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2007 DIGILAW 1062 (RAJ)

Gopa Ram v. Sona Ram

2007-05-17

R.N.ARVIND

body2007
Honble ARVIND, M.—This is an application under Section 151 CPC presented by learned advocate on behalf of the non-petitioners. By this application dated 5.2.2007 learned advocate on behalf of the non-petitioners has argued that the order of permitting the non-petitioners to retain possession by depositing security amount to the tune of Rs. 300/- per bigha per year is illegal and improper, hence this order may be withdrawn. 2. This order was passed in the revision No. 7575/06 pending before this Court. To understand this matter properly the background of the revision is necessary to be explained here. 3. The present revision petition has been filed under Section 230 of the Rajasthan Tenancy Act against the order of the learned Revenue Appellate Authority, Jodhpur dated 6.9.2006 wherein he has dismissed the appeal filed by the petitioners against the order of the learned Assistant Collector, Jodhpur dated 30.9.2005. Briefly stated the facts of the present case are that the disputed land of village Dhava comprised in khasra No. 723 measuring 37 bighas and 5 biswas in claimed to be the khatedari land of late Shri Bhura Ram. Late Shri Bhura Ram has died and the petitioners are the khatedari tenants of the land in question as being his legal representatives. 4. The petitioners filed an application under Section 183(B) of the Rajasthan Tenancy act before the Tehsildar, Luni. On the application, the Tehsildar, Luni has called for the report of the patwari vide his order dated 27.7.2005. The non-petitioners did not appear before the court of Tehsildar to defend application under Section 183(B) of the Rajasthan Tenancy Act but they filed a revenue suit in the Court of Assistant Collector for declaration and permanent injunction. Along with the suit, the non-petitioners/plaintiffs filed an application under Section 212 of the Rajasthan Tenancy Act for the grant of temporary injunction. The reply of the application was filed by the present petitioners and in the reply it was prayed that either receiver be appointed over the land in question or the land in question be allowed to remain in possession of either of the parties on payment of Rs. 30,000/- as cash security. The trial Court vide its judgment dated 30.9.2005 allowed the application filed by the non-petitioners and the ex parte order of temporary injunction dated 2.8.2005 in respect of 37.05 bighas land of khasra No. 723 situated in village Dhava was confirmed. 30,000/- as cash security. The trial Court vide its judgment dated 30.9.2005 allowed the application filed by the non-petitioners and the ex parte order of temporary injunction dated 2.8.2005 in respect of 37.05 bighas land of khasra No. 723 situated in village Dhava was confirmed. The order was confirmed by the learned Revenue Appellate Authority, Jodhpur vide his order dated 6.9.2006. 5. The learned counsel for the petitioner has submitted that the respondents are in illegal possession of the land in question. On application under Section 183(B) of the Rajasthan Tenancy Act is pending before the Tehsildar, Luni for their ejectment. It was also submitted that the petitioners are the khatedar tenants of the land in question as per the revenue record and no order of temporary injunction or permanent injunction can be issued against a khatedar tenant. He has relied on the judicial pronouncement of the Honble Rajasthan High Court reported in 2001 DNJ 486. He has further submitted that as per the full bench decision of the Honble Rajasthan High Court reported in 1995 RRD page 76 passed in case of Surja Ram vs. State of Rajasthan, the land be allowed to remain in possession or either of the parties on payment of cash security worth Rs. 30,000/- per year. 6. That the above revision petition was admitted by this Court on 30.11.2006 and it was ordered for interim arrangement that if the non-petitioners deposit cash security @ Rs.300/- per bigha per year, they be allowed to remain in possession of the disputed land. If the cash security is not paid, the receiver will take possession of the land in question. The notices were issued by this Court on the respondents. 7. The respondents have appeared through their learned counsel Shri Duni Chand. The learned counsel for the respondents has filed an application under Section 151 of C.P.C. and has prayed for setting aside the ex parte order of this Court dated 30.11.2006. He has submitted that admittedly the petitioners are not in possession of the land in question and there is no danger to the property. The land in question is not in medio. Therefore, the receiver should not be appointed ex parte. It was argued that there were no cross-objections regarding possession before the trial Court and Receiver is the harshest remedy and cash security is also not justified. The land in question is not in medio. Therefore, the receiver should not be appointed ex parte. It was argued that there were no cross-objections regarding possession before the trial Court and Receiver is the harshest remedy and cash security is also not justified. He has relied on various judgments of the Board of Revenue, such as RRD 1998 page 80, 1987 RRD page 395, 2006 RBJ page 340, 2001 RBJ page 103, 2003 RBJ page 288 and 2003 RRD page 148. 8. The counsel for the petitioners, in reply has argued that the Court has passed simply an order of cash security and the order of cash security is fully justified as the facts and circumstances of the case warrant the same. He has relied upon the full bench of the Honble Rajasthan High Court passed in case of Surja Ram vs. The State of Rajasthan reported in 1995 RRD 76 wherein. The Honble Rajasthan High Court has held in paragraph No.12 as under:– "The Revenue Courts are also courts under Article 375. Entry 3 of the List 2 of VII Schedule provides for the power of the State to make laws. Entry 65 empowers State Government to fix the jurisdiction and power of the Court mentioned in the list. Section 23(i) vests Board with the Control and superintendence of the Revenue court with Board. Thus, the Revenue Courts being a judicial body have all those incidental and ancillary powers which in the circumstances are necessary to safe-guard rights of the parties. The Court as per facts of the given case while dealing with the matter is the best judge to arrive at its conclusion on the facts of a case, that order would be justified in the interest of justice and in order to safeguard the rights of the parties till a final adjudication of the matter. The inherent powers u/Sec. 151 CPC are complementary to those powers which are specifically conferred on the Court by the Code and the Courts in exercise of its inherent discretionary power have all ancillary powers to pass the order safeguarding the rights of the litigating parties. Though the inherent power is not to be exercised in a manner which will be contrary or different from the procedure expressly implied in the Code. Though the inherent power is not to be exercised in a manner which will be contrary or different from the procedure expressly implied in the Code. In view of this, as stated above, there is no bar for the revenue Courts to order for asking cash security in proper cases even when it does not order for appointment of receiver nor grant temporary injunction if the court finds prima facie case. Nevertheless, the fulfilling of conditions mentioned in Section 212(2) of the Act will come into play in the case where once the court has granted temporary injunction or appointed receiver and later on come to conclusion that cash security will serve the purpose of appointment of receiver/granting of temporary injunction." 9. I have given my thoughtful consideration to the submission of the learned counsels for the rival parties and perused the record. I have also gone through the various authorities cited by the learned counsels of the rival parties. The Law laid down in 1998 RRD page 80 is not applicable in the present case because this is not a case of the appointment of receiver. Identically 1987 RRD page 395 is also not applicable because it is also for the appointment receiver. 2000 RBJ 430 is not applicable because it provides for the non-appointment of receiver in the matters under the Rajasthan Colonization Act, 2001 RRD 103 also provides that ex parte receiver should not be appointed if property is not in medio. All these citations are of the learned Board of Revenue and there is no citation either of the Honble Rajasthan High Court or of the Honble Supreme Court contrary to the Law laid down by the Honble Rajasthan High Court (Full Bench) in case of Surja Ram vs. State cited supra. it is the duty of Courts to safeguard the interest of recorded khatedars. Possession without lawful authority cannot be accepted as such. As the legal remedies may usually take very long period it is not proper to let the khatedars suffer the agony of watching illegal possessions of others on their own land. In case possession by others over the khatedari land is tolerated or ignored by courts without any safeguards then it is like throwing a thirsty person in a dreary desert of desperation without any oasis in sight. 10. In case possession by others over the khatedari land is tolerated or ignored by courts without any safeguards then it is like throwing a thirsty person in a dreary desert of desperation without any oasis in sight. 10. As such there is no force in the arguments advanced by the learned counsel for the non-petitioners. 11. The learned Counsel for the petitioners has vehemently argued that the Court has inherent powers to ask for the cash security even if no receiver has been appointed or the order of temporary injunction has been passed or vice versa. He has offered cash security worth Rs. 35,000/- for the disputed land. He has mentioned this fact in his application filed under Section 151 of CPC and has vehemently submitted before this Court that the cash security should be enhanced to Rs. 35,000/- instead of Rs. 300/- per bigha per year which comes to Rs. 11,000/- only per year for the whole land. On the contrary, the learned counsel for the non-petitioners has submitted to set aside the order of cash security passed earlier. 12. Having gone through the record of the case, the available evidence on the record and the Law Laid down by the Honble Rajasthan High Court in case of Surja Ram cited supra, I deem it proper to uphold the order of cash security but at the same time deem it proper to enhance the amount of cash security. Consequently, I amend, the order dated 30.11.2006 and order that if the non-petitioners deposit Rs. 500/- per bigha per year as cash security before the Tehsildar, Luni, they may be allowed to remain in possession of the land in question situated in village Dhava comprised in Khasra No. 723 measuring 37 bighas and 5 biswas of land failing which the Tehsildar, Luni will take possession of the land in question as a Receiver from the respondents and will take care of the duties of Receiver as per law. Since the petitioners are not in possession, hence they cannot be permitted to hold possession on cash security even if the offer is higher. Possession cannot be shifted by the order of the Court at an interim stage, hence possession will be permitted to be held by the non-petitioners as ordered above or else Receiver will take possession as ordered. Since the petitioners are not in possession, hence they cannot be permitted to hold possession on cash security even if the offer is higher. Possession cannot be shifted by the order of the Court at an interim stage, hence possession will be permitted to be held by the non-petitioners as ordered above or else Receiver will take possession as ordered. The cash security may be deposited by the respondents within a period of two month from the date of this order. The application dated 5.2.2007 of the non-petitioners under this revision is decided as above. This order regarding application under Section 151 CPC will be subject to the final outcome of this revision petition. The revision may be listed for further action. Record of lower courts be called. Pronounced.