nowhere makes even a whisper that Soniya has lodged the claim as a Karta of Joint Hindu Family, of which Chandra is also member. On the other hand perusal of plaint goes to show that he has filed the suit in his personal capacity as a khatedar of all lands on the basis of his long cultivatory possession. It has not even been stated in the plaint that the land in question was being cultivated by him since the time of his ancestors. Thus, this plea about holdings being ancestral and plaintiff karta of Hindu Undivided Family raise new question of fact which have to been subject matter of plea or contention at any time between the parties until before hearing of this petition. It being question of fact which has not been subject matter of pleading, issue or enquiry at any time until before hearing of this petition cannot be entertained. (20). It cannot be doubted that in view of the categorical finding the Board of Revenue which learned counsel for the petitioner has not challenged that plaintiff was not in possession of the land but one Chandra was the persons inducted in the tenant land in question his suit in respect of khasra No. 683, 684, 685 and 687 must failed and has rightly been dismissed by the Revenue Authorities. (21). (21). No contention was raised to challenge dismissal of suit in respect of Khasra No. 1, the well. (22). Thus petition No. 301/1985 must fail. S.B. Civil Writ Petition No. 1105/1985 (23). Coming to the writ petition No. 1105/1985 filed by Bairu S/o Govinda. The decree has been passed by the Board of Revenue in favour of the plaintiffs legal representatives by upsetting the finding of fact arrived at by two Courts below about the possession of the plaintiff as on the date of filing of the suit. Suit was filed on 22.8.1955 which fell within Samvat year 2012 about which there is no dispute and is relating to khasra No. 686 and 688. (24). The plaintiff-respondent has laid his claim on the basis of his long possession since 1945. Under the provisions of Jaipur Tenancy Act, 1945 he claimed relief alleging the plaintiff was in cultivatory possession and the defendants are trying to interfere with his cultivatory possession. He has not even alleged that he is in possession of the land in question as a tenant from the State or from anyone else. So far as the case pleaded by plaintiff in the plaint is concerned, none of the Courts have found that the plaintiff has been able to prove his possession before commencement of Jaipur Tenancy Act and he became tenant in respect of that land on the commencement of Jaipur Tenancy Act. Therefore, on the basis of plaint alone, the plaintiffs suit deserved to be dismissed in toto. (25). As a matter of fact, it was for the plaintiffs to have proved the case pleaded by him. (26). No amount of evidence can be looked into in the absence of any pleading to set up any right in the land. A party is expected and is bound to prove the case as alleged by him and as covered by the issues framed. This is in accordance with principle that a party can only succeed according to what was alleged and proved. He will not be allowed to succeed in a case not set up by him. (27). In this connection, reference may be made to some decisions. In Sidik Mohammed Shah vs. Mt. Saran & Ors. This is in accordance with principle that a party can only succeed according to what was alleged and proved. He will not be allowed to succeed in a case not set up by him. (27). In this connection, reference may be made to some decisions. In Sidik Mohammed Shah vs. Mt. Saran & Ors. (1), the Board approved that :- ``Where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward. (28). In Sheodhari Rai & Ors. vs. Prasad Singh & Ors. (2), the Apex Court opined the following principles:- ``Where the defendant in his written statement sets up title to the disputed lands as the nearest reversioner, the Court cannot, on failure of the defendant to prove his case, make out a new case for him which is not only not made in the written statement but which is wholly inconsistent with the title set up by the defendant, namely, that the defendant was holding under a shikmi settlement from the nearest reversioner. (29). In Moran Mar Basselios Catholicos vs. Thukalan Paulo Avira & Ors. (3), the Court held that :- ``On the pleadings as they stand and on the issues as they have been framed, it is now impossible to permit the plaintiff- respondent to go outside the pleadings and set up a new case that the supremacy of the Patriarch has been taken away by the mere fact of the adoption of the new constitution (Ex.A.M.) or by any particular clause thereof other than those relating to matters specifically referred to in the pleadings. The issues cannot be permitted to be stretched to cover matters which are not, on a reasonable construction, within the pleadings on which they were rounded. (30). In The Central Bank of India Ltd. vs. Hari Prasad Jalan & Ors. (4), the Court observed that :- ``We are unable to comprehend how the High Court, in the absence of any plea or issue, examined the question whether the goods of the value of Rs. 1,04,840/- which are stated to have been damaged by floods remained with the Bank and were not delivered to the defendants. (31). (4), the Court observed that :- ``We are unable to comprehend how the High Court, in the absence of any plea or issue, examined the question whether the goods of the value of Rs. 1,04,840/- which are stated to have been damaged by floods remained with the Bank and were not delivered to the defendants. (31). While plaintiff has failed to prove the case set up by him is his plaint, he did not, after written statement, either amended the plaint or file a rejoinder to set up a plea of becoming a tenant of mortgagee as against the plea of the defendants that he was let in the lands as ijaredar of mortgagee, nor any issue was joined whether plaintiff became a tenant (as distinguished from Ijaredar) of mortgagee Shivnath Karol and consequently became khatedar on commencement of ``Rajasthan Tenancy Act. Therefore, no claim could be decreed on that basis. (32). The contention that remains is that notwithstanding an alternative case was not set by plaintiff, still the same can be decreed if defendant admits facts on the basis of which relief on alternative ground can be granted even if relief on such alternative ground is not claimed by the plaintiff. This is on the principle that facts admitted by the defendants are not required to be proved by leading evidence. (33). In this connection reference may be made to the principle approved by the Supreme Court in Firm Sriniwas Ram Kumar vs. Mahabir Prasad & Ors. (5), wherein in a suit for specific performance of a contract, in part performance of which the plaintiff alleged to have paid some money to the defendant, the defendant had denied the existence of such contract but took the plea in defence that he took the money as loan. The Apex Court held that on failure of plaintiff to prove contract, the Court may still grant a decree for recovery of money on admission of defendant even though no alternative claim was made by the plaintiff. The Court said that :- ``The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleadings & which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. cannot grant relief to the pltf. on a case for which there was no foundation in the pleadings & which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the defts own plea cannot possible be regarded with surprise by the later and no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. (34). The defendants in their written statement had pleaded that Govind father of Bhairu defendants No. 2 had mortgaged khasra No. 686 and 688 with Shivlal (sic `Shivnath ?) Karol. Said mortgagee had given the land as `ijara for five years to plaintiff. On expiry of five years of ijara, plaintiff returned the land to mortgagee who in turn on redemption handed over the possession to defendant Bhairu. (35). Contention was raised before the Board on the basis of these pleadings the because plaintiff was in possession of the land as a tenant of mortgagee, he became a tenant. (36). A specific plea was also taken in a written statement that the plaintiff was not in possession as on the date of filing of the suit, therefore, his suit for mere declaration and injunction would not be maintainable without making any prayer for possession. (37). It is in this context that the question of possession as on the date of filing of the suit also become relevant. It is to be noted that no such admission was made by defendant in present case that plaintiff was tenant of mortgagee. Nor the possession of defendant on the land was admitted. (37). It is in this context that the question of possession as on the date of filing of the suit also become relevant. It is to be noted that no such admission was made by defendant in present case that plaintiff was tenant of mortgagee. Nor the possession of defendant on the land was admitted. Thus, there is no admission of such facts made by the defendants, on which relief on the alternative ground, now sought to be raised, could be granted unless evidence was led to the effect that plaintiff was put in possession of land by mortgagee not as ijaredar but as tenant and that though he has not proved, his possession over the land in question since before 1945 as pleaded by him to acquire tenancy rights under Jaipur Tenancy Act, 1945 on its commencement, he entered the possession later on any other date as tenant of mortgagee of defendant and was still in possession of land on the date date of filing of suit, so as to maintain a suit for declaration without claiming possession and acquire tenancy rights on commencement of Rajasthan Tenancy Act, 1955. (38). In the absence of any such admission of the facts necessary to found relief on alternative claims merely on the basis of some facts, existence of other facts necessary to found such claim, cannot be assumed to exist without requirement of leading evidence to prove such fact on which alternative ground can be substantiated. Hence, the principle that no amount of evidence can be looked into without pleadings and issue governs the case at hand. (39). One of the principle for relying and acting on the admission contained in pleadings is that such admissions cannot be dissected. For the purpose of acting upon it, such admissions are either to be accepted as a whole or be rejected as a whole. It is not open to accept only the part of admission made in pleadings and to reject other part of it. (40). On that principle if the admitted case of the defendant is taken then it must be accepted that the plaintiff was inducted as Ijaredar in respect of two khasras numbers in question by mortgagee Shivnath Karol and the possession was returned to Shiv Ram Karol on expiry of period of ijara by the ijaredar. (40). On that principle if the admitted case of the defendant is taken then it must be accepted that the plaintiff was inducted as Ijaredar in respect of two khasras numbers in question by mortgagee Shivnath Karol and the possession was returned to Shiv Ram Karol on expiry of period of ijara by the ijaredar. The mortgagee then returned the possession of the land of defendant on redemption of mortgage, and the plaintiff was not in possession of the suit land. (41). There was prohibition under the Jaipur Tenancy Act as well as Rajasthan Tenancy Act to recognise the Ijaredar as a tenant, is not in doubt or matter of contention, as an ijaredar under both the Acts is assigned special meaning and contain specific provisions to exclude an Ijaredar from the definition of tenant. (42). Even otherwise on the basis of material available on record, the Trial Court opined that the plaintiff has not led any evidence whether he was inducted as a tenant by the mortgagee of the land in question nor there is any evidence on the basis of which the plaintiff could be considered to be in possession of any part of the land on the date of suit in respect of which he has claimed decree in his favour. The relevant date purpose was 9.8.1995 which fall in Samvat Year 2012. The learned Trial Judge has referred to khasra Girdawari for Samvat Year 2012 in which the cultivation is entered in the name of defendant No. 2, the present petitioner. (43). On appeal by the plaintiff, the Revenue Appellate Authority which is the final fact finding authority came to the positive conclusion that in Samvat Year 2012 and 2013 the cultivation was made by Ramsahai S/o Bheru (defendant No. 2) and affirmed the finding of the Trial Court based on the record and as per the Commissioners report and as per statement of Mst. Nathi that the land in question was in cultivation of Ramsahai son of one of the defendants. In view of this conclusion, the finding of the Trial Court was affirmed that on the date of filing of the suit the plaintiff was not in possession of any of the suit land. Therefore, he could not maintain the suit simplicitor for declaration of his title. (44). In view of this conclusion, the finding of the Trial Court was affirmed that on the date of filing of the suit the plaintiff was not in possession of any of the suit land. Therefore, he could not maintain the suit simplicitor for declaration of his title. (44). As against this the Board of Revenue has upset this findings of fact by reasoning that Ex.B8 and B9, which are the inspection reports, are not properly interpreted by the Lower Courts. (45). It may be observed that the said inspection reports are not substantive piece of evidence. It can be used for appreciating the evidence available on record. The Board of Revenue in second appeal is not to disturb findings of fact by itself reappreciating the evidence. The Board has transgressed is jurisdiction in reappreciating the evidence and substituting its own finding of fact without there being any ground made out which could vitiate the findings of fact recorded by Courts below so as to lose their binding force on second appellate Court. (46). Apart from patent misdirection about the finding reached by two Courts below and reappreciating the evidence about the possession of plaintiff Soniya of Khasra Nos. 686 and 688, the finding recorded by the Board also does not reach the finding that the plaintiff was not in possession of the land in question upto the date of filing the suit. The material on which reliance is placed by the Board of Revenue is of Khasra Girdawari of 2011, which is not relevant to reach a finding about possession of land in question in Samvat Year 2012 at all. Record of Samvat 2012 was on record and relied on by the two Courts below which has been totally ignored by the Board. (47). Thus, perusal of the record of a date prior to relevant date by ignoring the record relating to relevant date on the finding of Board stand vitiated and cannot bind this Court. (48). In fact in the facts and circumstances noticed above the Board fell in an apparent error by augmenting itself the jurisdiction to reappreciate the evidence in second appeal when the finding of two Courts below did not stand vitiated giving rise to a question of law, which alone could enable the Board in second appeal to reach a finding of fact of its own different from the one reached by Court below. The relevant day is the date of filing of the suit to which finding about possession of the plaintiff was required to be reached. The possession of plaintiff of any prior date is irrelevant when the evidence about possession on the date of suit was positively against plaintiff and which was relied on by both the Courts below. For this reason also, the decree passed by the Board cannot be sustained. (49). In the aforesaid circumstances, the judgment of the Board of Revenue suffers from manifest errors apparent on the face of record and cannot be sustained in respect of Khasra No. 686 and 688. (50). Therefore, the writ petition No. 1105/85 is allowed. The judgment of Board of Revenue to the extent it decreed the suit of plaintiff in the respect of khasra Nos. 686 and 688 is set aside and the decree passed by the Trial Court dismissing the suit of the plaintiff in toto and as affirmed by the Revenue Appellate Authority is restored. (51). The petition No. 1105/85 is, therefore, allowed as aforesaid. (52). There shall be no orders as to costs in both petitions.