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2008 DIGILAW 1143 (RAJ)

Shankar Lal v. Jayesh Kumar

2008-04-25

G.K.TIWARI

body2008
Honble Tiwari, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act) against the impugned order dated 27.1.98 of Revenue Appellate Authority Udaipur by which he dismissed the appeal filed by the petitioner-appellants under Section 225 of the Act. 2. Briefly stated, the facts leading to the revision are that the petitioners filed an application under Section 212 of the Act before Assistant Collector (Sub-Divisional Officer) Girva Distt. Udaipur during pendency of the suit, praying for temporary injunction against the non-petitioners. Sub-Divisional Officer Girva rejected the application for temporary injunction vide his order dated 28.5.97, aggrieved against which an appeal was filed before Revenue Appellate Authority Udaipur who vide his order dated 27.1.98 dismissed the appeal and upheld the order of Sub-Divisional Officer. Aggrieved against this impugned order dated 27.1.98 of Revenue Appellate Authority, the present revision petition is filed before this court. 3. I have heard both the learned counsels. 4. The learned counsel for the petitioners has argued that the non-petitioner-plaintiffs filed a suit under Section 88 of the Act before Sub-Divisional Officer, Girva on the ground that the non-petitioner-plaintiffs have been in possession of the disputed land on the basis of mortgage as mortgagees-in-possession (ewrZghu fcy dCt). During pendency of this suit, petitioner-defendants filed an application under Section 212 of the Act for grant of temporary injunction, which was declined by the Sub-Divisional Officer dismissing the application illegally and unjustly, though the petitioners have been uninterrupted khatedar tenants of the disputed land since even prior to coming into force of the Act. Besides it, the petitioners are in possession of the disputed land as recorded khatedars. The non-petitioners are claiming right over this land as a mortgagee-in-possession whereas the alleged mortgage was redeemed long back before coming into force of the Act. Besides it, revenue laws do not permit anybody to be in possession of the land on the basis of mortgage for unlimited period. So the claim of the non-petitioners are untenable. Khasra girdawaris of the period Svt. 2015 to 2018 show petitioners in cultivatory possession of the disputed land. After Svt. 2018 practice of recording cultivatory possession of the land was stopped by Revenue Department, as such there is no record of the name of anybody in possession of the land thereafter. So the claim of the non-petitioners are untenable. Khasra girdawaris of the period Svt. 2015 to 2018 show petitioners in cultivatory possession of the disputed land. After Svt. 2018 practice of recording cultivatory possession of the land was stopped by Revenue Department, as such there is no record of the name of anybody in possession of the land thereafter. The petitioners have also filed copies of the receipts of Lagaan (rent) deposited by the petitioners. They have also submitted affidavits of independent persons stating that the possession on the land in dispute is of petitioners. Even then Sub-Divisional Officer erroneously dismissed the application of temporary injunction. Not only this, in the impugned order dated 28.5.97 of Sub-Divisional Officer, the non-petitioners are described as khatedars of the disputed land in flagrant contradiction to entry in current jamabandi which shows the petitioners as khatedars. So even before finally deciding the main revenue suit filed under Section 88 of the Act, Assistant Collector has given his finding that the non-petitioners are khatedars which is totally unjust and illegal, when the suit is yet to be decided. The petitioners have also requested for appointment of receiver in view of the fact that both the parties are claiming possession on the disputed land. But this request is illegally not accepted by both the lower courts. It is also argued that Sub-Divisional Officer erred in appointing commissioner for obtaining report of possession with regard to the disputed land. The prima facie possession along with prima facie title of the disputed land has to be ascertained by the presiding officer himself on the basis of the evidence produced by the parties and not by sending a commissioner on the site for finding out possession. He cited 1995 RRD 517 in support of his contention. Learned counsel cited 1989 RRD 591 and 1992 RRC 473 to support his argument that temporary injunction must be granted in favour of the recorded khatedar. He also argued that in an interlocutory order of Section 212 of the Act, question of title cannot be decided as is held in 1987 RRD 593. The learned counsel prayed for appointment of receiver in view of the fact that there have been deadly altercations between the parties leading to institution of criminal cases. He also argued that in an interlocutory order of Section 212 of the Act, question of title cannot be decided as is held in 1987 RRD 593. The learned counsel prayed for appointment of receiver in view of the fact that there have been deadly altercations between the parties leading to institution of criminal cases. He cited 2001 DNJ (1) SC 234, 2003(2) RRT 1101, 2004 RBJ 150 and 2003(2) RRT 1216 for appointing receiver on the disputed land. 5. Countering the arguments of the petitioners, the learned counsel for the non-petitioners has argued that the main application of the petitioners under Section 212 of the Act is for grant of temporary injunction and not appointment of receiver; as such receiver cannot be appointed in this case. It is argued that the non-petitioners have been in possession of the land as mortgagee-in-possession (ewrZghu fcy dCt) since before corning into force of the Act. Both the lower courts have given concurrent findings with regard to the possession of non-petitioners on the disputed land which cannot be interfered with. He has also produced electricity bills pertaining to the disputed land. The petitioners have not filed any counter claim in the suit so they are not entitled to any relief of temporary injunction, as has been held in 1996 RRD 170. He stated that in Svt. 1982 the land was mortgaged to the ancestors of the non-petitioners in lieu of Rs. 70,000/- and since then the non-petitioners have been in possession of the land which should not be disturbed through Section 212 of the Act. 6. I have given thoughtful consideration to the rival contentions; carefully perused the impugned orders dated 27.1.98 of Revenue Appellate Authority Udaipur and 28.5.97 of Sub-Divisional Officer Girva and gone through the record available on the file. 7. That the land in dispute is recorded in the khatedari rights of petitioners in the prevalent jamabandi, is undisputed. The contention of the petitioners is that they are in possession of the disputed land as recorded khatedars of the land. On the contrary contention of the non-petitioners is that they have been in possession of the disputed land as mortgagees-in-possession since even prior to coming into the force of the Act. Perusal of the copies of jamabandi filed before the trial court ranging from 2015 to 2055 shows the petitioners as khatedar tenants of the disputed land. On the contrary contention of the non-petitioners is that they have been in possession of the disputed land as mortgagees-in-possession since even prior to coming into the force of the Act. Perusal of the copies of jamabandi filed before the trial court ranging from 2015 to 2055 shows the petitioners as khatedar tenants of the disputed land. But at the same time alleged forefathers of the non-petitioners are shown as mortgagee in possession (ewrZghu fcy dCt). 8. Provisions regarding mortgage are clearly spelt out in Section 43 of the Act. The Act is also a treatise on measures of land reforms as is clearly set forth in the preamble to the Act. This Act takes care and provides remedy to the besetting problems of rural indebtedness among the agrarian tenants by incorporating exhaustive provisions relating to various aspects of mortgage in Section 43 of the Act. Section 43(4) of the Act, relevant in this case, is reproduced below:- "(4) A usufructuary mortgage of any land made before the commencement of this Act shall, upon the expiry of the period mentioned in the mortgage deed or twenty years from the date of execution thereof, whichever period is less, be deemed to have been satisfied in full without any payment whatsoever by the mortgagor and the mortgage debt shall accordingly be deemed to have been extinguished and thereupon the mortgaged land shall be redeemed and possession thereof shall be delivered to the mortgagor free from all encumbrances". Whether alleged mortgage survives today inspite of provisions of Section 43(4) of the Act, and Whether the claim of the non-petitioners with regard to khatedari rights on the disputed land based on the alleged mortgage are tenable or not, will be decided in the main suit. I refrain from making any comment with regard to the claim of non-petitioners in view of the provisions of Section 43 of the Act which are explicit in this regard. But until the main revenue suit is finally decided, the non-petitioners cannot be treated as khatedar tenant of the disputed land simply on the basis of mortgage allegedly carried out long back even prior to coming into force of the Act. To this extent finding of Sub-Divisional Officer in the impugned interlocutory order dated 28.5.97 in which he has described the non-petitioners as khatedar is erroneous and materially irregular. To this extent finding of Sub-Divisional Officer in the impugned interlocutory order dated 28.5.97 in which he has described the non-petitioners as khatedar is erroneous and materially irregular. Revenue records and documentary evidence available on the file show that petitioners have prima facie title of the disputed land as recorded khatedar and not non-petitioners. 9. It appears from the record of trial court that Sub-Divisional Officer sent a commissioner appointed by him to the site of the disputed land for verification of possession on it. The question of possession on the disputed land is to be deduced on the basis of evidence adduced and not on the report of commissioner as is held in 1995 RRD 517. By appointing commissioner during the proceedings of application under Section 212 of the Act, Sub-Divisional Officer has committed material irregularity. 10. So far as question of possession on the disputed land is concerned, it is a moot point. The petitioners are claiming possession on the land on the basis of being khatedar tenants. The non-petitioners are claiming possession on the land on the basis of being mortgagees in possession -the alleged mortgage is said to have been executed by their ancestors long before coming into force of the Act. Present tenancy laws do not permit continuance of any mortgage ad-infinitum. Whether the claim of non-petitioners for conferment of khatedari rights and consequential legal possession on the land on the basis of alleged ancient mortgage is tenable or not, will be decided in the main suit. In view of the rival claims of both the parties for holding possession over it - one claiming possession on the basis of being khatedar tenant and another claiming possession over it on the basis of mortgage carried out long long back, I find the land in-medio. This conclusion is further strengthened by the fact that severity of rival claims for possession of land has resulted into fierce altercations between both the parties leading to criminal cases. 11. Even if for the sake of argument it is presumed that non-petitioners are in possession of the land, I do not agree with the observations of both the lower courts that the possession of the non-petitioners on the disputed land should not be disturbed. Possession to be protected must have legitimacy about it. 11. Even if for the sake of argument it is presumed that non-petitioners are in possession of the land, I do not agree with the observations of both the lower courts that the possession of the non-petitioners on the disputed land should not be disturbed. Possession to be protected must have legitimacy about it. If anybody retains or holds-over possession of the mortgaged land even after expiry of the statutory period of mortgage as stipulated in Section 43 of the Act, such possession tantamounts to trespass according to Section 5(44) of the Act which inter alia describes trespasser as a person who retains possession of the land duly let out to him. Thus, the possession to be protected must have prima facie legitimacy and legality about it, otherwise it would put premium on lawlessness. Temporary injunction under Section 212 of the Act cannot be denied in such a way that it perpetuates the mischief and malady which the Act as a measure of land reforms seeks to remedy. 12. Thus, I find the disputed land in medio and deem it proper to appoint receiver on the disputed land. 13. In view of the above analysis the revision succeeds. Accordingly Tehsildar, Girva is appointed receiver of the disputed land until final disposal of the revenue suit on merits. 14. However, if the non-petitioners offer cash security of Rs. 1000/-per bigha per crop per year before Sub-Divisional Officer Girva to his satisfaction, this order of appointment of receiver may be withdrawn. Pronounced.