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2008 DIGILAW 832 (RAJ)

Sube Singh v. Shri Mahadev

2008-03-18

G.K.TIWARI

body2008
Honble , M.—These are two revision petitions under Section 230 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act) against the orders dated 11.9.2001 and 27.4.2006 passed by Settlement Officer-cum-Revenue Appellate Authority, Alwar in case No. 57/2000 and 170/2003 respectively. 2. The above two revisions have been taken together for a common decision in view of the fact that the parties in both the cases are just the same and land in dispute is also the same. A copy of the decision be placed in the respective files of the case. 3. Briefly stated facts of the case leading to these revisions are that the disputed land bearing khasra No. 93, 651 and 1159 situated in village Rodwal and khasra No. 184 situated in village Mukundpura of Alwar District stood in the name of Shri Ram as khatedar. On the death of Shri Ram the land was mutated in favour of Mahadev on the basis of registered will of the deceased tenant. This was challenged by the petitioner claiming that he is adopted son of the deceased tenant Shri Ram and as such a legal heir to the deceased. He has also filed a suit under Section 88 and 188 of the Act in the court of Assistant Collector with regard to the disputed land. During the pendency of the suit two applications under Section 212 of the Act were filed for the grant of temporary injunction. Assistant Collector vide his order dated 23.6.2001 passed an order of maintaining status quo of the land till the disposal of the main suit. This was challenged before Revenue Appellate Authority, Alwar who vide his decision dated 11.9.2001 quashed the order of Assistant Collector and granted temporary injunction in favour of the non-petitioner-appellant. In another application under Section 212 of the Act, Assistant Collector appointed receiver on 23.9.2003 on the disputed land. This order was challenged before Revenue Appellate Authority, Alwar who vide his order dated 27.4.2006 quashed the order of Assistant Collector. The petitioner-respondent has challenged both the impugned orders of Revenue Appellate Authority, Alwar dated 11.9.2001 and 27.4.2006 respectively through present revision petitions. 3. I have heard both the learned counsels. 4. The learned counsel for the petitioner has argued that the petitioner is an adopted son of the deceased Shri Ram who had executed a registered deed of adoption in favour of Sube Singh. 3. I have heard both the learned counsels. 4. The learned counsel for the petitioner has argued that the petitioner is an adopted son of the deceased Shri Ram who had executed a registered deed of adoption in favour of Sube Singh. As such he is the legal heir to the deceased and the land in question should have been entered in his name. It is also alleged that his foster father had given him possession of the land, but as he is a soldier mostly posted outside the villages taking advantage of it, the non-petitioner unauthorisedly tried to take possession of the land against which Asstt. Collector rightly issued injunction order vide his decision dated 23.6.2001; and subsequently when the land was found in medio he appointed receiver on the land vide his decision dated 23.9.2003. Under Section 46 of the Act a person who is a member of armed forces of the Union is exempted from the restriction imposed by Section 45 of the Act in respect of subletting by a tenant. As such the disputed land should be considered to be in the personal cultivation of the petitioner. Thus being an adopted son and in personal cultivation of the disputed land, temporary injunction should have been granted in favour of the petitioner. As such both the orders of learned Revenue Appellate Authority, Alwar dated 11.9.2001 and 27.4.2006 be quashed. 5. Opposing the contentions of the learned counsel for the petitioner, the learned counsel for the non-petitioner argued that presently the non-petitioner is the recorded khatedar of the disputed land by virtue of a registered will which was executed by the deceased tenant of the disputed land. He also argued that the deceased Shri Ram had himself, during his lifetime, filed a suit in the civil court for cancellation of the adoption deed which is alleged to be executed by him. This adoption deed is still under challenge before competent civil court. So it is clear that the original khatedar Shri Ram never accepted the adoption deed and never treated the petitioner as his adopted son. The non-petitioner is his real brother and the disputed land is in his cultivatory possession. So the prima facie case is in favour of the non-petitioner and not the petitioner. So it is clear that the original khatedar Shri Ram never accepted the adoption deed and never treated the petitioner as his adopted son. The non-petitioner is his real brother and the disputed land is in his cultivatory possession. So the prima facie case is in favour of the non-petitioner and not the petitioner. He also argued that Assistant Collector vide his decision dated 23.6.2001 passed an order of status quo under Section 212 of the Act. An order of status quo cannot be passed under Section 212 of the Act contrary to the provisions mentioned therein, as is held in 1985 RRD 30. The disputed land is not in medio, as he is in occupation of the land. This is also argued that the petitioner cannot have the benefit of Section 46 of the Act as this benefit is available to only a recorded tenant and petitioner is not a recorded tenant so far. The prima facie case as held in 1986 RRD 629 is in favour of the non-petitioner. As such both the impugned decisions are in order and should not be interfered with. 6. I have given thoughtful consideration to the rival contentions of both the learned counsels, perused both the impugned orders of the lower Court and carefully gone through the record available on the file. 7. The disputed land is claimed by the petitioner on the basis of the adoption deed which was challenged by the executor of this deed Shri Ram during his lifetime and the matter is still pending before the competent civil court. On the contrary non-petitioner has claimed this land on the basis of registered will which is executed in his favour by the deceased tenant. In the present revenue record non-petitioner is recorded as khatedar tenant of the disputed land. Both the rival claims about the land will be decided in the main suit pending before Assistant Collector, Alwar. In this case we have to see in whose favour the prima- facie case appears to be. In the present revenue record non-petitioner is recorded as khatedar tenant of the disputed land. Both the rival claims about the land will be decided in the main suit pending before Assistant Collector, Alwar. In this case we have to see in whose favour the prima- facie case appears to be. In this case prima-facie title is in favour of non-petitioner, as he is recorded khatedar of the disputed land on the basis of the will executed in his favour which has not been challenged anywhere; whereas the adoption deed on the basis of which petitioner has staked his claim is challenged by the alleged executor during his lifetime and the matter is still pending before the civil court. 8. The perusal of the impugned order of Assistant Collector dated 23.6.2001 shows that it is very casually and clumsily written order of around nine lines with a number of cross and cutting. By this impugned order he seems to have maintained status quo of the disputed land till disposal of the final suit. This is no order - rather a travesty of the temporary injunction - contrary to the provisions of Section 212 of the Act. It is held in 1985 RRD 30 that an order of status quo cannot be passed under Section 212 of the Act till decision of the suit without giving any finding as to which party is prima facie in possession of the disputed land, and without making out a prima facie case among the rival claims. So this order was correctly dismissed by Revenue Appellate Authority vide his decision dated 11.9.2001. 9. With regard to decision dated 23.9.2003 of Assistant Collector, he has not given any cogent reason how he considered land to be in medio. Appointment of a receiver is a harsh remedy; and a genuine holder of the possession of the land should not be casually ousted from the land in disregard to the ingredients of Section 212 of the Act. Learned Revenue Appellate Authority vide his decision dated 27.4.2006 has reasonably analyzed the factum of possession and did not find the land in medio. I do not find any reason to interfere in his finding. 10. Learned Revenue Appellate Authority vide his decision dated 27.4.2006 has reasonably analyzed the factum of possession and did not find the land in medio. I do not find any reason to interfere in his finding. 10. In view of the above discussion, it is evident that prima facie case, based on prima facie title and prima, facie possession together with balance of convenience and irreparable injury seems to be in favour of the non-petitioner and not the petitioner. As the disputed land stands in his name in jamabandi prima facie title seems to be in favour of non-petitioner. Possession also seems to be in favour of the non-petitioner in view of the fact that the petitioner is claiming exemption under Section 46 of the Act which he is not entitled to, as he is not the tenant so far. In such a situation balance of convenience also does not appear to be in favour of the petitioner. If a genuine holder of possession is thrown out from the agricultural land which presently stands in his name in jamabandi, it will cause irreparable injury to his interest and not to the petitioner. 11. In view of the above analysis, I see no reason to interfere in the impugned decisions of Revenue Appellate Authority dated 1.9.2001 and 27.4.2006, as he has neither committed any jurisdictional error nor has acted with material irregularity in passing the impugned orders. 12 In the result, both the revisions fail and are dismissed accordingly. Pronounced.