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2006 DIGILAW 65 (RAJ)

Narain v. Board of Revenue

2006-01-05

GOVIND MATHUR

body2006
Judgment Govind Mathur, J.-By an order dated 24.02.1986 the Board of Revenue for Rajasthan, Ajmer while accepting second appeal preferred by the Respondents No. 4 to 7 and 12 in light of an agreement said to be arrived between the parties decreed the revenue suit for declaring tenancy of the plaintiffs in respect of agricultural land measuring 12.4 bighas in Arazi Nos. 615, 616, 617, 618, 622 and 624 to 635 in village Mawli, District Udaipur. The Board of Revenue by order-dated 06.01.1990 also rejected an application preferred by the petitioners to recall the order-dated 24.02.1986. Aggrieved by both the orders referred above this petition for writ is preferred under Articles 226 and 227 of the Constitution of India. 2. The factual matrix necessary to be marshaled for adjudication of the issue involved is that the plaintiffs Respondents No. 4 to 7 and 12 by way of filing a suit under Sections 88 and 63 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as “the Act of 1955”) before the Sub Divisional Officer, Vallabhnagar claimed declaration for khatedari in respect of land measuring 12 ½ bighas situated in Arazi Nos. 615, 617, 619, 622, 626 to 633 and 635. The claim was made with an allegation that out of four brothers viz. Kana, Lalu, Ganga and Khima, all sons of Bhopa Bheel, except Khima sold their share in the ancestral land to the plaintiffs in the year samvat 2009 and possession of the land was given but in revenue records khatedari of the plaintiffs was not entered. The plaintiffs as such asserted their right for declaration of khatedari in the disputed land. The plaintiffs also claimed rights to enter their khatedari with regard to land in dispute on basis of adverse possession. 3. The Defendants No. 1 to 6 in the suit (those are the Petitioners No. 1 to 5 and the Respondents No. 8 to 11 in present writ petition) refuted the allegations made in plaint by way of filing a written statement. The defendants in written statement also averred and alleged that the plaintiffs were having possession over the land in dispute as Shri Kana mortgaged it in samvat 2025 with the plaintiffs and by five years thereafter the possession of the plaintiffs became as trespasser. 4. The Sub Divisional Officer, Vallabhnagar by Judgment -dated 28.02.1978 rejected the suit. The defendants in written statement also averred and alleged that the plaintiffs were having possession over the land in dispute as Shri Kana mortgaged it in samvat 2025 with the plaintiffs and by five years thereafter the possession of the plaintiffs became as trespasser. 4. The Sub Divisional Officer, Vallabhnagar by Judgment -dated 28.02.1978 rejected the suit. While doing so learned Sub Divisional Officer held that the sale-deed produced by the plaintiffs to substantiate their claim is not admissible in evidence being not registered and also not being properly stamped. The Sub Divisional Officer, Vallabhnagar also held that the plaintiffs failed to prove their possession over the land since samvat 2008-2009. The plaintiffs also failed to prove purchase of land from father of the defendants or by the defendants before coming into force of the Act of 1955, Section 42 of which makes sale, gift and bequest of interest by khatedar tenant belonging to Scheduled Tribe to a person other than Scheduled Tribe void. The defendants are members of Scheduled Tribe and the plaintiffs being Brahmin could have not purchased land from the plaintiffs in view of the provisions of Section 42 of the Act of 1955. 5. By way of filing an appeal before Revenue Appellate Authority, Udaipur a challenge was given by the plaintiffs to the Judgment dated 28.02.1978 passed by the Sub Divisional Officer, Vallabhnagar. By Judgment -dated 23.06.1979 the Revenue Appellate Authority, Udaipur affirmed the Judgment -dated 28.02.1978 passed by the Sub Divisional Officer, Vallabhnagar while rejecting the appeal preferred by the plaintiffs. The plaintiffs, therefore, preferred a second appeal before the Board of Revenue for Rajasthan. 6. Counsel for the plaintiffs appellants on 24.02.1986 presented a compromise said to be arrived between the parties on 09.06.1983 and on that basis the Board of Revenue reversed the Judgment of trial Court as well as of Revenue Appellate Authority, Udaipur. The Board of Revenue in light of terms of compromise decreed the suit by making an order to enter 12.4 bighas land in Arazi Nos. 615 to 618, 622, 624 to 635 in the name of the plaintiffs. The order aforesaid was passed on basis of compromise-dated 09.06.1983 in absence of Counsel for the defendants. 7. The Board of Revenue in light of terms of compromise decreed the suit by making an order to enter 12.4 bighas land in Arazi Nos. 615 to 618, 622, 624 to 635 in the name of the plaintiffs. The order aforesaid was passed on basis of compromise-dated 09.06.1983 in absence of Counsel for the defendants. 7. The petitioners sought review of Judgment and decree dated 24.02.1986 by way of submitting an application under Section 229 of the Act of 1955 which stood rejected by Board of Revenue by an order dated 06.01.1990. The Board of Revenue while rejecting the review application held that the suit was decreed as a consequence of compromise arrived between the parties wherein defendants admitted that their father transferred the disputed land to plaintiffs father about 32 years back i.e., prior to coming into force of the Act of 1955, therefore, the provisions of Section 42 of the said Act does not have any application. The Board while rejecting the application for review also observed that the review petitioners in the petition made no allegation with regard to fraud or misrepresentation in obtaining compromise. 8. Dissatisfied by rejection of review application and also by Judgment and decree dated 06.01.1990, instant petition for writ is preferred by the petitioners. .9. While giving challenge to the Judgment and decree impugned it is contended by Miss Rekha Borana, learned Counsel for the petitioners that no decree on basis of compromise said to be arrived between the parties could have been passed under Order 23 Rule 3 CPC as the compromise produced before the Board on its face appears to be an outcome of fraud. Learned Counsel pointed out minute details of the factual background in which the compromise in question was presented before the Board. The steps of the movement of facts in which compromise was presented before the Board of Revenue are:- .(1) Theplaintiffs filed the Revenue Suit in the year 1976 which stood rejected by the Sub Divisional Officer, Vallabhnagar on 28.02.1978. The plaintiffs failed to prove that they or their father purchased land from the defendants. They also failed to prove their possession over the land in dispute. The plaintiffs failed to prove that they or their father purchased land from the defendants. They also failed to prove their possession over the land in dispute. .(2) The plaintiffs being Brahmin could not have purchased land from the defendants who belong to Scheduled Tribe after coming into force of the Act of 1955 in view of the provisions of Section 42 of the said Act. .(3) The Revenue Appellate Authority rejected the appeal preferred by the plaintiffs and then the plaintiffs filed a second appeal before the Board of Revenue in the year 1979. The defendants throughout contested the claim made by the plaintiffs. .(4) During pendency of Second Appeal on 09.06.1983 a compromise said to be arrived between the parties was presented by the plaintiffs before the Munsif and Judicial Magistrate, Mawli. The Munsif and Judicial Magistrate, Mawli on 09.06.1983 made an order to present the compromise before him on 10.06.1983 alongwith relevant file. .(5) Instead of 10.06.1983 on 09.06.1983 the Munsif and Judicial Magistrate, Mawli recorded existence of compromise and verified the same. .(6) The compromise that was verified by the Munsif and Judicial Magistrate, Mawli on 09.06.1983 was presented before the Board of Revenue on 24.02.1986 i.e., after a lapse of about 2 ½ years from the date of its verification. .(7) The Board of Revenue accepted the appeal decreed the suit without recording its satisfaction with regard to truthness of the compromise. 10. It is pointed out by learned Counsel for the petitioners that there was no occasion and need for presenting the compromise before the Munsif and Judicial Magistrate, Mawli, if any entered between the parties, as no proceedings with regard to issue in dispute was pending before that Court. The Munsif and Judicial Magistrate, Mawli on 09.06.1983 ordered to place before him the compromise alongwith relevant file on 10.06.1983, though before that Court no case between the parties was pending. It is further pointed out that in spite of order dated 09.06.1983 the Munsif and Judicial Magistrate, Mawli instead of 10.06.1983 on 09.06.1983 itself verified the agreement and returned original to the plaintiffs. It is further pointed out that in spite of order dated 09.06.1983 the Munsif and Judicial Magistrate, Mawli instead of 10.06.1983 on 09.06.1983 itself verified the agreement and returned original to the plaintiffs. The original compromise as verified by the Magistrate was not produced by the plaintiffs before the Board of Revenue for a period of about 2 ½ years and only on 24.02.1986 it was presented by Counsel for the plaintiffs appellants and on that basis the Board of Revenue reversed the Judgment s give by Sub Divisional Officer, Vallabhnagar and Revenue Appellate Authority, Udaipur and the suit was decreed. Learned Counsel for the petitioners also stated and pointed out from the proceedings that on 24.02.1986 Counsel for the defendants was not present and as such the suit was decreed in absence of the defendants. 11. On basis of facts stated above it is asserted by Counsel for the petitioners that the compromise on basis of which the suit was decreed by the order impugned is not only appears to be obtained by fraudulent manner but its truth itself was doubtful. The Board of Revenue without recording its satisfaction with regard to the fact as to whether the suit was adjusted by any lawful agreement or compromise by the parties acted upon it and decreed the suit. According to Counsel for the petitioners no such Judgment and decree could have been passed under order 23 Rule 3, CPC. 12. The Counsel for the petitioners on the same count assailed validity of the order passed by the Board of Revenue rejecting the application for review. It is asserted by Counsel for the petitioners that the Board of Revenue should have satisfied itself with regard to genuineness of the compromise before acting upon that. 13. No reply to the writ petition is filed on behalf of the respondents. While opposing the writ as claimed by the petitioners it is contended by learned Counsel for the plaintiffs respondents that the Board of Revenue on basis of a compromise arrived between the parties which was verified by the Munsif and Judicial Magistrate, Mawli, rightly decreed the suit. According to Counsel for the respondents this Court while exercising powers under Articles 226 and 227 of the Constitution of India cannot examine genuineness of the compromise which in fact has been proved before the learned Munsif and Judicial Magistrate, Mawli. According to Counsel for the respondents this Court while exercising powers under Articles 226 and 227 of the Constitution of India cannot examine genuineness of the compromise which in fact has been proved before the learned Munsif and Judicial Magistrate, Mawli. Counsel for the respondents urged that present petitioners being not party to the suit further contends, that they could have preferred no review application under section 229 of the Act of 1955. To substantiate the contention, Counsel for the respondents has placed reliance upon a Division Bench Judgment of this Court in the case of Magaram & two Ors. vs. The B.O.R. & Ors., reported in 1998 (1) WLC 521. 14. Heard Counsel for the parties. 15. In precise, the question for adjudication before the Court is that whether the Board while decreeing the suit by order dated 24.02.1986 rightly exercised the powers vested with it by virtue of Order 23 Rule 3 CPC. Order 23 Rule 3 CPC reads as under:- “ Order 23 Rule 3-Compromise of suit.-Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit]. [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] 16. The essential ingredient to pass a decree by recording compromise between the parties is satisfaction of the Court about adjustment of suit wholly or in part between the parties though a lawful agreement or compromise. The determination as to whether a compromise is lawful depends upon the facts of the dispute between the parties, terms of the compromise and circumstances under which it came into existence. The determination as to whether a compromise is lawful depends upon the facts of the dispute between the parties, terms of the compromise and circumstances under which it came into existence. The Court, which is to record compromise and to pass a decree thereon, therefore, to satisfy itself about adjustment of suit wholly or in parts is required to consider all facts providing foundation to the agreement or the compromise. Not only the terms of settlement but also the circumstances in which agreement or compromise is placed before the Court should always be examined with care and caution. The Court while passing a decree on basis of a compromise or an agreement, perform a judicial duty and not a ministerial act, therefore, satisfaction of the Court while passing a decree in accordance with Order 23 Rule 3 CPC should reflect in the order recording compromise. The truth of the compromise is the essence to pass a decree under Order 23 Rule 3 CPC, as such, these powers must not be exercised in mechanical manner but must ensure truth and genuineness of the settlement arrived between the parties. The Court must acquire highest degree of satisfaction by making best efforts to remove even a shadow of doubt so as to prove truth of compromise. 17. In the present case the Board of Revenue while issuing a decree by recording compromise between the parties ordered as under:-“We have perused the agreement. On basis of agreement above this second appeal is accepted. The land measuring 12.4 bighas in Arazi No. 615 to 618, 622, 624 to 635 is ordered to be entered in khatedari of plaintiffs. Decree-sheet be issued. Judgment is pronounced. (English translation of the original vernacular.)” 18. From reading of the order passed by Board of Revenue it does not reveal as to how the Board was satisfied with regard to lawfulness of the compromise placed before it. As stated in the preceding pares, the compromise was produced before the Court by Counsel for the plaintiffs in absence of Counsel for the defendants or the defendants themselves. The defendants were contesting the suit right from its inception and Sub Divisional Officer, Vallabhnagar on 18.02.1978, dismissed it. The appeal preferred by plaintiffs before Revenue Appellate Authority was also rejected in the year 1979 and that appeal too was contested-by the defendants. The defendants were contesting the suit right from its inception and Sub Divisional Officer, Vallabhnagar on 18.02.1978, dismissed it. The appeal preferred by plaintiffs before Revenue Appellate Authority was also rejected in the year 1979 and that appeal too was contested-by the defendants. The compromise, which was placed before the Board of Revenue on 24.02.1986, was said to be arrived at between the parties in the month of June 1983. The compromise was not presented before the Board of Revenue in the year 1983 but was presented before the Munsif and Judicial Magistrate, Mawli without any rhyme and reason on 09.06.1983. The Board of Revenue while acting upon the compromise has not taken into consideration any of the facts stated above and gets satisfied only by its presentation before it by Counsel for the plaintiff respondents. A compromise that is said to be arrived at between the parties in the month of June 1983 was produced before the Court-adjudicating dispute on 24.02.1986. This fact itself creates doubt about truthness of the compromise, therefore, the Board of Revenue should have examined this aspect of the matter before acting upon it specially in the circumstances that the compromise was placed before the Court by Counsel for the plaintiffs in absence of Counsel for the defendants petitioners. 19. Another important aspect of the matter is that the defendant petitioners are members of Scheduled Tribe and the plaintiff respondents are Brahmin by caste. A transfer of land by a Scheduled Tribe to a non Scheduled Tribe/Scheduled Caste is void under the provisions of Section 42 of the Rajasthan Tenancy Act, 1955. The defendant plaintiffs from the inception of suit were contesting the issue with specific stand that the land was never sold to father of the plaintiffs and if sold then the same was in violation of the provisions of Section 42 of the Rajasthan Tenancy Act, 1955. In the compromise the period of sale of the land is mentioned when the provisions of Tenancy Act were not in force, therefore, it was all the more necessary for Board of Revenue to make necessary efforts to verify genuineness of the compromise. The Board while dealing with a revenue matter must be vigilant to protect the rights of weaker sections of the peasants and also to achieve the objects of land reform statutes. The Board while dealing with a revenue matter must be vigilant to protect the rights of weaker sections of the peasants and also to achieve the objects of land reform statutes. The Board of Revenue could have waited for few days to call the defendants or their Counsel to verify truthness and genuineness of the compromise. 20. I also failed to understand as to what was the occasion before the plaintiffs to get the compromise verified in the year 1983 before Munsif and Judicial Magistrate, Mawli where no case with regard to dispute in question was pending. 21. Another important aspect of the matter is that the suit itself was for seeking declaration of khatedari of the land measuring 10 ½ bighas but the decree passed by the Board of Revenue on basis of alleged compromise pertains to 12.4 bighas of land. 22. All the facts stated above create lot of doubts about genuineness of the compromise on basis of which the Board of Revenue accepted the second appeal and decreed the suit. The Board of Revenue should have taken into consideration all the facts above while satisfying itself with regard to genuineness and truthness of the compromise. The Board of Revenue acted in most casual manner while accepting the second appeal and decreeing the suit by order impugned dated 24.02.1986. 23. I have also perused the agreement Annexure-5 and its verification made by Munsif and Judicial Magistrate, Mawli on 09.06.1983. The Munsif and Judicial Magistrate, Mawli was not at all required to verify the compromise as no matter pertaining to it was pending before him. I highly deprecate such kind of verification by a judicial officer. From perusal of verification made on 09.06.1983 it also appears that all the defendants were not present before Munsif and Judicial Magistrate and the compromise was verified on basis of the statement of Advocates for the parties. An Advocate can act in a case where he is authorized and empowered by his client to act on his behalf . No such power was given by defendants to their Counsel who appeared and got the compromise verified before Munsif and Judicial Magistrate as no case was pending before that Court. From perusal of verification. I am not at all satisfied with the truth of compromise said to have been arrived between the parties. 4.24. No such power was given by defendants to their Counsel who appeared and got the compromise verified before Munsif and Judicial Magistrate as no case was pending before that Court. From perusal of verification. I am not at all satisfied with the truth of compromise said to have been arrived between the parties. 4.24. The contention of the Counsel for the respondents that no application for review could have been preferred by the present petitioners before the Board of Revenue not being party to the proceedings is of no consequence as one of the review petitioner Narain s/o Kanna Bheel was party to the proceedings since filing of the suit. Beside that this Court is examining validity of the Judgment dated 24.02.1986 where the issue with regard to competence of review application is non-consequential. 25. Accordingly for the reasons discussed and mentioned above, this petition for writ succeeds and, therefore, the same is allowed. The Judgment and decree dated 24.02.1986, passed by Board of Revenue for Rajasthan, Ajmer is hereby quashed. The order of Board of Revenue dated 06.01.1990 in review application is also quashed. The second appeal decided by Board of Revenue by order impugned dated 24.02.1986 is ordered to be resorted at its original number. The Board of Revenue is directed to decide the same on merits expeditiously as far as possible within a period of six months from the date a certified copy of this order is placed before the Registrar of the Board. 26. No order as to costs.