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2006 DIGILAW 3047 (RAJ)

Kamal Prakash v. Kulwant Singh

2006-11-15

R.B.PARMAR, R.N.ARVIND

body2006
Honble ARVIND, M.—This is a second appeal against the judgment and decree of the learned Revenue Appellate Authority, Hanumangarh dated 10.8.01. 2. In brief the facts of this case are that the plaintiff/appellant filed a suit before the learned SDO under Section 183 of the Rajasthan Tenancy Act, 1955 against the defendant respect of the land of chak No. 1 R.K. of stone No. 223/281 bearing kila No.1 are area 15 biswas and of kila No. 10 measuring 12 biswas. It was alleged that the defendant trespassed over the disputed land of which plaintiff had the undisputed khatedari rights. The defendant while not denying the title of the plaintiff presented a counter claim for conferment of khatedari rights to him on the basis of adverse possession. The Trial Court framed four issues and after taking evidence and after hearing the parties dismissed the suit of the appellant and allowed the counter claim of the defendant and declared the defendant as khatedar tenant of 2 bighas of land comprised in stone No. 223/281 of chak No. 1 R.K. bearing kila No. 1 and 10 vide judgment dated 26.6.01. 3. Aggrieved against this judgment, appeal was made to the learned Revenue Appellate Authority, Hanumangarh who amended the decree of the trial Court and passed the decree of 1.10 bighas of land instead of 2 bighas by his order dated 10.8.2001. 4. Aggrieved by the judgment dated 10.8.2001 of the learned Revenue appellate Authority, Hanumangarh, this is the second appeal before us. 5. The learned advocates of the rival parties were heard. 6. Learned advocate on behalf of the appellant supported the arguments advanced in the appeal. The main issue in this case is whether the defendant could prove his claim of adverse possession beyond a reasonable doubt. The defendant claimed hostile possession for 13 years over the disputed land of the appellants khatedari. In support of his claim he has submitted the copies of "Sudhkar" of Irrigation Department from Exbt-1 to 21. The plaintiff denied the genuineness of the documents issued by the Irrigation Department and he submitted before the first appellate court that the said exhibits are not genuine, because the irrigation facilities were started on a regular basis from the year 1997. In the year 1984 there was no regular irrigation facility. The plaintiff denied the genuineness of the documents issued by the Irrigation Department and he submitted before the first appellate court that the said exhibits are not genuine, because the irrigation facilities were started on a regular basis from the year 1997. In the year 1984 there was no regular irrigation facility. Also the defendant had to prove consistent hostile possession for 12 years and also he had to prove that he remained in possession against the wishes of the plaintiff. He invited our attention to the case decided by the Honble Supreme Court given in the case of "Deva (deceased) by LRs vs. Sajjan Kumar (deceased) by LRs reported in 2004 RRT page 405". It was also argued that mutation No. 85 was attested on 30.6.89 in favour of the plaintiff/appellant. This shows that mutation is attested after verification of possession and presumption is that plaintiff was in possession on 30.6.89. Both the courts have failed to clarify as to how could the hostile possession continue in such a situation. 7. Learned advocate on behalf of the respondent argued that he was in hostile possession for more than 12 years i.e. from 1984 to 1997 and thee is no proof with the appellant for disturbances of the possession at site. He has produced the copies of "Sudhkar: of the Irrigation Department and the plaintiff has failed to give any contradictory evidence. He also argued that it is not correct that the irrigation facility did not start in the year 1984. He has given proof to that effect as per the "Bari bandi" of the irrigation Department. He also argued that the mutation was attested at his back and he was not heard even when he was in possession. 8. We have heard the parties and we have carefully examined the record available in this case. The main crucial point in this case is issue No.4 which relates to the claim of the defendant on the basis of adverse possession. The claim of defendant is based on para 9 of his written statement in which he says that when the plaintiff refused to admit the defendant as the khatedar tenant of the land in question he had to file the counter claim. There is no specific date of refusal to accept him as a tenant. The claim of defendant is based on para 9 of his written statement in which he says that when the plaintiff refused to admit the defendant as the khatedar tenant of the land in question he had to file the counter claim. There is no specific date of refusal to accept him as a tenant. It has been well settled by the Honble Apex Court in several cases that in the theory of adverse possession, the defendant should not only show that he is in possession of the suit land for more than 12 years but he has to prove that such possession was hostile to the plaintiff. he has to prove that handing over of possession was refused on asking by the khatedar and ever after that he remained in possession for more than 12 years. In this case the defendant has failed to prove beyond doubt as to when was the possession asked back and when did he refuse it. Specific mention of dates has to be there. Both the courts below have ignored this insufficiency in the evidence. both the courts below have relied on the Sudhkar report which have been challenged and also Sudhkar reports are not sufficient evidence to prove the hostile possession as claimed. Also there is difference in the conclusion of the lower courts below. The trial Court has decreed the counter claim up to 2 bighas of the disputed land whereas the first Appellate Court has decreed the suit up to 1.10 bighas only whereas the suit was only for 1.07 bighas. This contradiction invites several doubts. There is no clarification regarding the attestation of the mutation in the year 1989. The order of the lower courts are suffering from the lapses because of debatable evidence and inadequate conclusions. Both the courts below have differed in area as decreed differently by the both courts. 9. Before ordering deprivation of khatedari rights courts have to carefully examine the claim of the person claiming khatedari on the basis of adverse possession. Deprivation of khatedari cannot be as simple like plucking of berry fruits by way side wanton boys. Khatedari rights in jamabandi are a solid construction of a building which need very logical reasons under the Rajasthan Tenancy Act for demolition of the same. 10. Deprivation of khatedari cannot be as simple like plucking of berry fruits by way side wanton boys. Khatedari rights in jamabandi are a solid construction of a building which need very logical reasons under the Rajasthan Tenancy Act for demolition of the same. 10. In view of the conclusions above, the principle laid down by Honble Supreme Court cited supro is totally relevant to this case. 11. As such this second appeal is allowed. The impugned order of both the lower courts are set aside and this case is remanded back to the learned SDO, Sangariya to decide the suit afresh after providing adequate and proper opportunity of hearing to both the parties in this case. To save the time for notices - Parties are directed to appear before the learned SOD, Sangariya on 3.1.2007. The disputed land shall remain in the possession of the receiver till the decision of the suit. 12. It is also directed that learned SDO, Sangariya will decide this matter expeditiously. Pronounced.