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2009 DIGILAW 1467 (RAJ)

Sawanta v. Derawar Singh

2009-06-15

G.K.TIWARI, RAKESH HOOJA

body2009
HOOJA, C.—Both these special appeal filed under Section 10 of the Rajasthan Land Revenue Act 1956 (in short `the Act') against the impugned judgments dated 23.4.01 and 22.11.01 of the learned Single Bench of this court are taken together for common judgment in view of the fact that the appellants and the State Government are the same in both the special appeals. The facts and law points involved in special appeals are also the same. A copy of the judgment may be kept separately in each of the files. 2. Briefly stated, the facts leading to the special appeals are that Tehsildar Shiv (District Barmer) filed an application under Rule 14(4) Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules 1970 (in short `the Rules of 1970') before Additional Collector Barmer on the ground that the disputed land was got allotted to Jetha (deceased) son of Mala fraudulently even though he had 179 bighas of land at the time of allotment and, thus, was not a landless person. Additional Collector Barmer by his judgment dated 26.9.1995 cancelled the allotment on the ground that Jetha holding 179 bighas of land was not a landless person and allotment was procured through fraud and misrepresentation of facts. Aggrieved against this judgment of Additional Collector, first appeal under Section 75 of the Act was filed before Revenue Appellate Authority who allowed this appeal and quashed the judgment dated 26.9.1995 of Additional Collector by his judgment dated 25.6.1997 which was challenged before this Court under section 9 of the Act by Deravar Singh. Padam Singh, Mohan Singh, Chuna and Pema. Simultaneously the State Government filed a second appeal under section 76 of the Act against the judgment dated 25.6.1997 of Revenue Appellate Authority before learned Single Bench of this Court. Learned Single Bench of this court set aside the judgment dated 25.6.1997 of Revenue Appellate Authority and upheld the judgment of 26.9.1995 of Additional Collector Barmer by its judgment dated 23.4.2001 in application No. 12/97, and judgment dated 22.11.2001 in appeal No. 139/97 respectively. Aggrieved against these judgments dated 23.4.2001 and 22.11.2001 of learned Single Bench of this Court two special appeals under Section 10 of the Act are preferred in Division Bench of this Court. 3. We have heard the learned counsel for the rival parties. 4. Aggrieved against these judgments dated 23.4.2001 and 22.11.2001 of learned Single Bench of this Court two special appeals under Section 10 of the Act are preferred in Division Bench of this Court. 3. We have heard the learned counsel for the rival parties. 4. The learned counsel for the appellants has contended that the lower courts have wrongly inferred that Jetha had 179 bighas of land at the time of allotment; this is factually incorrect. The impugned allotment was made to Jetha, who was grandfather of the appellants, on 8.3.1963. Now his grand-children are in possession of the land and they have already acquired khatedari rights. It was also pleaded that the allotment cannot be cancelled after conferment of khatedari rights. The learned Single Bench has not discussed any of the rulings cited by the appellants and set aside the judgment of Revenue Appellate Authority without any application of mind. As such the impugned judgments dated 23.4.01 and 22.11.01 of learned Single Bench should be set aside and the judgment dated 23.6.1997 of Revenue Appellate Authority should be upheld. The learned counsel for the appellants has pleaded that an allotment cannot be cancelled after long lapse and conferment of khatedari rights. He cited 1995 RBJ 780 (H.C.), 2005 RBJ 435 RLW 2005(2) RJ 12 (HC), 2002 RRD 108, 2008 RRT (2) 834, 2009 RBJ 201 and 2009 RBJ 112 in support of his contention. He also contended that finding of the learned Single Bench of Revenue regarding having excess of land in jamabandi Svt. 2020-23 is pre-se wrong, misread and misquoted. He cited 2005 RLR(1) 677 (H.C.), 2002 RRT (1) 420, 1993 RRD 246 and 2003 RRT (2) 881 (SC) in support of his contention. 5. Vehemently countering the arguments of the appellants, the learned counsel for the respondents argued that the allotment procured through fraud and misrepresentation can be cancelled even after conferment of khatedari rights. The allottee Jetha had held 179 bighas of land in his name at the time of allotment; as such he was not a landless person at the time of allotment. There is concurrent finding of facts in respect of quantum of land held by the allottee at the time of allotment- which is 179 bighas. No interference can be made in a special appeal in respect of this concurrent finding of facts of lower courts. There is concurrent finding of facts in respect of quantum of land held by the allottee at the time of allotment- which is 179 bighas. No interference can be made in a special appeal in respect of this concurrent finding of facts of lower courts. The very allotment was bad in the eye of law obtained through fraud and in such fraudulent allotment there is no bar of limitation and such allotment can be cancelled at any time. The learned counsel cited 2002 RRD 1 (HC, D.B.), 2000 RRD 151 (HC), 2007(2) RRT 1183, 2009(1) RRT 64 (HC), 2009(1) RRT 113 (H.C., D.B.), 2009(1)RRT 269 (H.C., D.B.) in support of his contention. The learned counsel also contended that the scope of special appeal is quite limited. There is no legal point involved in special appeal occasioning interference. He cited 2007 RRD 707 (DB) and 2004 RRD 796 = RLW 2005(1) RJ 421 (DB) in support of his contention. It was also pleaded that learned Single Bench has not committed any illegality in passing the impugned judgments to warrant interference in special appeals. 6. We have given thoughtful consideration to the rival contentions, perused the impugned judgments of the learned Single Bench of this court and gone through the record available on the file. 7. It is an admitted fact that late Jetha was allotted 23 bighas of the disputed land way back in Svt. 2019 (corresponding year 1962) and after around 29 years of this allotment Additional Collector Barmer on the complaint of Tehsildar Shiv (Barmer) cancelled the allotment by his judgment dated 26.9.195. The main reason for cancellation of this allotment was that it was procured through fraud and misrepresentation in view of the fact that Jetha already had 179 bighas of agriculture land in his khatedari rights. Revenue Appellate Authority has not denied in his reversing judgment dated 25.6.1997 that Jetha did not have 179 bighas of land at the time of allotment. He simply maintained that by now grand children of Jetha had occupied the land with accrual of khatedari rights. So allotment order should not be cancelled after such a long interval and conferment of khatedari rights. The learned Single Bench quashed the judgment of Revenue Appellate Authority by the impugned judgment dated 23.4.01 and 22.11.01 holding that conferment of khatedar rights and time elapsed are immaterial when allotment is procured through fraud and misrepresentation. So allotment order should not be cancelled after such a long interval and conferment of khatedari rights. The learned Single Bench quashed the judgment of Revenue Appellate Authority by the impugned judgment dated 23.4.01 and 22.11.01 holding that conferment of khatedar rights and time elapsed are immaterial when allotment is procured through fraud and misrepresentation. Now in the instant special appeals, we have to decide whether learned Single Bench of this Court has committed any illegality while passing the impugned judgments dated 23.4.01 and 22.11.01. 8. The most points before us for consideration are whether the deceased Jetha was a landless person at the time of allotment or had 179 bighas of land in khatedari rights; whether an allotment can be cancelled under Rule 14(4) of the Rules of 1970 after conferment of khatedari rights, and whether learned Single Bench has committed any illegality in passing the impugned judgments dated 23.4.01 and 22.11.01. 9. As far as possession of land by Jetha in his tenancy rights at the time of allotment is concerned, the report of Tehsildar Shiv, findings of Additional Collector Barmer and inference of learned Single Bench are concurrent in holding that the deceased Jetha had 179 bighas of land at the time of allotment of the disputed land. The learned counsel has vehemently opposed this finding on the plea that jamabandi Svt. 2020-23 is misread and misinterpreted and when inference of facts by trial court is contrary to the evidence on record, such finding does not sustain. 10. Having perused the record and impugned judgments of lower courts we find that lowers courts have not drawn any inference which is contrary to the facts on record. As such citations adduced by the learned counsel in this record are not applicable to the instant case. The copies of jamabandi for the period of Svt. 2020-23 furnished in the case file corroborate the concurrent findings of the Court below. Revenue Appellate Authority has not given any view in his judgment whether Jetha was landless or had 179 bighas of land. The perusal of the reply dated 21.8.1995 of the non-applicants in proceedings before Additional Collector Barmer under Rule 14(4) of the Rules of 1970 reveals that non-applicants have not specifically denied the allegations that Jetha did not have 179 bighas of land in his name. They have not specifically mentioned that Jetha was a landless person. The perusal of the reply dated 21.8.1995 of the non-applicants in proceedings before Additional Collector Barmer under Rule 14(4) of the Rules of 1970 reveals that non-applicants have not specifically denied the allegations that Jetha did not have 179 bighas of land in his name. They have not specifically mentioned that Jetha was a landless person. The argument of the learned counsel that Jetha acquired 179 bighas of land subsequent to his allotment between Svt. 2024 to 2030, passes comprehension. When a person is landless in Svt. 2020, how can he suddenly acquire 179 bighas of land in next 6-7 years? It is simply improbable unless Jetha already had sizeable chunk of the land -much beyond the upper limit of a landless person. We are inclined not to agree with the learned counsel in view of the revenue record (jamabandi) enclosed in the file and concurrent finding of facts by the lower courts in respect of the factum of possession of 179 bighas of agricultural land in the name of the allottee Jetha. It is worthwhile to emphasize here specifically that in special appeal no interference can be made in the concurrent findings of facts of the lower courts. 11. New next point before us for consideration is whether the allotment can be cancelled after a lapse of around 29 years of the allotment. The learned counsel for the appellants has contended that the allotment cannot be cancelled after a long lapse and conferment of khatedar rights. But when an allotment is obtained by misrepresentation of fact and by playing fraud on the allotment authority, conferment of khatedari rights which is only consequential to allotment, and long lapse of time, cannot be considered sufficient to save such an allotment order which is basically bad in the eye of law, as is held by Hon'ble High Court of Rajasthan in D.B. Civil Special Appeal No. 616 of 2000 as reported in 2002 RRD 1. Similarly Hon'ble Rajasthan High Court has held in 2000 RRD 151 that when a person is not a landless person at the time of allotment such allotment can be cancelled even after conferment of khatedari rights. Hon'ble Rajasthan High Court has repeated the same pronouncement in 2009(1) RRT 64. Similarly Hon'ble Rajasthan High Court has held in 2000 RRD 151 that when a person is not a landless person at the time of allotment such allotment can be cancelled even after conferment of khatedari rights. Hon'ble Rajasthan High Court has repeated the same pronouncement in 2009(1) RRT 64. Hon'ble Division Bench of Rajasthan High Court has held in 2009(1) RRT 113 that delay in cancellation of the allotment is immaterial when allotment is procured by fraud and misrepresentation of facts. As such we do not consider it material that the allottee had acquired khatedari right and there is considerable lapse of time after allotment when the impugned allotment is obtained by perpetrating fraud and misrepresentation of facts. When teeming numbers of landless peasants are waiting for allotment of agricultural land for their livelihood, a person with 179 bighas of land in his name cannot be allowed to go scot-free. With all due respects to the citations marshaled by the learned counsel for the appellant to press the argument that allotment cannot be cancelled after conferment of khatedari rights it is clarified that these citations are not applicable when allotment is procured through fraud and misrepresentation of facts. 12. The scope of special appeal under section 10 of the Act is very limited and special appeal cannot be treated as an alibi for a third appeal. The learned counsel for the appellants has raised the same arguments in the special appeals which he had raised before the learned Single Bench of this Court. It is evident from the above discussion that learned Single Bench has not committed any illegality or jurisdictional error in passing the impugned judgments. Unless there is legal or jurisdictional error, no interference can be made in the judgment of the Single Bench in special appeal, as is held in 2004 RRD 796 and 2007 RRD 707 (DB). 13. In view of the aforesaid discussion, both the special appeals fail and as such they stand dismissed. Pronounced.