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Rajasthan High Court · body

2008 DIGILAW 1722 (RAJ)

Sonki v. B. O. R.

2008-07-17

DINESH MAHESHWARI

body2008
Honble MAHESHWARI, J.—Though listed in Court No.4, learned counsel for the petitioners has made a mention stating urgency. 2. Having heard learned counsel for the petitioners and having perused the material placed on record, this Court is clearly of opinion that this writ petition remains totally bereft of substance and does not merit admission. 3. Briefly put, the relevant aspects of the matter are that late Shri Kana Ram, the predecessor of the petitioners filed a suit under Section 88/188 of the Rajasthan Tenancy Act before the Sub-Divisional Officer, Parbatsar claiming his entitlement to the land in dispute as adopted son of Dhanna Ram, husband of defendant No.1 Smt. Ladi. The suit was put to contention by the defendant No.1 who stated in the written statement, inter alia, that the plaintiff was extending threats of dispossessing her and made the following prayer:- ^^vr% tokc izLrqr dj fuosnu gS fd oknh dk okn i= [kpkZ lfgr [kkfjt Qjek;k tkos o LFkk;h fu"ks/kkKk ds oknh ds f[kykQ izfrokfnuh ua- 1 ds gd esa tkjh Qjek;h tkos fd bl 58½1 ch?kk tehu ij oknh izfrokfnuh ua- 1 ds gdwd [kkrsnkjh bUdkj ugha djs vkSj izfrokfnuh ua- 1 dks bl Hkwfe esa dkr djus esa o vU; leLr gdwd [kkrsnkjh miHkksx djus esa fdlh Hkh fdLe dh vM+pu u rks [kqn djs u vius ,tsUVksa ls djkosaA blds fy, dksVZ Qhl 1@& ,d #i;k dk izLrqr gSA** 4. On the pleadings of parties, the learned Trial Court had framed the issues and the matter was pending when the present petitioners (plaintiffs) proceeded to move an application (Annex.5) on 22.06.2006 before the learned Trial Court seeking permission to withdraw the suit; and on 22.06.2006 itself, the learned Trial Court proceeded to pass an order (Annex. 6) on the application and while dismissing the suit as withdrawn, ordered that the file be consigned to record. 5. The defendant No.1 moved an application (Annex.7) on 23.06.2006 before the learned Trial Court with the submissions that her counter claim was pending and she wanted the same to be considered on merits and hence, the file could not have been consigned to record. 5. The defendant No.1 moved an application (Annex.7) on 23.06.2006 before the learned Trial Court with the submissions that her counter claim was pending and she wanted the same to be considered on merits and hence, the file could not have been consigned to record. The learned Sub-Divisional Officer, Makrana by his order dated 23.06.2006 (Annex.8) proceeded to accept the application moved by the defendant No.1 finding an error apparent on the face of record in the order dated 22.02.2006; and ordered the matter to be registered again and notices to be issued to the plaintiffs and the defendant no.2 for hearing on the counter claim. 6. The present petitioners challenged the said order dated 23.06.2006 before the learned Revenue Appellate Authority, Nagaur in Appeal No.60/2006 that came to be decided on 26.09.2006 (Annex.9). The learned Revenue Appellate Authority was of opinion that the learned Trial Court ought to have considered as to whether the written statement contained and carried any counter claim because the specific expression counter claim was not used in the written statement. The learned Revenue Appellate Authority proceeded to remand the matter to the learned Trial Court while setting aside the order dated 23.06.2006 and directed the learned Trial Court to decide the matter after hearing the parties. It appears that the defendant No.1 attempted to challenge the order so passed by the Revenue Appellate Authority before the Board of Revenue (the Board) in Revision Petition No.8983/2006 but the Board rejected such revision petition by the order dated 07.01.2008 (Annex.10). 7. Thereafter, the learned Trial Court considered the matter in its order dated 11.06.2008 (Annex.11) and, inter alia, observed that no such issue was framed that could be corelated with the alleged counter claim of the defendant No.1; that the submissions as made only in the last part of paragraph-25 of the written statement could not be considered as a counter claim; and that no issue was framed in relation to the alleged counter claim. The learned Trial Court, therefore, observed that the matter did not require restoration to its number and again ordered the file to be consigned to record. 8. The learned Trial Court, therefore, observed that the matter did not require restoration to its number and again ordered the file to be consigned to record. 8. The aforesaid order dated 11.06.2008 (Annex.11) has been challenged by the defendant No.1 in Revision Petition No.5843/2008 before the Board of Revenue; and, with the said revision petition, the defendant No.1 has also moved an application under Section 151 CPC with the submissions that the Tehsildar, Makrana and Land Record Inspector, Baddu be directed to continue to maintain the land in question as receivers as they had continued to do so till date. 9. The learned Member of the Board has proceeded to consider the Revision Petition and the prayer for interim relief by the impugned order dated 20.06.2008 (Annex.13). After noticing the aforesaid prayer as made in the written statement and the provisions of Order VIII Rule 6-A and 6-D CPC, the learned Member has stated his prima facie opinion that the submissions as made by the revisionist-defendant No.1 in her written statement appeared to be those of a counter claim and the impugned order prima facie appeared to be erroneous. The learned Member has proceeded to admit the revision petition for consideration and, for the non-petitioners Nos.1,2 and 3 (the present writ petitioners) being present, has ordered issuance of notice to the non-petitioner No.4. On the application under Section 151 CPC, the learned Member has been of opinion that inherent powers under Section 151 CPC were intended to avoid difficulties particularly if arising due to procedure; and has directed the Tehsildar, Makrana and Land Record Inspector, Baddu to continue to maintain the land as receivers till further orders of the Board and not to hand over possession of the land to the non-petitioners Nos.1 to 3 (present petitioners); and, while issuing notice on application under Section 151 CPC to the non-petitioner No.4, has fixed the matter for consideration on 29.07.2008. 10. Seeking to assail the aforesaid order dated 20.06.2008, learned counsel for the petitioner strenuously contended that the receiver was appointed only on an application made by the plaintiff in the suit and the suit itself having been withdrawn, the said order of appointment of receiver based on his application no longer survives and, therefore, such a receiver could not have been ordered to be continued by the learned Member of the Board. The submissions do not make out a case in favour of the petitioner. 11. It remains a question yet to be decided by the Board whether or not the order dated 11.06.2008 as passed by the Sub-Divisional Officer suffers from any illegality or irregularity; but the learned Member of the Board has prima facie found that the matter requires consideration and has admitted the revision petition. The order of admission of revision petition in view of the pleadings of the parties remains unexceptionable. 12. So far grant of interim relief is concerned, even if the receiver was appointed on an application moved by the plaintiffs-petitioners and even when they have withdrawn the suit, the fact nevertheless remains that revision petition has been admitted for consideration and with such admission of revision petition, the litigation concerning the land in question cannot be said to have come to an end. 13. Having regard to the circumstances of the case when the learned Member of the Board has found it just and proper to continue with the receiver on the land in question and has prohibited the Tehsildar and Land Record Inspector from handing over possession of the land in question to the present petitioners, the approach of the learned Member could only be approved as being perfectly in accord with the fundamental principles relating to protection of the property and preventing alteration of the status regarding subject-matter of dispute as obtainable at the relevant stage. Moreover, it appears that the learned Member of the Board has yet issued notice on the application under Section 151 CPC to the non-petitioner No.4 and has fixed the matter for further consideration on 29.07.2008. 14. There does not appear any reason or justification to consider any interference in the ad-interim order as passed by the learned Member of the Board. 15. The writ petition fails and is, therefore, rejected.