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2006 DIGILAW 3060 (RAJ)

Ramdhakeli v. Ramesh

2006-11-18

A.C.SHARMA

body2006
Honble SHARMA, M.—This revision, petitioner preferred this revision petition under Section 230 read with Section 221 of the Rajasthan Tenancy Act, 1955 against the impugned order of Sub-Divisional Officer, Deeg dated 19.10.2006 in the Miscellaneous Application No. 33/2004. 2. The brief facts related to this revision petition are that the petitioner filed a suit for declaration & permanent injunction under Section 88, 89 & 188 of the Rajasthan Tenancy Act, 1955 in respect of disputed land bearing khasra Nos. 503/0.14, 504/21, 505/0.04, 506/0.33, 531/0.12, 532/0.11, 533/0.15, 537/0.46, 539/0.34, 540/0.33, 544/0.57, 545/0.02 & 546/0.31 of village Shahpur and Khasra Nos. 490/0.17, 487/0.08, 492 min/0.14, 493 min/0.06, 494/0.14, 478/0.15 & 540/0.20 of village Achalpur, Tehsil Deeg and alleged that her father Mohar Singh was a recorded khatedar of 1/4th share in the disputed land of village Shahpur and 1/2th share of the land of village Achalpur. It has been stated that the land under dispute had been ancestral one and by virtue of succession, she had 1/7th share in the land under dispute. It was further alleged that petitioners brother Sohan Lal filed two separate suits in respect of the above disputed land against his father Mohar Singh for partition and division of holding of his 1/4th share, in which the trial Court vide its judgment and decree dated 24.10.1998 declared him khatedar of only 1/7th share. Two appeals against the above mentioned judgment and decree dated 24.10.1998 were preferred by Mohar Singh and the same were dismissed on 26.6.2000. The second appeals were also dismissed by the Honble Board on 5.9.2000 summarily at the admission stage. 3. It has been stated that in spite of the stay order, Mohar Singh transferred and alienated the disputed land and sold 6/7th share of the disputed land of village Achalpur to the non-petitioner Ramesh Gujar on 21.10.2003 and the same was mutated in favour of the purchaser in compliance of the sale-deed. Appeal against the said mutation is still pending before Sub-Divisional Officer, Deeg (Bharatpur). It has been stated that the non-petitioner filed an application for the appointment of receiver on the suit land which was illegally accepted by SDO, Deeg vide his order dated 19.10.2006. The present revision petitioner filed an application praying that she may be allowed to cultivate the dispute land on cash security, but the same was rejected by lower Court on 28.10.2006. The present revision petitioner filed an application praying that she may be allowed to cultivate the dispute land on cash security, but the same was rejected by lower Court on 28.10.2006. Being aggrieved by the said orders passed by SDO, Deeg dated 19.10.2006 & 28.10.2006, the present revision petition has been preferred before the Board. 4. I have heard the arguments of the learned counsels of both the parties to finality dispose of this revision petition. 5. Being aggrieved of the orders passed by Sub-Divisional Officer, Deeg dated 19.10.2006 and 28.10.2006, the learned advocate for the petitioner has stated during course of arguments that admittedly the disputed land is of co-tenancy and no partition has taken place amongst the co-sharers; and by the principles of law, every co-tenant is deemed to be in possession of every inch of land; hence, no receiver can be appointed on such land as has been held in 1994 RRD page 276. It has also been argued that the application for appointment of receiver filed by the non-petitioner was not maintainable because the non-petitioner has not filed any cross-suit or any counter-claim. The lower Court appointed receiver on the ground that there was possibility of breach of peace on the spot, which was against the well settled law because on the ground of apprehension of breach of peace, the appointment of receiver is not justified. The lower Court erred in appreciating the fact that the sale-deed executed in favour of the non-petitioner by Mohar Singh, was hit by Section 52 of the Transfer of Property Act because it was executed despite express stay order from the Court. It has also been stated during the course of arguments that the lower Court acted in collusion with the non-petitioner because the certified copy of the order dated 28.10.2006 was refused to be given to her. It was, therefore, prayed that the revision petition be accepted and the impugned orders dated 19.10.2006 and 28.10.2006 be set aside; and non-petitioner may be allowed to continue to cultivate the land on cash security. The revision petition has been supported by an affidavit along with the stay application. 6. It was, therefore, prayed that the revision petition be accepted and the impugned orders dated 19.10.2006 and 28.10.2006 be set aside; and non-petitioner may be allowed to continue to cultivate the land on cash security. The revision petition has been supported by an affidavit along with the stay application. 6. The learned advocate for the non-petitioner has argued at length and at the very outset raised preliminary objection that this petition is not at all maintainable at this stage because the revision-petitioner has already filed an appeal before the Revenue Appellate Authority, Bharatpur in the present case. In support of the above contention, a certified copy of the order dated 13.11.2006 has been produced in which it has been mentioned that the appeal has been entertained and registered for hearing as Appeal No. 101/06 on 13.11.2006 and the same has been listed for further hearing on 18.11.2006. The learned advocate for the non-petitioner argued that once an appeal has been entertained against an order passed under 212 of the RTA irrespective of the fact whether that order is for cash security or for appointment of receiver, no revision can lie in any Court. The petitioner has already availed the lawful remedy available to her by preferring an appeal. In the appeal preferred by the appellant-the present petitioner, caveat application has been filed by the non-petitioner; hence as per order-sheet dated 13.11.2006 of the RAA, Bharatpur, notices have been issued to the caveator and the case has been listed for further hearing on 18.11.2006. 7. I have perused the record of the lower Court particularly the order-sheet dated 13.11.2006 and have heard the arguments of the learned counsels. In view of the fact that as per law, this is a premature stage of preferring any revision petition before the Board. It has come on record that an appeal has already been preferred by the revision-petitioner before the RAA, Bharatpur; hence, whatever relief and remedy is desirable, can only be sought before the appellate Court in the regular appeal. The appeal has been registered and obviously it has to be decided on merit after hearing both the parties and after affording full opportunity of hearing to the contesting parties. 8. Hence, in the light of the above observation, I am of the view that this is a very premature stage to entertain this revision petition. The appeal has been registered and obviously it has to be decided on merit after hearing both the parties and after affording full opportunity of hearing to the contesting parties. 8. Hence, in the light of the above observation, I am of the view that this is a very premature stage to entertain this revision petition. The preliminary objections raised by the learned advocate for the non-petitioner are sustainable and consequently, this revision petition being premature and non-maintainable, is rejected at the stage of admission. 9. Both the parties are hereby directed to be present before the Revenue Appellate Authority, Bharatpur on 27.11.2006 to proceed further for hearing of the pending appeal. Pronounced in open Court.