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2007 DIGILAW 1982 (RAJ)

Rawata v. Jagmal

2007-10-10

MOHAMMAD RAFIQ

body2007
Honble RAFIQ, J.—The petitioners have challenged the judgment passed by the Board of Revenue dated 12.1.1993 whereby the Board while reversing the judgment of the Revenue Appellate Authority, Sikar dated 7.1.1989 restored the judgment of the Assistant Collector, Chirawa dated 5.9.1988 and the subsequent order dated 8.4.1993 whereby the review petition of the respondents was rejected. 2. Factual matrix of the case is that the plaintiff-non-petitioner Nos. 1 to 11 filed a suit for declaration against the petitioner and non-petitioners Nos. 12 to 29 before SDO, Jhunjhunu on 30.6.1987. Subject matter of the dispute was the land comprising in khasra No. 9/2 measuring 3 bigha 10 biswa, khasra No. 13/1 measuring 102 bigha 10 biswa and khasra No. 163 measuring 8 bigha 1 biswa in all 114 bigha 1 biswa which was situated in village Farat Tehsil Chirawa, District Jhunjhunu. The plaintiff-non-petitioner Nos. 1 to 11 and non-petitioners Nos. 12 to 28 were khatedar tenant of the said land. In the revenue suit that was filed, it was asserted that plaintiffs and defendants were belonging to the same family. Disputed land was their ancestral property and parties were in continuous possession of the same from the time of their ancestors. It was stated that Ganpat and Chandra Ram were the elders in the family and as such karta thereof. During life time of Chandra Ram, Gopal and Ganpat the parties were cultivating the disputed lands jointly and after their death by mutual arrangement. In that situation, the legal partition of the land between the parties did not take place. It was stated that mutation No. 64 of the disputed land was entered in the name of Chandra Ram S/o Ramlal without the knowledge of the plaintiff and contrary to their interest. According to plaintiffs they came to know about this attestation of the mutation only few days before filing of the revenue suit. This was done by collusion and without any basis. According to petitioners, all legal heirs of Chandra Ram, Gopal and Ganpat had equal share in the disputed lands and the ancestors of each of these three were entitled to 1/3rd share out of the total land. This was done by collusion and without any basis. According to petitioners, all legal heirs of Chandra Ram, Gopal and Ganpat had equal share in the disputed lands and the ancestors of each of these three were entitled to 1/3rd share out of the total land. According to the petitioners, although the service of notice was not effected on them, yet the learned Assistant Collector, Chirawa ordered ex-parte proceedings against them on 30.8.1988 and thereafter fixed the matter for evidence of the plaintiffs and on their evidence being recorded, finally passed the judgment and decree on 5.9.1988. The petitioners and the defendant Rajaram submitted an application on 28.9.1988 under Order 9 Rule 13 of CPC for setting aside the ex-parte decree and simultaneously they also filed an appeal before the Revenue Appellate Authority, Sikar. While the application was pending, the appellate authority allowed the appeal wide judgment 7.1.1989 thereby setting aside the judgment and decree dated 5.9.1988 passed by the Assistant Collector. In that view of the matter, the defendants did not press their application filed under Order 9 Rule 13 CPC for setting aside ex-parte judgment and the application was dismissed as having become infructuous. Aggrieved by the judgment and decree dated 7.1.1989 passed by the Revenue Appellate Authority, Sikar, plaintiff-non-petitioner Nos. 1 to 11, filed appeal before the Board of Revenue. During pendency of the appeal, petitioners filed an application under Order 41 Rule 27 CPC for permission to adduce additional evidence and to place on record copies of certain revenue records. That application however was rejected by the Board of Revenue on 1.8.1991. The petitioners thereafter submitted another application under Order 8 Rule 1 and 9 read with Section 151 CPC on 10.8.1992 seeking permission to file written statement which was also rejected by order of the Board of Revenue dated 24.11.1992. The Board of Revenue finally allowed the appeal under its judgment dated 12.1.1993 thereby setting aside judgment of the Revenue Appellate Authority, Sikar dated 7.1.1989. Subsequently, the review petition-filed by the petitioners was also rejected by order dated 8.4.1993. It is against the backdrop of these facts that the present writ petition has been filed with the aforesaid prayers. 3. I have heard Shri K.K. Mehrishi, the learned Senior Advocate for the petitioners and Shri R.S. Purohit and Shri Ajay Gupta for the respondents. 4. Subsequently, the review petition-filed by the petitioners was also rejected by order dated 8.4.1993. It is against the backdrop of these facts that the present writ petition has been filed with the aforesaid prayers. 3. I have heard Shri K.K. Mehrishi, the learned Senior Advocate for the petitioners and Shri R.S. Purohit and Shri Ajay Gupta for the respondents. 4. Shri K.K. Mehrishi, the learned Senior Advocate for the petitioners has argued that the Board of Revenue has committed an error of law in restoring the judgment of the Assistant Collector, Chirawa which was decided ex-parte against the petitioners because notice of that suit was never served upon the petitioners and yet the Assistant Collector ordered the matter to proceed ex-parte against them. The plaintiffs non-petitioners in connivance with the process server obtained a written report on the summons that Pratap refused to take the summons. In the event of refusal, the process server was required to make compliance of the provisions contained in Order 5 Rule 17 CPC. The judgment passed on the basis of such ex-parte proceedings being bad in law was liable to be set aside. Infact, neither did the process server ever come to the petitioner Pratap and the non-petitioner Nos. 12 to 28 except No. 15 nor did they ever refused to accept summons. There was thus no question of service of summons on them being treated as complete and the ex-parte proceedings against them was therefore wholly illegal. The Board has overlooked this important aspect of the matter and such error falls within the ambit of error apparent on the face of the record. 5. Shri K.K. Mehrishi further argued that the plaintiffs in their own plaint came out with the clear stand that the disputed land had been partitioned amongst all the co-sharers according to their convenience and thus they were in possession of their respective shares and therefore second suit for division of holding was not maintainable. There was no evidence to prove title and possession of plaintiffs on the disputed land for decreeing the suit of the plaintiffs and statement of PW-1 Jagmal alone was not sufficient to prove this fact. The plaintiffs-non-petitioner Nos.1 to 11 were not in possession of the disputed land for last more than 50 years and they could not prove the factum of their possession by any cogent or reliable evidence. The plaintiffs-non-petitioner Nos.1 to 11 were not in possession of the disputed land for last more than 50 years and they could not prove the factum of their possession by any cogent or reliable evidence. The documents produced by them consisted of mutation Ex.1, copy of jamabandi for Samvat Year 2012 Ex.2, copy of jamabandi for Samvat Year 2015 Ex.3 and copy of jamabandi for Samvat Year 2017 Ex.4. These documents also proved that land in dispute was in possession of the petitioners father Chandra flam and not that of the plaintiff and that the plaintiffs had received their share in the family property during the life time of their father, therefore, the impugned judgment and decree was liable to be set aside. Shri K.K. Mehrishi has argued that the Courts below failed to appreciate that ancestor of non-petitioner Nos. 1 to 11 namely Gopal and the ancestor of non-petitioner Nos. 12 to 18 namely Ganpat had separated from their father Shri Ramlal during Samvat Year 1990 and at that time the land of the his share had already been given to him and was separately recorded in their khatedari whereas the father of the petitioners Chandra Ram continued to reside with his father Ramlal and was cultivating the lands mutated by Ramlal in his share. His name was shown as sub-tenant in Samvat Year 2012. He acquired khatedari rights of the same by virtue of his possession as on the date of commencement of Rajasthan Tenancy Act, 1955 (for short the Act) i.e. 15.10.1955. There was therefore no basis to accept the claim of the non-petitioners. 6. Shri K.K. Mehrishi, further argued that the Board of Revenue has erred in law in rejecting the application of the petitioners dated 12.3.1991 filed under Order 41 Rule 27 CPC. the documents which the petitioners sought to place on record were certified copies of the public documents genuineness of which was beyond doubt. These documents were useful in deciding the controversy in the matter. the documents which the petitioners sought to place on record were certified copies of the public documents genuineness of which was beyond doubt. These documents were useful in deciding the controversy in the matter. It was argued that when the appeal of the petitioners was allowed by the Revenue Appellate Authority on merits, he did not press the application under Order 9 Rule 13 of CPC for setting aside the ex-parte decree and now when the judgment of the Revenue Appellate Authority has been reversed by the Board of Revenue, the petitioners face dilemma this has given rise to a situation where they have been deprived of their right to get the ex-parte decree set aside. This amounts to error apparent on the face of the record, calling for interference in the matter by this Court. Shri K.K. Mehrishi while citing the khasra girdawari for Samvat Year 2009 and copy of jamabandi of Samvat Year 2012 argued that the disputed land was being cultivated by father of the petitioners Chandra Ram as sub-tenant during life time of his own father Ramlal and he thus acquired khatedari rights in the lands with which his brothers Gopal and Ganpat and for that matter, non-petitioners Nos. 12 to 18 who are their legal heirs have no connection. Shri K.K. Mehrishi also referred to the affidavit of Shri Raj Kumar Pareek, Advocate who represented the petitioners before the Board of Revenue in which he stated that service on defendant Pratap was not affected and therefore ex-parte decree could not be passed against him by the Assistant Collector, Chirawa but that argument was not dealt with by the Board while deciding second appeal. Shri K.K. Mehrishi while referring to Section 63 of the Act, specially Clause (iv) of sub-section (1) thereof submitted that even if what has been argued by the respondent is accepted, then also the interest of a tenant in his holding or a part thereof would stand extinguished if he has been deprived of possession and his right to reclaim possession thereof would be barred by limitation. It was argued that in a situation like this, the suit for ejectment of certain trespasser filed under Section 183 could be filed only within 12 years as per the aid of limitation prescribed at item No. 23 of the Third Schedule. It was argued that in a situation like this, the suit for ejectment of certain trespasser filed under Section 183 could be filed only within 12 years as per the aid of limitation prescribed at item No. 23 of the Third Schedule. In the present case, therefore, even otherwise the suit would be barred by limitation. Shri K.K. Mehrishi also argued that application of the petitioners under Order 41 Rule 27 ought to have been decided by learned Board of Revenue with the main appeal and the judgment passed by the Board is therefore liable to be set aside on this ground as well. Shri K.K. Mehrishi in this connection relied on the judgment of Honble Supreme Court in State of Rajasthan vs. T.N. Sahani & Ors., (2001) 10 SCC 619 and Jaipur Development Authority vs. Kailashwati Devi (Smt.) (1997) 7 SCC 297 . 7. On the other hand, Shri R.S. Purohit, learned counsel for the respondent Nos. 1, 3 to 8, 10 & 11 argued that the suit property originally belonged to one Ramlal and after his death, his three sons Chandra Ram, Ganpat and Gopal succeeded in equal 1/3 share thereof. Names of all these brothers were entered in the jamabandi of Samvat Year 2012, 2015 and 2017, but Chandra Ram in connivance with the revenue officers got his name entered in mutation under Section 19 of the Rajasthan Tenancy Act. The plaintiffs came to know about mutation No. 64 only when the defendants-petitioners attempted to interfere with the possession and cultivation of plaintiff in the year 1987. It was therefore denied that the suit would be barred by limitation. The learned counsel argued that the plaintiffs non-petitioners Nos. 1 to 11 and 12 to 28 being co-sharers in that property, the possession of one of the co-sharers in an undivided land shall be deemed to be possession of entire body of co-sharers. Shri R.S. Purohit in support of this argument relied on the judgment of Supreme Court in the case of Himmatrao vs. Jaikishandas & Ors., AIR 1966 SC 1974 , Thuru Khadia & Ors. vs. Budhu Khadia & Ors., AIR 1980 Orissa 148. Shri R.S. Purohit in support of this argument relied on the judgment of Supreme Court in the case of Himmatrao vs. Jaikishandas & Ors., AIR 1966 SC 1974 , Thuru Khadia & Ors. vs. Budhu Khadia & Ors., AIR 1980 Orissa 148. It was argued that even if actual possession is of one and cultivation is not made by other co-sharers, then also co-sharers would be presumed to be in possession of every inch of land and therefore possession of one or more co-sharers cannot be treated as adverse against others. 8. Shri R.S. Purohit further argued that the reliance on Section 63(1)(iv) and Article 183 of the Act is wholly misconceived. He argued that service of defendant Rajaram and Rawta had been duly effected and the were represented by their counsel, but as they did not submit their written statement and also absented, ex-parte proceedings were therefore rightly ordered to be proceeded against them. The defendant-petitioners thereafter filed application before the Assistant Collector, Chirawa under Order 9 Rule 13 CPC for setting aside ex-parte decree but thereafter when their appeal was allowed by the Revenue Appellate Authority, they, on their own did not press their application for setting aside the ex-parte decree. Shri R.S. Purohit further argued that mutation is only a fiscal entry and does not either decide or confer any title in favour of anyone. 1n support of his argument, he relied on (Thakur) Nirman Singh & Ors. vs. Thakur Lal Rudra Pratap Narain Singh & Ors., AIR 1926 Privy Council 100 & Smt. Sawarni vs. Smt. lnder Kaur & Ors., AIR 1996 SC 2823 . It was argued that when service was effected and report to this effect was furnished by the process server, such report cannot be brushed aside and the assertion made by the defendant that they were not served cannot be lightly accepted. No proof of the fact that service was effected forgoing the summons was brought on record. Shri R.S. Purohit argued that jamabandi of Svt. 2012 and entry made in its column 5 are not being correctly projected by the petitioners. He has argued that column No. 5 itself pertains to the name of Krishak in which the name of not only Chandra but also Bhagwana, Jagmal, Gopal, Jabira, Ramlal etc. were mentioned. Shri R.S. Purohit argued that jamabandi of Svt. 2012 and entry made in its column 5 are not being correctly projected by the petitioners. He has argued that column No. 5 itself pertains to the name of Krishak in which the name of not only Chandra but also Bhagwana, Jagmal, Gopal, Jabira, Ramlal etc. were mentioned. As regards the application of the petitioners under Order 41, Rule 27 CPC, it was argued that the said application was rejected by the learned Board of Revenue by order dated 1.8.1991 by a detailed and speaking order. The petitioners did not challenge that order and the order has thus become final. This issue is now no longer open to be raised. As regards the argument that plaintiffs has already received their share out of the family properties, no such documents have been produced by the petitioners. Shri R.S. Purohit relied on the copy of "missal hakeat" and argued that Gopal and Ganpat held the aforesaid land in their own right much before the death of their father. Such land was never part of the family property. Referring to Annexure-8, which is copy of jamabandi for Svt. 2015 to 20, Shri R.S. Purohit argued that in its column 11, it has been categorically noted for land of khasra No. 158 that the said land was excluded for the purpose of muafi and therefore gair khatedari rights were granted thereabout. Shri R.S. Purohit in support of this argument relied on the judgment of this Court in the case of Smt. Sushita Jain vs. Rajasthan Financial Corporation, Jaipur, AIR 1979 Rajasthan 215. 9. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties. 10. The petitioner have challenged the order of Board of Revenue on the . premise that merely because the name of the original plaintiff was recorded in jamabandi of Svt. 2017 and mutation entered in his name under Section 19 of the Rajasthan Tenancy Act, the khatedari rights could not be conferred on Chandra Ram alone. The Board rightly concluded that possession of one co-sharer would be treated as possession of all and in such a case, howsoever, long may be possession of one, the right and title of other co-sharers in law would not be affected thereby. The Board rightly concluded that possession of one co-sharer would be treated as possession of all and in such a case, howsoever, long may be possession of one, the right and title of other co-sharers in law would not be affected thereby. Their Lordships of Honble Supreme Court in Himmatrao, supra, categorically held that the mere fact that a co-sharer was not in cultivatory possession of the land would not make any difference for the reason that every bit of land which was in cultivatory possession of any one of the co-sharers would be deemed to be in possession of the entire body of co-sharers. This is so because the land was recorded in the name of Ramlal, father of Chandra Ram, Ganpat and Gopal, out of which, Ganpat and Gopal were minor at that time and Chandra Ram was the only major. Even if the name of Chandra Ram alone came to be recorded in jamabandi or even in mutation, that would not make his possession over the disputed property adverse to that of the defendants. There is no question of Section 183 or for the matter, Section 63 of the Act being attracted in such a situation. Mere entering the name of petitioners in mutation recorded would also not make any change in legal position. It is trite law that mutation entries are fiscal in nature and such entries do not either create or extinguish any title or right. Mutation does not have any proprietary value or title. Mutation enters in the name of the person in whose name it is recorded only enables him to pay the land revenue. There is no question of the suit of the plaintiff-respondents being barred by limitation because even without actual possession of everyone of the co-shares, possession of one co-sharer can never be treated as adverse to others and thus there is no limitation for filing a suit so as to debar the other co-sharers from claiming their rights to get the land partitioned and claim possession thereof, 11. Now coming to the argument that the notices were not properly served on the defendant petitioner No. 2 Pratap and therefore the judgment and decree passed by the Board of Revenue is liable to be set aside particularly when this argument in spite of being raised before the Board of Revenue was not decided, it should be appreciated that the application filed by the petitioners under Order 9 Rule 13 was not decided on merits because it was not pressed by the petitioners and this was owing to the subsequent development that the decree itself had been set aside on merits by the learned Revenue Appellate Authority. But that judgment was later reversed by the learned Board of Revenue and the judgment of the Board of Revenue is now under challenge in this writ petition. When however the order of the Assistant Collector is examined on merits, it is found that he has while deciding the revenue suit taken note of the fact that defendant Nos. 4 and 9 namely Raja Ram S/o Ganpat Ram and Rawat S/o Chandra Ram appeared in response to the notice whereas others did not appear in spite of service and ex-parte proceedings were thus initiated against them. When the appeal was pending before the Revenue Appellate Authority, argument that was raised by the petitioners was that the plaintiffs in connivance with the process server had wrongly obtained the report that the defendants refused to accept the summons. Apart from that, the petitioners challenged the judgment of the Assistant Collector while raising several grounds on merits of the case also. It appears that the Revenue Appellate Authority allowed the appeal of the petitioners on merits rather than giving any finding on the question of service of notice upon them. The matter thus was examined on merits, but even before the decision would be rendered by the Board of Revenue, the petitioners on their own choice decided not to press the application under Order 9 Rule 13. The judgment of the Board of Revenue clearly shows that even before the Board, the matter was argued by both the sides on merits. The judgment of the Board of Revenue clearly shows that even before the Board, the matter was argued by both the sides on merits. In view of the subsequent development and keeping in view the finding of the first Revenue Court that service of notices have been effected on the defendants, unless any mala fide or as argued by the learned counsel for the respondents forgery is alleged and prima facie proved by the petitioners, the finding cannot be reopened. The petitioners have not been able to disprove the fact that at no point of time, the land was recorded in the name of Ramlal, father of Ganpat, Gopal and Chandra Ram and that this land came to be recorded in the name of Chandra Ram alone and when mutation was entered in his name, his other two brothers, namely Ganpat and Gopal were minor. That finding also cannot be reopened. 12. Now coming to the other argument that decision of the application under Order 41, Rule 27 earlier than deciding the appeal itself by the Board of has occasioned miscarriage of justice and resulted in an illegal order being passed by the Board, I am not inclined to uphold this argument either. The learned Board of Revenue by its order dated 1.8.1991 rejected the application of the petitioners to place on record certified copies of jamabandi of Svt. 2013, 2015 and 2017 to 2020, missal hakeat of 1999. They were the documents relating to the other lands and not of the land in dispute. The petitioners wanted to bring these documents on record to show that Ganpat and Gopal had received their share from the family property by way of these lands. When those documents which have again been placed on record of this petition by the petitioners at Annexure-5, 6, 7 & 8 are examined, it becomes evident that the lands were earlier muafi lands and were then recorded in favour of Gopal and Ganpat and later son of Gopal, Bhagwana. These lands were thus never part of the family property. I am also not inclined to accept this argument that since name of petitioner Ganpat was separately shown as Krishak in column 5 of jamabandi of Svt. 2012, therefore, he alone should be treated to be in cultivatory possession of the land and recognized as khatedar thereof. If jamabandi of Svt. I am also not inclined to accept this argument that since name of petitioner Ganpat was separately shown as Krishak in column 5 of jamabandi of Svt. 2012, therefore, he alone should be treated to be in cultivatory possession of the land and recognized as khatedar thereof. If jamabandi of Svt. 2012 which is placed on record at annexure 11 is carefully examined, it becomes clear that column No. 4 thereof pertains to the name of Krishak along with particulars thereof and the period of cultivation and therein not only the name of Chandra, but also the names of Ganpat S/o Ramlal and Bhagwana, Sheochandra, Jagmal S/o Gopal and also Nabira, Ramlal each having 1/3rd share have been recorded. Immediately, below their names, name of Chandra S/o Ramlal has again been mentioned but that does not mean that the fact of others would thereby be completely wiped out. On that basis, it cannot be argued that name of Chandra alone was shown as sub-tenant, therefore, only the petitioners would be entitled to khatedari rights by virtue of Section 19 of the Rajasthan Tenancy Act. In such a situation, the plaintiff-respondents being co-sharers of the property of land in dispute, were entitled to mere declaration of their rights. Entry No. 3 of the Third Scheduled of the Act, 1955, relating to suit for revision of holdings and Entry No. 5 with reference to Section 85 of the Act relating to suit for declaration of right would be attracted in such situation for which no period of limitation is prescribed. The suit of the plaintiffs-respondents would therefore be treated to have been within the period of limitation. 13. In view of what has been discussed above I do not find any merit in this writ petition. 14. The writ petition is therefore dismissed with no order as to costs.