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2008 DIGILAW 1841 (RAJ)

Akhilesh Kumar v. H. H. Jhalawar

2008-08-02

G.K.TIWARI, KULDEEP SHARMA

body2008
Honble SHARMA, M.—This is an appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short `the Act) against the impugned order dated 20.8.1996 of Revenue Appellate Authority Kota passed in appeal No. 12/96. 2. The facts, in brief, leading to the second appeal are that respondent No. 1 plaintiff filed a suit under sections 88, 91 and 209 of the Act in the Court of Sub-Divisional Officer Jhalawar against the appellant and respondents No. 2 and 3 - defendants for declaration of khatedari rights in the disputed land bearing khasra No. 73 measuring 4 bighas 11 biswas located in village Gindor District Jhalawar. Sub-Divisional Officer Jhalawar decreed the suit vide his order dated 3.1.1996 against which an appeal was preferred by the appellant-defendant No. 3 before Revenue Appellate Authority Kota, who dismissed the appeal and upheld the impugned order of Sub-Divisional Officer Jhalawar vide his decision dated 20.8.1996, aggrieved against which this second appeal is filed. 3. During the course of this appeal, appellant filed an application under Order 41 Rule 27 of the C.P.C. for production of certain documents annexed with the application. This application under Order 41 Rule 27 of the C.P.C. was rejected by this Court vide its order dated 31.8.201 which was challenged by the appellant by filing a writ petition before Honble Rajasthan High Court. Honble Single Bench of Honble Rajasthan HighCourt accepted the writ vide its order dated 31.1.2002 and quashed the impugned order dated 31.8.2001 of this court and directed the Board of Revenue to decide the application filed under Order 41 Rule 27 of the C.P.C. afresh, discussing every document sought to be produced at the time of disposal of the main appeal. 4. We have heard learned counsel for both the parties. 5. The learned counsel for the appellant pleaded that a part of the disputed land i.e. 2 bighas 11 biswas land from khasra No. 73 measuring 4 bighas 11 biswas was duly allotted to the appellant and possession of the allotted land was handed over to him by the concerned revenue authorities. At the time of allotment the disputed land was the land of State Government duly recorded as such in the revenue record. This land was not the part of the inventory prepared in respect of the properties of ex-ruler of Jhalawar. At the time of allotment the disputed land was the land of State Government duly recorded as such in the revenue record. This land was not the part of the inventory prepared in respect of the properties of ex-ruler of Jhalawar. In this case 13 issues were framed but all the issues were illegally decided contrary to the evidence adduced. It is wrongly inferred by the trial Court that the appellant was minor at the time of allotment whereas in fact the appellant was major when allotment of land was made in his favour. It was also argued that the application under rule 14(4) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules 1970 (in short `the Rules of 1970) was filed before District Collector Jhalawar who dismissed the application for cancellation of the allotment and upheld the allotment of the land made in favour of the appellant who was major and bonafide landless agriculturist at the time of allotment. Thus the allotment of the land is formally held as legal and valid by the competent court of Collector Jhalawar. Initially the disputed land stood in the name of Home Department of the State Government thereafter it was recorded as Siwai Chak (Government land) in the year 1970. Now 22 years after recording of the land as Siwai Chak in the year 1970, respondent No. 1 and 2 defendants cannot say that this land was not a government land. It is also argued that in a declaratory suit under Section 88 of the Act relief of the eviction from the land is given whereas the same can be given only under Section 183 of the Act about which no issue was framed in the suit. It is also argued that this Court has wrongly rejected the application under Order 41 Rule 27 of the C.P.C. by which the appellant has sought to produce a copy of the inventory of ex-ruler of Jhalawar, Ceiling form No. 12 filed by ex-ruler of Jhalawar, Order of Collector Jhalawar passed in application filed under rule 14(4) of the Rules of 1970. The learned counsel cited 2002 WLC (SC) 726, 2006 RRT 189, 1994(4) SCC 649, 1995 RBJ 3 to support his argument that documents sought to be produced are relevant for the disposal of the matter in controversy. The learned counsel cited 2002 WLC (SC) 726, 2006 RRT 189, 1994(4) SCC 649, 1995 RBJ 3 to support his argument that documents sought to be produced are relevant for the disposal of the matter in controversy. They are all public documents and should be allowed to be produced to reach correct conclusion. It is argued that the respondent-plaintiff is not in possession of the land, hence no khatedari rights can be given. Citing 1983 RRD 744 and 757 and 1992 RRD 114 it was argued that the respondent-plaintiff never entered the witness box to prove his case. As such an adverse inference should be taken against him. To support this contention 1957 AIR (Raj.) 364 and 1981 AIR (SC) 22 was cited. It should be accepted and the impugned orders of lower courts should be quashed as the appellant has been a bonafide allottee of the disputed land since 1982. 6. Strongly opposing the arguments of the learned counsel for the appellant, the learned counsel for the respondents contended that the disputed land belonged to the ex-ruler of Jhalawar State. Under Section 6 of the Land Reforms and Acquisition of Land Owners Estate Act 1963, the respondent-plaintiff has become khatedar of the disputed land, as it formed the part of his estate. It was also argued that the entry of the name of Home Department as owner of the disputed land should be presumed to be the entry in favour of the ex-ruler of the estate. On abolition of jagirs and estates only ownership in the disputed land was extinguished and not the tenancy right which continues to be intact. The learned counsel cited 1978 RRD 36 in support of his contention. In plaint it was also stated that in case plaintiff-respondent is dispossessed, his possession should be restored with the eviction of the defendant. So there is nothing wrong in passing the impugned order providing relief of section 183 of the Act. The trial Court is competent to pass such an order under Section 209 of the Act. In support of this contention 2007(2) RRT 1021 was cited. Citing DNJ 2005(3)Raj. 1359, RRT 2005(2) Raj. 1236, WLC 2005(1) SC 383 and WLC 2005(1) SC 391, it was argued thatwhen there are concurrent findings of both the lower courts, Board should intervene. In was contended that application under Order 41 Rule 27 of the C.P.C. should be rejected. In support of this contention 2007(2) RRT 1021 was cited. Citing DNJ 2005(3)Raj. 1359, RRT 2005(2) Raj. 1236, WLC 2005(1) SC 383 and WLC 2005(1) SC 391, it was argued thatwhen there are concurrent findings of both the lower courts, Board should intervene. In was contended that application under Order 41 Rule 27 of the C.P.C. should be rejected. The learned counsel pleaded for dismissal of the appeal. 7. The learned Government Advocate argued that according to mutation No. 9 available on the record the disputed land is clearly the government land. So the reply of the admission of the plaint by the respondent-defendant No. 3 is contrary to the record available on the file. 8. We have given thoughtful consideration to the rival contentions, carefully perused the impugned order of the courts below and gone through the record available on the file. 9. At the very outset, it is necessary to decide the application filed under Order 41 Rule 27 of the C.P.C. as per the direction of Honble Rajasthan High Court given in writ petition No. 813/02 decided on 30.1.2002. In this case it is worthwhile to state it here that on 4.3.08 respondent-non-applicant was given an opportunity of rebuttal to produce any document in response to the application of the appellant filed under Order 41 Rule 27 of the C.P.C. but the respondent did not prefer to file any document by way of rebuttal and opted to finally argue the case. 10. The appellant seeks to produce a copy of judgment dated 15.1.1996 of District Collector Jhalawar by which he dismissed the application under rule 14(4) of the Rules of 1970 and upheld the allotment in favour of the appellant, and order of Revenue Appellate Authority Kota by which the appeal against the order of Collector was dismissed. As both the documents are court judgments with regard to the disputed land they are allowed to be taken on record. The appellant seeks to present a copy of the part of the related inventory of the ex-ruler. This is also a public document which was not already in possession of the appellant. It relates to matter in controversy; as such this is also allowed to be taken on record. The appellant seeks to present a copy of the part of the related inventory of the ex-ruler. This is also a public document which was not already in possession of the appellant. It relates to matter in controversy; as such this is also allowed to be taken on record. The appellant wants to produce a copy of mutation No. 9 but this is already on record and as such no separate order is required to be given in respect of mutation No. 9. The appellant seeks to produce copy of the Ceiling from No. 12 filed by the respondent-plaintiff in the ceiling case initiated against him. This is also a document filed before the court and relates to the matter incontroversy. Since this document was not in possession of the appellant as it was filed by the respondent-plaintiff bur relates to matter in controversy, this document is allowed to be taken on record. Since all the documents sought to be produced by the appellants are found to be relevant to decide the real issue in the controversy it is felt in the interest of justice to accept the application filed under Order 41 Rule 27 of the CPC and allow the documents to be taken on record in consonance with the pronouncements of Honble Supreme Court of India in 1995(2) RBJ 3 and 2002 WLC (SC) Civil 726. 11. In this case the trial Court had framed 13 issues but each of the issues has been superficially and cursorily dealt with by the trial Court. Concurring judgment of the learned Revenue Appellate Authority is also cryptic and stetchy. Though it is not necessary for the first appellate authority where he concurs in the order of the trial Court, to give an issuewise separate finding butmain issue in controversy has to be dealt with exhaustively and cogently- which does not seem to have been done in this case.To our minds entire issues and controversy boil down to two main points as under:- Point No. 1:- Whether the respondent-plaintiff was the owner of the disputed land and as such he became, by the operation of law, khatedar tenant of the disputed land which belonged to him as part of his estate. Point No. 2:- Whether the disputed land measuring 2 bighas 11 biswas in the original khasra No. measuring 4 bighas 11 biswas wasthe government land which was rightly allotted to the appellant pursuant to which appellant became khatedar tenant of the suit land. Point No. 1. Perusal of copy of mutation No. 9 shows the disputed land as government land and copy of jamabandi (Ex. 12) shows that the disputed land is recorded Siwai Chak in the name of State Government. A copy of khatauni jamabandi Svt. 2039 to 2049 records the land belonging to State Government, Home Department, No record is produced to prove that the disputed land was recorded in the name of respondent-plaintiff. The learned counsel for the respondent-plaintiff has argued that the plaintiff as ex-ruler of Jhalawar State became khatedar tenant of the disputed land in keeping with the provision of Section 6 of the Act of 1963. Section 6 of the Act of 1963 is reproduced as below:- "6. Khatedari rights in estates:-(1) Every person who, at the commencement of this Act, is or is, entered in the revenue records as a tenant or a tenant of khudkasht, but not a sub-tenant of any forming part of an estate shall, unless he had become a khatedar tenant thereof previously to such commencement by virtue of any law or otherwise be deemed to be the khatedar tenant of such land holding from the landowner of the estate: "Provided that khatedari rights under this sub section shall not accrue to any person to whom land is on has beenlet out temporarily in the Ganga Canal, Bhakra, Chambal, Jawai or Rajasthan Project Area; and no khatedari rightsshall be accrue if the land belongs to any of the categories specified in section 16 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955). (2) "In respect of land under the personal cultivation of the landowner and in which there are no tenants, the landowner shall, as from the date of vesting be the khatedar tenant thereof: "Provided that nothing in this sub section shall affect the provisions contained in Chapter IIIB of the Rajasthan Tenancy Act, 1955." The relevant provision with reference to landowner is sub section (2) of Section 6 of the Act of 1963 which states that in respect of the land in personal cultivation of the landowner the landowner shall as from the date of vesting be the khatedar tenant. In this regard it is to be ascertained whether the disputed land was in the personal cultivation of the landowner. The land in personal cultivation of the landowner or estate holder is termed khudkasht land according to Section 5(23) of the Act of 1955; but no record is produced to prove that the disputed land was in personal cultivation of the landowner or it was a khudkasht land of the former estate holder as defined under Section 5(23) of the Act of 1955. The estate holder holding khudkasht becomes khatedar tenant under Section 13 of the Act of 1955 and a holder of khudkasht becomes khatedar tenant under Section 15 of the Act of 1955.A landowner in personal cultivation of the land (estate) becomes khatedar tenant under Section 6 of the Act of 1963. But no record is produced to prove that the disputed land was in the personal cultivation of the landowner or the respondent-plaintiff was the holder of the khudkasht in respect of the disputed land. Besides it, the disputed land is not shown as his own land in the statement (return) submitted before the authorised officer (Ceiling) under Section 10 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act 1973. Perusal of the extract copy of the inventory of the private properties of the ex-ruler of Jhalawar does not show the disputed land as part of the inventory. Thus, it is not proved that the disputed land was the part of the estate under personal cultivation of the respondent-plaintiff who becomes khatedar tenant of the disputed land either under section 6 of the Act of 1963 or under Section 13 or 15 of the Act of 1955. Thus, it is not proved that the disputed land was the part of the estate under personal cultivation of the respondent-plaintiff who becomes khatedar tenant of the disputed land either under section 6 of the Act of 1963 or under Section 13 or 15 of the Act of 1955. Thus, in this respect findings of both the courts below are legally incorrect and contrary to the evidence available on the record. Point No. 2:- Mutation No. 9 of village Gindor, khasra girdawari (Ex. 18) and jamabandis available on the file show the disputed land as government land. A copy of jamabandi Svt. 2039 to 2042 (Ex. 14) shows the appellant as gair khatedar of the disputed land. Admittedly, a part of the disputed land (2 bighas 11 biswas out of total 4 bighas 11 biswas of the disputed land bearing khasra No. 73) was allotted to the apellant-defendant. It is argued by the respondent-plaintiff that this allotment was illegal, as it was made in favour of a minor. In this respect the decision dated 15.1.1996 of District Collector Jhalawar given in case No. 345/92 is significant. The order of allotment of the part of the disputed land made in favour of the appellant-defendant was challenged before District Collector Jhalawar under rule 14(4) of the Allotment Rules of 1970. District Collector Jhalawar vide his decision dated 15.1.1996 dismissed the application for cancellation of the allotment and upheld the order of allotment of the disputed land in favour of the appellant defendant. An appeal against this order dated 15.1.1996 of District Collector Jhalawar filed before Revenue Appellate Authority Kota was also dismissed. Thus, the judgment dated 15.1.1996 of the District Collector Kota attained finality. In this judgment of District Collector Jhalawar it is explicitly held that the appellant-defendant was not a minor but a major (adult) at the time of allotment. It was also held that he was a bonafide landless agriculturist eligible for the allotment of the land. Thus, plea of the respondent-plaintiff that the appellant-defendant was a minor and hence ineligible for allotment, is untenable. It is also evident from the discussion and analysis of point No. 1 that the disputed land was the government land available for allotment. It was also held that he was a bonafide landless agriculturist eligible for the allotment of the land. Thus, plea of the respondent-plaintiff that the appellant-defendant was a minor and hence ineligible for allotment, is untenable. It is also evident from the discussion and analysis of point No. 1 that the disputed land was the government land available for allotment. In this respect admission of Tehsildar Jhalawar in written statement that the disputed land was not government land is contrary and in utter disregard of the revenue records available on the file. The learned Government Advcoate has candidly admitted in his argument that the disputed land is a government land, as is evident from Mutation No. 9 and other revenue record available on the file. The plea of the respondent-plaintiff that the appellant-defendant was not in possession of the disputed land is also not tenable in view of the fact that the handing over of possession of the allotted land is precondition before attestion of the mutation. Thus, obviously, the very fact that the mutation was attested in favour of the allottee presupposes that possession was duly handed over by the concerned revenue authorities and thereafter the land was recorded in the name of the allottee (appellant) by way of gair-khatedari right. There is no illegality committed in making allotment to a bonafide landless agriculturist in keeping with the provisions of Allotment Rules of 1970. This allotment was duly upheld by the District Collector Jhalawar and by the Revenue Appellate Authority. Thus, the findings of both the lower courts in this regard are illegal and in contradiction to evidence on record. 12. The learned counsel for the respondent has argued that the second appellate court should not interfere in the concurrent findings of the courts below, citing AIR 1967 (SC) 1124 , DNJ 2005(3) page 1359, RRT 2005(2) Raj. 1236, WLC 2005(1) SC 383 and WLC 2005(1) SC 391. With all due regard to the authoritiecited, it is submitted that DNJ 2005(3) page 1359, 2005(2) RRT 1236, WLC 2005(1) SC 391 apply only when substantial question of law is not involved in the second appeal but in this case substantial question of law is involved; hence these citations do not apply. 2005(1) WLC (SC) 383 applies when there is no substantial question of law and concurrent findings are in keeping with the evidence. 2005(1) WLC (SC) 383 applies when there is no substantial question of law and concurrent findings are in keeping with the evidence. But in this case the concurrent findings of factsare contrary to and in utter disregard of the evidence adduced. Hence it does not apply. 13. In view of the above discussion and analysis, it is apparent that the impugned decisions of both the lower courts are illegal and contrary to the weightage of evidence available on the file. 14. Resultantly, the appeal is accepted and the impugned order dated 20.8.1996 of Revenue Appellate Authority Kota passed in appeal No. 12/96 and order dated 3.1.1996 of Sub-Divisional Officer Jhalawar passed in suit No. 284/92 are quashed.