Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 1423 (RAJ)

Sultan Singh v. Adram

2009-05-26

G.K.GIWARI

body2009
TIWARI, M.—This is an appeal under Section 76 of the Rajasthan Land Revenue Act 1956 (in short 'the Act of 1956') against the impugned judgment dated 16.10.2007 of Divisional Commissioner Bikaner passed in first appeal No. 33/2007 'Sultan Singh vs. Adram'. 2. The facts in brief, leading to the second appeal are that an application under Section 136 of the Act of 1956 was filed by Ganga Ram, Ramjas and Mani Ram against Sultan Singh (the appellant-non-applicant) for recording share of applicants-respondents as 5/6th in the disputed land in place of 4/5th as recorded in the jamabandi Svt. 2029-to 2038 and change the share of Sultan Singh (appellant) to 1/6th in place of 1/5 as recorded in the above jamabandi. Assistant Collector vide his impugned judgment dated 15.6.1982 allowed the application ex-parte and ordered for changing shares of the parties as prayed for. Aggrieved against this judgment dated 15.6.1982 the appellant filed an appeal under Section 75 of the Act of 1956 before Divisional Commissioner Bikaner, which was dismissed by the Divisional Commissioner by his impugned judgment dated 16.10.2007. Hence the second appeal. 3. I have heard the learned counsel for both the parties. 4. The learned counsel for the appellant has argued that Assistant Collector passed the judgment dated 15.6.1982 under Section 136 of the Act of 1956 without issuing any notice to the appellant-non-applicant, depriving him of the opportunity of being heard. Thus, the order of Assistant Collector is against the principle of natural justice. The Assistant Collector has changed the share of khatedari rights of the parties under Section 136 of the Act of 1956 whereas under this section only clerical mistakes can be corrected. Share of khatedari right cannot be declared and changed under this section; as such the application filed under Section 136 of the Act 1956 was not maintainable before the Assistant Collector. When the first appeal was filed before Divisional Commissioner he did not pay attention to the illegality and irregularities mentioned above. Not only this, he even committed extreme material irregularity and illegality in holding that the first appeal before him was filed against a mutation order and as such he dismissed the appeal for not filing appeal against the impugned judgment dated 15.6.1982. This finding of Divisional Commissioner is patently wrong and illegal. The appellant has filed appeal only against the impugned judgment dated 15.6.1982 and not against any mutation order. This finding of Divisional Commissioner is patently wrong and illegal. The appellant has filed appeal only against the impugned judgment dated 15.6.1982 and not against any mutation order. As such both the impugned judgments of lowers Courts deserve to be quashed. 5. Arguing on behalf of the respondents, the learned counsel Shri N.K. Goyal candidly admitted that the appellant has filed first appeal against the impugned judgment dated 15.6.1982 of Assistant Collector and not against any order of mutation as held by Divisional Commissioner Bikaner. Thus, the finding of Divisional Commissioner based on alleged appeal against the mutation order was erroneous. He pleaded that there was nothing illegal in the impugned judgment dated 15.6.1982 of Assistant Collector. 6. I have given my thoughtful consideration to the arguments of learned counsels for both the parties, perused the impugned judgments of both the lower Courts and gone through the record available on the file. 7. Bare perusal of the impugned judgment dated 15.6.1982 of the Assistant Collector Hanumangarh shows that on an application filed under section 136 of the Act of 1956 by the applicants-respondents, Assistant Collector changed the share of applicants (respondents herein) from 4/5th to 5/6th and reduced the share of the appellant-non-applicant (appellant herein) from 1/5th to 1/6th so much as without issuing any notice to the non-applicant and without affording him any opportunity of hearing. This is allegedly done under the garb of correction of entry in jamabandi under Section 136 of the Act of 1956. 8. For ready reference, section 136 of the Act of 1956 is reproduced below:- "136. This is allegedly done under the garb of correction of entry in jamabandi under Section 136 of the Act of 1956. 8. For ready reference, section 136 of the Act of 1956 is reproduced below:- "136. [Correction of errors.—The land Records Officer may, at any time, correct or cause to be corrected in the prescribed manner any clerical errors and any errors which the parties interested admit to have been made in the record of rights or register, or which a Revenue Officer may notice during the course of his inspection in any Register: Provided that when any error is noticed by a Revenue Officer in any record of rights during the course of his inspection, no error shall be corrected unless a notice to show cause has been given to the parties.]" It is apparent from above said provision that Land Records Officer can correct any clerical error or any error which the parties interested admit to have been made in the record of rights and which is noticed by a Revenue Officer during the course of his inspection. It is further enjoined upon that no error shall be corrected unless a notice to show cause has been given to the parties. In the case under consideration the respondents applicants have not been able to show as to what was the entry in previous record of rights and in what manner was such entry changed in subsequent record of rights. In fact no error is found in the previous record of rights (jamabandi) and subsequent record. In fact what Assistant Collector as Land Records Officer has done is that he has changed the share of khatedari rights in the disputed land of the parties ex-parte depriving the rival party opportunity of hearing without so much as issuing a notice to the opposite party. This is manifestly illegal and irregular. Besides it, the relief that Assistant Collector has granted under Section 136 of the Act of 1956 by way of enhancing and reducing the shares in khatedari rights of the parties can only be given in a declaratory suit filed under Section 88 of the Rajasthan Tenancy Act 1955 (in short 'the Act of 1955'). Thus, the Land Records Officer acting under Section 136 of the Act of 1956 has usurped the power of Revenue Court under Section 88 of the Act of 1955. Thus, the Land Records Officer acting under Section 136 of the Act of 1956 has usurped the power of Revenue Court under Section 88 of the Act of 1955. As such the impugned judgment dated 15.6.1982 is not only patently illegal but ab-initio void and nullity in the eye of law. 9. Perusal of the impugned judgment dated 16.10.2007 of Divisional Commissioner Bikaner reveals that he has rejected the appeal simply on the ground that the appeal under Section 75 of the Act of 1956 is filed against an order of mutation whereas it ought to have been filed only against the impugned judgment dated 15.6.1982 of the Assistant Collector. Thus, on the very face of the record, is perverse and erroneous finding in view of the fact that the appellant has filed appeal against the impugned judgment dated 15.6.1982 of the Assistant Collector and not against any mutation order. It is interesting to observe that Divisional Commissioner at the very outset of his judgment has written that the appeal before him under Section 75 of the Act of 1956 is filed against the impugned judgment dated 15.6.1982 of the Assistant Collector but, strangely enough, arrives at the conclusion that the appeal has been filed against a mutation order and not against the judgment dated 15.6.1982 of Assistant Collector (Sub-Divisional Officer) and on this basis only appeal was dismissed; even the assailed judgment dated 15.6.1982 is available on the file of the Divisional Commissioner. Thus, the impugned judgment dated 16.10.2007 of Divisional Commissioner does not sustain being perverse and erroneous. 10. It is worth-noticing that the appeal against the impugned judgment dated 15.6.1982 of the Land Records Officer (Assistant Collector) was filed before Divisional Commissioner on 24.4.2007 after considerable delay and much beyond the period of limitation, though it was filed wrongly before Revenue Appellate Authority earlier from where it was withdrawn for filing before the Divisional Commissioner but Revenue Appellate Authority has not given any finding on the point of limitation. Strangely the Divisional Commissioner has neither stated anything about the limitation nor has given any finding about it in his judgment. 11. But it is apparent from above discussion that the impugned judgment dated 15.6.1982 of Land Records Officer is patently illegal and nullity in the eye of law and against such ab-initio void order period of limitation does not become bar. 11. But it is apparent from above discussion that the impugned judgment dated 15.6.1982 of Land Records Officer is patently illegal and nullity in the eye of law and against such ab-initio void order period of limitation does not become bar. A meritorious case should not be thrown away simply on the technical consideration of limitation. As such I consider it in the interest of justice to condone the delay and decide the case on merit only. 12. Although what is discussed above ought to have been given consideration and decided by the first appellate Court which gave erroneous finding as cited above ignoring the salient facts and merit of the case. But going through these cases of the lower Courts glaring illegalities, irregularities and anomalies have come to the knowledge of this Court. For example under the garb of correction of entries under section 136 of the Act of 1956 the Land Records Officer has changed shares in the khatedar rights among co-tenants. The Land Records Officer acting under the Act of 1956 has issued the power of Revenue Court of Assistant Collector. Relief of section 88 of the Act of 1955 has been given under Section 136 of the Act of 1956. The impugned judgment dated 15.6.1982 is passed by Land Records Officer without issuing notice and giving opportunity of hearing to the adversely affected opposite party in flagrant violation of natural justice. To such blatant and glaring illegalities and unlawfulness this Court cannot remain as a mute spectator. As such I consider it as a fit case for exercising power of general superintendence and control over the subordinate revenue Courts and revenue officers as contained in section 9 of the Act of 1956 and section 221 of the Act of 1955 and as such I deem it just and proper to quash both the impugned judgments of lower Courts. 13. In view of the foregone discussion, the appeal is allowed and the judgment dated 15.6.1982 of Land Records Officer (Assistant Collector Hanumangarh) and 16.10.2007 of Divisional Commissioner Bikaner are quashed. However, the parties are free to agitate their claim for declaration of khatedari rights under the relevant provisions of the Act of 1955 in the competent revenue Court of jurisdiction. Pronounced.