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2005 DIGILAW 1764 (RAJ)

Mandir Hanumanji v. Chidiya

2005-07-12

P.C.BALAI, SANJAY DIXIT

body2005
DIXIT, Member—This appeal has been filed under Section 224 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act) against the judgment and decree passed by R.A.A. Hanumangarh dated 3.3.2000. (2). Briefly the facts of the case are that the appellant- plaintiffs filed a suit against 13 parties including State under Sections 88 & 183 of the Rajasthan Tenancy Act, along with an application for correction of records in the Court of S.D.O. Nohar to the effect that 29 bigha 5 biswa of khasra No. 401-8 bigha 4 biswa in khasra No. 408 in village Gandheli was recorded as temple. The said land was given as temple muafi. the said land was given to the temple as a grant by the landholder Thikanedar of Thikana Jasana. It was stated in the said suit that in the land in question there was a temple and a dharamshala and kund for public use which was a source of water for the pilgrims and also the villagers of village Lalpura and Gandheli. (3). Due to an error in the settlement in he Khasra No. 1 Khasra No. 401 (29 bigha 5 biswa) Kund was added and in Khasra No. 408 (8 bigha 4 biswa) Dharamshala was added. (4). 26 bighas 12 biswa of land out of this was given in exchange in lieu of land taken for the acquisition of canal. The suit was heard by the S.D.O. and 8 issues were framed. After the trial the suit was dismissed by the learned S.D.O. on 20.6.93. An appeal against this order was preferred in the Court of R.A.A. Sriganganagar, which was later on transferred to Revenue Appellate Authority, hanumangarh on 3.3.2000 due to change of jurisdiction. The appeal was dismissed by the learned Revenue Appellate Authority on 3.3.2000. Aggrieved by this order of the R.A.A. the present appeal has been brought. (5). During the course of the arguments, the counsel for the appellants said that the Issue No. 3 was wrongly decided by the S.D.O. because the S.D.O. in his Order had mentioned that the order of the A.C.C. Hanumangarh should have been appealed against in case of any grievance by the plaintiff as the order of the A.C.C. was null and void. The learned counsel also stated that the allotment was wrongly done because the allotment required State Government permission. The learned counsel also stated that the allotment was wrongly done because the allotment required State Government permission. He also placed reliance on 1995 RRD page 202, which says that an order of allotment without change of kism is void. He also placed reliance on 2003 RRD page 788 and cited 2004 RRD page 54 to plead that land acquisition can only be compensated and no land in exchange can be given. 1995 RRD page 447 was also cited. (6). Arguing for the respondents the learned counsel placed reliance on 1974 RRD page 384 and 1980 RRD page 341 and said that for public lands, suit is maintainable only in the Civil Courts. He also brought to the notice of the Court the fact that the order of allotment made by the A.C.C. Hanumangarh on 4.11.1992 was appealed against in the Court of R.A.A. Hanumangarh where the appeal was dismissed and a revision against the dismissal of appeal was brought before this Honble Court (Board of Revenue) where the revision was also dismissed. (7). Learned counsel also cited 1989 RRD page 714 stating that giving of land in exchange of land acquired is not a matter under the Rajasthan and Revenue Act. (8). We have gone through the record, carefully considered the arguments put forward by the counsels, and perused the cited rulings with great respect. (9). The argument of the learned counsel for the appellant regarding the ratio of 1995 page 202 is not tenable because this pertains to allotment of abadi land whereas the impugned order of the Revenue Appellate Authority has been passed in a matter of exchange. Regarding the contention of the learned counsel for the appellant regarding the applicability of 1995 RRD page 447, this is also not tenable because 1995 RRD page 447 relates to matters where the allotting authority has not followed the procedure for allotment as laid down in the rules. It is an admitted fact in the present case that the order of allotment was challenged, on these very same grounds but the challenge failed both in the Court of R.A.A. as well as in the Board of Revenue. As regards 2003 RRD page 788 and RRD 2004 page 54, applicability of said special laws in the colonization areas is a fact, which would nullify the ratio of these rulings. (10). As regards 2003 RRD page 788 and RRD 2004 page 54, applicability of said special laws in the colonization areas is a fact, which would nullify the ratio of these rulings. (10). The basic factual arguments of the learned counsel for the appellant have been that the land under question was mandir muafi land and could not have been allotted in exchange to the respondents. This is a fact which the appellant has failed to prove in both these subordinate Court where a suit and the first appeal has been decided. The Court is seized with this matter only in second appeal, the scope of second appeal is limited to examination of the order passed in first appeal. An examination of the first appeal reveals that the subordinate Court has carefully considered the pleas raised by the appellants and their challenge has failed principally because they had not been able to prove their locus standi as being the guardian of mandir muafi land, for the reasons that no mandir muafi land exists. The learned R.A.A. in his order has also analyzed the fact whether a johad paytan land could be given in exchange in the colonization area or not! He has taken cognizance of the Government Notification No. F. 4(2)(Raj.)(Colo)/72 dated 11.10.1972. (11). From a perusal of the record it is clear that the land is recorded not as the temple land but as public land. If the argument of the appellant is that public lands cannot be allotted, then 1974 RRD page 384 and 1980 RRD page 341 would come into play and would disentitle the appellant from raising the issue altogether because the matter would then lie in a Civil Court. However, it is not necessary for us to adjudicate on that point because the land for dharamshala and kund has been left untouched and johad paytan land has been allotted which was permissible under the special laws obtaining in the colonization area. (12). The second appeal is accordingly dismissed.