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Rajasthan High Court · body

2007 DIGILAW 1555 (RAJ)

Deena v. B. O. R.

2007-08-14

MOHAMMAD RAFIQ

body2007
Honble RAFIQ, J.—This writ petition has been filed by the petitioners against the judgment of the Board of Revenue (for short - the Board) dated 20.10.1998 whereby the appeal filed by respondent No. 4 against the judgment of the Revenue Appellate Authority (for short - the Authority) dated 6.5.1994 was allowed and the judgment/decree passed by the Revenue Appellate Authority, Jaipur dated 6.5.1994 was set aside and the judgment passed by learned Sub-Divisional Officer, Kotputli dated 23.1.1991 was restored. 2. Originally a revenue suit under Section 88 of the Rajasthan Tenancy Act, (for short the Act) was filed by the respondent No.4, Gyarsa before the Sub-Divisional Officer. Dispute between the parties is about the land measuring 25 bighas and 18 biswas of khasra No. 115 situated in village Pragpura. The plaintiff contended that petitioners have trespassed over 12.10 bighas of land out of the aforesaid land situated towards north-east. The petitioners later got their name recorded in the girdawari and also managed to get a parcha issued in their favour during settlement operations. The plaintiff therefore prayed that possession of khasra No. 115 be directed to be handed over to him. The non-petitioners however contested the suit and asserted that this land was given to them by former Jagirdar for cultivation and ever since they are in possession of the same prior to settlement. It was asserted by the petitioner that the land was entered in their name in the revenue records prior to settlement started and petitioners are in possession of the same since Svt. 2017. The suit for injunction in absence of possession is not maintainable which even otherwise is barred by limitation. 3. I have heard Shri R.K. Goyal, the learned counsel for the petitioners and Shri Gyaneshwar Bardar, the learned counsel for the respondents. 4. Shri R.K. Goyal, the learned counsel for the petitioners argued that the learned Board of Revenue erred in law in entertaining the second appeal because no substantial question of law was involved and in fact no substantial question of law has been framed by the Board. Referring to sub-section (2) of Section 224 it was argued that the present matter did not fall in any of the four categories referred to therein and therefore the Board has grossly erred in law in interfering with the judgment of the Revenue Appellate Authority. Referring to sub-section (2) of Section 224 it was argued that the present matter did not fall in any of the four categories referred to therein and therefore the Board has grossly erred in law in interfering with the judgment of the Revenue Appellate Authority. The Board failed to appreciate that the petitioners were in continuous possession of the land since Svt. 2017 and the respondent No. 4 utterly failed to prove as to how and when he acquired the possession. In the absence of possession, the suit for injunction was not maintainable. Shri R.K. Goyal further argued that plaintiff respondent No. 4 himself in his suit has admitted the possession of the defendant petitioners so much so in para 6 of the plaint, he has stated that even if the plaintiff is treated to have been dispossessed from the land in dispute, the defendants still had no right over the same and being trespasser over the disputed land, would be liable to be ejected. It was argued that the suit for permanent injunction simplicitor was not maintainable because as per the records name of the petitioners was entered as khatedar tenant in jamabandi Svt. 2037 to 2055. S.D.O. had appointed receiver over the same land on 1.8.1972. This ex parte order was set aside and the S.D.O. handed over possession of the land to the petitioners on 30.9.1972. Even in khasra girdawari of Svt. 2012 to 2014 name of Jorawar Singh and Manohar Singh was shown as tenant and the respondent No. 4 Gyarsa was not mentioned either as sub-tenant or khatedar. Mere entry of his name as sub-tenant in Samvat 2016 did not create any right or interest in his favour according to Section 19 of the Act. It was argued that mutation No. 108 dated 20.9.1960 would not be proof of the fact that respondent No.4 was in possession of the land which fact was required to be proved independently by lead of cogent and reliable evidence. The Board in this respect has failed to appreciate the provisions of Section 209. If the respondent No.4 was out of possession, a simplicitor suit for injunction and declaration was not maintainable without prayer for recovery of possession. It was argued that according to item No. 23 of III Schedule of the Act, the limitation for filing a suit for ejectment of a trespasser is three years. If the respondent No.4 was out of possession, a simplicitor suit for injunction and declaration was not maintainable without prayer for recovery of possession. It was argued that according to item No. 23 of III Schedule of the Act, the limitation for filing a suit for ejectment of a trespasser is three years. In fact apart from para 6 & 7 of the plaint, para 11 of the plaint pertains to prayer clause, in which the plaintiff has made a vague prayer to the effect that if he is treated to be dispossessed, the possession be restored to him. Relying on the judgment in Mohammad Khalil Khan & Ors. vs. Mahbub Ali Mian & Ors. (AIR (36) 1949 Privy Council 78), it was argued that cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Shri R.K. Goyal relied on the another judgment in Lala Hem Chand vs. Lala Pearey Lal & Ors. (AIR (29) 1942 Privy Council 64) and on that basis argued that plaintiff can recover possession only on the strength of his own title and not by weakness of defendants title. He also relied on the judgment of Nagpur High Court reported in AIR 1932 Nagpur 5 to argue that limitation runs from the date of dispossession. Shri R.K. Goyal also cited two Supreme Court judgments in Sawarni (Smt.) vs. Inder Kaur (Smt.) & Ors., (1996) 6 SCC 223 and Sankalchan Jaychandbhai Patel & Ors. vs. Vithalbhai Jaychandbhai Patel & Ors., (1996) 6 SCC 433 and argued that the Supreme Court in those cases categorically held that mutation does not create or extinguish any title nor does it have any presumptive value of title. It only entitles the person concerned to pay land revenue. He argued that the Revenue Appellate Authority while reversing the judgment passed by the S.D.O. had correctly approached the issue and rightly held that the name of respondent No. 4 was recorded in khasra girdawari of Svt. 2012 to 2014 in the last column described as special details (Vishesh Vivran) and his name was not recorded as sub-tenant and therefore as on 15.10.1955 when the Act was enforced, he was not in possession and therefore the mutation entered in his name was not correct. 2012 to 2014 in the last column described as special details (Vishesh Vivran) and his name was not recorded as sub-tenant and therefore as on 15.10.1955 when the Act was enforced, he was not in possession and therefore the mutation entered in his name was not correct. It was therefore prayed that the writ petition may be allowed in terms of the prayer extracted above. 5. Per contra, Shri Gyaneshwar Bardar, the learned counsel for the respondent No. 4 opposed the writ petition and argued that the learned S.D.O., Kotputli had rightly decided the suit in favour of the plaintiff by its order dated 23.1.1991. This judgment was based on correct appreciation of law as also the facts and documentary and oral evidence. The learned Revenue Appellate Authority interfered with the judgment contrary to provisions of Section 224 of the Act. The learned Board of Revenue has therefore rightly reversed the judgment of learned Revenue Appellate Authority. It was argued that framing of substantial question of law as required by Section 100 of C.P.C. cannot be insisted upon in second appeal filed before the Board of Revenue wherefore specific provisions have been incorporated in sub-section (2) of Section 224 according to which an appeal shall lie to the Board against the judgment of the Revenue Appellate Authority if the decision is contrary to law or usage having force of law or the Board has failed to determine some material issue of law or to some usage having the force of law or further if there was substantial error or defect in the procedure, which may possibly have produced an error or defect in the decision of the case upon the merits and lastly the decision is contrary to the evidence available on record. It was argued that plaintiff had been in possession of the suit land since Svt. 2011 and since then girdawari entries continued in his name. The respondent No. 4 in collusion with the Patwari got name of the defendant deleted from the records. The defendant petitioners neither pleaded their adverse possession nor did the plaintiff ever said that the defendant was in possession. The plaintiff was able to prove the mutation No. 108 dated 20.9.60 and their possession from Svt. 2023 to 2026 as also from 2027 to 2030. The defendant petitioners neither pleaded their adverse possession nor did the plaintiff ever said that the defendant was in possession. The plaintiff was able to prove the mutation No. 108 dated 20.9.60 and their possession from Svt. 2023 to 2026 as also from 2027 to 2030. In fact, the learned counsel for the respondent No.4 also argued that the revenue authorities changed the name of the plaintiff in place of defendants for which they had no power. It was argued that Gyarsa (non petitioner) became a tenant in Svt. 2012 i.e. on 15.10.1955 when the Tenancy Act came into force and remained in possession upto Svt. 2016 and therefore he was entitled to khatedari rights over such land. Khatedar Jorawar Singh and Manohar Singh challenged the mutation of the petitioners and claimed khatedari rights. They have admitted that it was for the defendant petitioner to prove as to how and when the with what authority they came in possession. Shri Gyaneshwar Bardar argued that respondent No. 4 is in possession of the land from Svt. 2011 and his name was recorded in khasra girdawari of Svt. 2011-2015 (1954-58) but in Svt. 2016 (1959) also his name was recorded as sub-tenant. The plaintiff acquired khatedari rights in terms of Section 19 of the Tenancy Act on 20.9.1960 and mutation was made in his name. Thereafter his name was further recorded as khatedar tenant in jamabandi of Svt. 2023 to 2028 (1966-1970) and then from Svt. 2027 to 2030 (1971 to 1974). It was when the defendant petitioner interfered with the possession of north east part of 12 bighas and 10 biswas of khasra No. 115, the respondent filed the aforesaid appeal. The earlier records then clearly reflects khatedari in the name of plaintiff respondent No. 4. The Settlement Department has no authority to enter the name of the petitioner. Shri Gyaneshwar Bardar relied on the judgment of division bench of this Court in Alladin & Ors. vs. Board of Revenue & Ors., RRT 2002(1) 129 and the judgment which was impugned in that case by the learned Single Judge with the same title reported in RRB (4) 1997 139. It was therefore prayed that the writ petition be dismissed with costs. 6. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties. 7. It was therefore prayed that the writ petition be dismissed with costs. 6. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties. 7. Case that was originally set up by the plaintiff-respondent in the revenue suit filed before the S.D.O., Kotputli was in fact an injunction suit. Copy of the plaint in that suit has been placed on record at Annexure-4 with the rejoinder filed by the petitioner. Perusal of the contents of the plaint indicates that though the prayer therein was made for grant of injunction against the defendant-petitioners but alternatively it was also prayed that if the plaintiff respondents are treated to have been evicted from the lands measuring 12.5 bighas, possession of the land be restored back to them and the defendant petitioners by issue of injunction restrained from interfering with their possession. This prayer when read in the context of the averments of the plaint would make it evident that in para 6 of the plaint, the plaintiff non-petitioner clearly stated that defendants be restrained from interfering with the right of the plaintiff in peacefully enjoying the land of khasra No. 115 situated on northern-eastern side measuring 12.5 bighas and indicated in the map by red ink and further that if the plaintiff is treated to have been dispossessed from that land, even then the defendants have never cultivated the same nor have been permitted by the plaintiff to cultivate any part of that land. the defendants had no right whatsoever on that land. In para 7 of the plaint, this becomes clear where it has been stated that the status of the defendants was that of a trespasser and when the plaintiff is considered as having been dispossessed from the land in dispute, he should be held entitled to recovery of possession. In para 8 of the plaint, it is stated that cause of action arose to the plaintiff on 10.5.71 when the defendants tried to interfere with the enjoyment of the property by the plaintiff and also prevented them from doing so in the future. In para 8 of the plaint, it is stated that cause of action arose to the plaintiff on 10.5.71 when the defendants tried to interfere with the enjoyment of the property by the plaintiff and also prevented them from doing so in the future. It is in this backdrop that this Court is called upon to decide whether the view taken by the Revenue Appellate Authority was such which warranted interference by the Board of Revenue and further whether the Board of Revenue was justified in view of sub-section (2) of Section 224 of the Rajasthan Tenancy Act to do so. 8. A perusal of the judgment of the Revenue Appellate would clearly show that the Authority having noticed arguments of both the sides that mutation was entered in the name of the plaintiff on 20.9.60 under Section 19 of the Tenancy act and accordingly his name was entered in the jamabandi of Svt. 2023-30 and on this basis the plaintiff claims to become the khatedar of the land. There is no discernible reason why did he not file the suit for declaration claiming khatedari right. The plea set up by the plaintiff that since he was recorded as khatedar, he could straight away file the suit for injunction was not accepted because the learned Authority held that the plaintiff in that case was required to prove that his possession on the said land was for more than 12 years. In order to wriggle out the objection of limitation, the plaintiff merely filed the suit for injunction. The Authority therefore held in this context that the parcha settlement issued in favour of the defendants by Settlement for Svt. 2037 to 2056 proved that the defendants were in possession of the land which in other words would mean that as on the date of filing the revenue suit on 31.5.72 the defendants were in possession of the land and according to khasra girdawari 2016-19 also the disputed property was in the cultivatory posse-ssion. 2037 to 2056 proved that the defendants were in possession of the land which in other words would mean that as on the date of filing the revenue suit on 31.5.72 the defendants were in possession of the land and according to khasra girdawari 2016-19 also the disputed property was in the cultivatory posse-ssion. The learned Authority thereafter on the basis of the statement of certain witnesses and evidence of the defendant Amar Singh held that the possession of the defendants on the disputed property was for a period prior to 1960 and in these circumstances, the suit for eviction filed after 12 years of the approval of cause of action was barred by law and this was purposely been given the shape of an injunction suit so as to avoid the objection of limitation. Regarding plaintiff, the Authority held that his name was entered in the khasra girdawari of Svt. 2012 to 2014 in vishesh vivran only as a sub-farmer (up-krishak) and therefore when on 15.10.2005 the Act of 1955 came into force, he was not recorded as krishak and khatedari rights could not be conferred upon him. 9. Third Schedule appended to the Act of 1955 in entry 8 deals with the injunction suit, limitation for which is three years from the date of accrual of cause of action. When however it comes to recovery of possession by ejecting a trespasser, entry 23 of the IIIrd Schedule with reference to Section 183 indicates its period of limitation as 12 years from the date of accrual of cause of action. In the present case, the respondents filed suit for injunction although they could not prove their possession and without the proof of their possession, the suit of injunction by itself could not be maintained. Besides, the plaintiff respondent is merely basing his claim on mutation and could not point out as to what was the foundation of such mutation. As rightly held by the Supreme Court in Sankalchan Jaychand Bhai Patel and Sawarni, supra, mutation entered in the name of one or the other party in the revenue records does not create or extinguish title in their favour or against them nor does it have any presumptive value of title. It merely entitles the person concerned to pay the land revenue. It merely entitles the person concerned to pay the land revenue. In the circumstance s, therefore, the plaintiff-respondent failed to prove not only his possession, on that basis he claimed khatedari rights on the disputed land but he also failed to prove the suit for recovery of possession. Neither did he file suit for recovery of possession, nor did he sought to get himself declared as khatedar. 10. It was a suit filed simplicitor for injunction. Having failed to prove their possession, the suit for injunction divorced from possession was not maintainable. Even otherwise, limitation for filing suit seeking recovery of possession by dispossessing a third party being twelve years, with that time from the date of accrual of the cause of action, suit was required to be filed. According to Section 183 of the Tenancy Act the suit for recovery of possession should be filed within twelve years from the date of dispossession and not from the date when the khatedar-tenant demands restoration of possession from the alleged trespasser and is denied the same. Khasra girdawari of Svt. 2017 show that the land was in the name of the petitioner s and parcha settlement was also issued in their name. In the circumstance s therefore the very correctness of the mutation entered in the name of plaintiff respondent by gram panchayat under Section 19(2) of the Tenancy Act becomes legally doubtful because such rights could be conferred only by the Assistant Collector/Sub-Divisional Officer. Assertion of the plaintiff-respondent therefore that the defendant-petitioner threatened to interfere with their possession and that would not therefore bring the suit within the limitation. 11. Even otherwise, jamabandi of Svt. 2027 to 2030 recorded on the basis of mutation dated 20.9.1960 under Section 19 of the Tenancy Act could not be taken as correct as in khasra girdawari of Svt. 2012 to 2014, names of jagirdars Jorawar Singh and Manohar Singh were recorded and the name of the plaintiff Gyarsa was only in the column of remarks and therefore he could not be considered as sub-tenant of jagirdar. 12. 2012 to 2014, names of jagirdars Jorawar Singh and Manohar Singh were recorded and the name of the plaintiff Gyarsa was only in the column of remarks and therefore he could not be considered as sub-tenant of jagirdar. 12. It is trite law that an appellate Court created under the Land Revenue Act in view of the provisions contained in sub-section (2) of Section 224 of the Rajasthan Tenancy Act can entertain and allow an appeal only if it finds that decision is contrary to the law or suffers from some mistake having the force of law or having failed to determine some material issue of law or usage having force of law or that it suffers from substantial error or defect in the prescribed procedure or that such decision is contrary to the weight of evidence. The judgment passed by the Revenue Appellate Authority did not call for interference on any of these counts. On the facts of the present case in the context of what was held by the S.D.O., it cannot be said that the Revenue Appellate Authority reversed or varied the findings of the S.D.O. by upsetting a finding either of fact or of law against the weight of evidence on record. As rightly held by Privy Council in Lala Hem Chand, supra, a plaintiff can succeed on the question of title and recovery of possession of the said property only on the strength of his own title and not by weakness of the defendants title. Grant of injunction in the nature of which that was prayed for by the plaintiff-respondent, with a vague assertion that if he was held to be not in possession, the same be restored to him by dispossessing the defendants. The plaintiff was required to prove much more than mere mutation and he having failed to prove so, the order passed by the learned S.D.O., Kotputli dated 23.1.91 as restored by the Board of Revenue vide judgment of the Revenue Appellate Authority dated 6.5.94 cannot be justified in law. The plaintiff was required to prove much more than mere mutation and he having failed to prove so, the order passed by the learned S.D.O., Kotputli dated 23.1.91 as restored by the Board of Revenue vide judgment of the Revenue Appellate Authority dated 6.5.94 cannot be justified in law. The judgment of the division bench of this court in Alladin & Ors., supra, relied on by learned counsel for the respondent on the principal that Section 209 is meant for grant of relief without there being any formal amendment in the plaint and to prevent the multiplicity of proceedings cannot be applied to the facts of the present case where neither any foundation was laid nor any specific material was placed on record for getting the plaintiff declared as the khatedar tenant. Nor even was any firm stand taken as to the possession of the plaintiff. 13. In view of what has been discussed above, the writ petition deserves to be allowed and is accordingly allowed. The judgment passed by the Board of Revenue dated 20.10.1998 is set aside and that of the Revenue Appellate Authority dated 6.5.1994 reversing the judgment of the S.D.O. is restored. There shall be however no order as to costs.