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2004 DIGILAW 567 (RAJ)

State of Rajasthan v. Habat Singh

2004-04-12

O.P.BISHNOI, RAJESH BALIA

body2004
JUDGMENT 1. Respondent No. 1 to 5 have been served. Respondent No. 6 who 1 was also respondent in the writ petition is reported to have died. This appeal is by the State against the order of learned Single Judge dated 20.2.2003. The writ petition filed by respondent Nos. 1 to 3 has been allowed. Respondent No. 6 was also one of the non-petitioner. He had not put in appearance despite service. Neither any appeal has been filed by respondents No. 4 and 5 who are also the sons of Padma and brothers of Chhoga. Padma is alleged to be original challenger to title of respondent No. 1 to 3. In the facts and circumstances of the case, for the purpose of this appeal, service of respondent No. 6 is not essential and is hereby dispensed with. to 2. This appeal is barred by 180 days. The application under section 5 of the Limitation Act has been moved. We have perused the application filed under section 5 of the Limitation Act. The application does not show any sufficient cause which prevented the appellant from filing the appeal within limitation. Hence this application deserved to be dismissed. 3. We also examined the appeal on merits. 4. The respondents Nos. 1 to 3 in response to the notice of eviction under section 175 of the Rajasthan Tenancy Act came out with the plea that they were in possession of land in question since before December 2001 and became Khatedar Tenants by operation of law on coming into force of Rajasthan Tenancy Act, 1955. However at the time of settlement, wrong entry of possession was made, about which they were , not aware about receiving notice of proceedings under section 175 of the Rajasthan Tenancy Act. 5. In the said proceedings, initially the Asstt. Collector, Jalore passed the order against respondent Nos. 1 to 3 vide order dated 30.4.1976, against 25 Which two separate appeals were preferred. The said appeals were allowed by Revenue Appellate Authority vide his order dated 3.3.1979 by holding that they were in possession of land in question since 16 to 17 years and also observed that for initiation of proceedings under section 175 of the Tenancy Act, limitation for proceedings under section 175 of the Act is 12 years and, therefore, 30 proceedings were barred by time. However, it was left free for recorded Khetedars to file regular suit by settling their title and for getting decree of possession. This order was made on 3.3.1979. The revision against the order was also dismissed by Board of Revenue as having become abated on 1984. No further proceedings took place thereafter in the matter arising from application under section 175 of the Tenancy Act. 6. Thereafter, a criminal complaint was lodged against resident/petitioners by one Padma S/o Perna, who is one of the rest respondent under sections 147, 447 and 427 IPC and under section 3(v) of SC/ST Act. The said proceedings were challenged by way of writ petition before this Court vide DBUW Pet. No. 4638/90 in which initially proceedings under section 3 of the SC/ST Act were stayed but subsequently when provisions of Section 3 of the Act were upheld, writ petition was dismissed. 7. Thereafter in 1993. present writ petition was filed with the following reliefs: "(a) by an appropriate writ, order or direction, the older dated 5.7.1993 passed by respondent No. 2 be ordered to be placed on record and be declared illegal and be quashed and further the respondents be restrained from interfering with the possession of the petitioners over the land in question; (b) any other appropriate writ, order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioners." 8. It was specific case of the petitioners that they are being sought to be evicted in pursuance of order purported to have been passed on 5.7.1993, copy of which has not been supplied to them in spite of giving several applications and they are not being given opportunity to defend themselves 15 against those proceedings. The respondents in their reply to the writ petition, have referred to the proceedings which had culminated in favour of the petitioners and also dismissal of writ petition on 22.3.1993. It is also stated that respondent No. 2 had rightly passed the order within his jurisdiction directing to take over the possession from the land and possession to be 20 handed over to respondent Nos. 4 to 6 in view of the fact that interim order passed by I-Hon'ble Court had already been vacated. It is also stated that respondent No. 2 had rightly passed the order within his jurisdiction directing to take over the possession from the land and possession to be 20 handed over to respondent Nos. 4 to 6 in view of the fact that interim order passed by I-Hon'ble Court had already been vacated. No reply was submitted to the averments that in spite of asking for supplying copy of order which has not been supplied with but it was stated that writ petitioners have no right to unlawful possession over the land in question. The reply in fact is in 25 derogation to and flies in the face of a judicial order passed by Revenue Courts restraining the State from dispossessing the petitioners except in accordance with law by filing the appropriate suit and get the decree for possession. The State was party to the aforesaid proceedings. In fact the revision before Board of Revenue was preferred by State but the same was 30 dismissed. Apparently, the averments for non-supply of copy of order by which petitioners' right were effected, have not been disputed. The petition remained pending for 10 years. Reply was filed on 22.7.1995. No attempt was made in spite of clear assertion about non-supply of the order dated 5.7.1993 and particularly that no order was in fact passed by which the petitioner were sought to be evicted. 9. It is in the aforesaid circumstances, learned Single Judge has allowed the writ petition. The order dated 5.7.1993 alleged to have been passed by respondent No. 2 which the respondents themselves have not produced before the Court nor copy of which has been supplied to the ao petitioners, cannot sustain the attempt to dispossess the petitioners on that basis. The facts and circumstances of the case as narrated above about which there is no dispute, speak for themselves, and warrant no interference in this appeal. 10. The application filed under section 5 of the Limitation Act as also appeal 45 stand dismissed.Appeal Dismissed. *******