Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 1469 (RAJ)

Kamlesh v. Kailash Chand

2009-06-16

G.K.TIWARI

body2009
TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the impugned judgment dated 20.7.04 of Settlement Officer-cum-Revenue Appellate Authority, Jaipur passed in appeal No. 82/03. 2. Briefly stated, the facts are that Sub-Divisional Officer Lalsot by his judgment dated 18.9.03 allowed the application filed before him under Section 144 of the Civil Procedure Code (C.P.C.) and appointed Tehsildar Lalsot as a receiver on the disputed land during pendency of a regular revenue suit which was remanded to him by Revenue Appellate Authority for issuewise re-decision. Aggrieved against this judgment dated 18.9.03 of Sub-Divisional Officer Lalsot, the non-petitioner No. 1 appellant preferred an appeal under Section 225 of the Act before Revenue Appellate Authority Jaipur who by his impugned judgment dated 20.7.04 allowed the appeal and set aside the judgment dated 18.9.03 of Sub-Divisional Officer. Hence the revision petition. 3. I have heard the learned counsel for the petitioner. 4. The learned counsel for the petitioner has argued that the petitioner-plaintiff had filed a suit for declaration of khatedari rights and permanent injunction under sections 88 and 188 of the Act in respect of the disputed land against the defendants-non-petitioners. During the course of this suit Sub-Divisional Officer Lalsot appointed Tehsildar Lalsot as a receiver on the disputed land till disposal of the suit. This suit was later on dismissed by the trial court against which an appeal was filed before the Revenue Appellate Authority who remanded the case to Sub-Divisional Officer for re-decision. The revision against the judgment of Revenue Appellate Authority was also dismissed, as such now the suit was before the trial Court for issuewise decision. Since the earlier Tehsildar Lalsot was appointed as a receiver during the course of the trial of the suit and now the case remanded to the trial Court, the earlier position of the land should have been restored, that is, a receiver was to be appointed against during the trial of the suit as was done earlier. For this an application under Section 144 of the C.P.C. filed before Sub-Divisional Officer Lalsot was rightly allowed by appointment of receiver vide the judgment dated 18.9.03 of Sub-Divisional Officer. This judgment should not have been interfered with by Revenue Appellate Authority by his impugned judgment dated 20.7.04. For this an application under Section 144 of the C.P.C. filed before Sub-Divisional Officer Lalsot was rightly allowed by appointment of receiver vide the judgment dated 18.9.03 of Sub-Divisional Officer. This judgment should not have been interfered with by Revenue Appellate Authority by his impugned judgment dated 20.7.04. With the remand of the case the earlier status of the disputed land should be restored with appointment of receiver. As such the impugned judgment of Revenue Appellate Authority should be set aside. 5. The non-petitioners did not appear before the court despite due service on them. 6. I have given thoughtful consideration to the contentions of the learned counsel for the petitioner, perused the impugned judgment dated 20.7.04 of Revenue Appellate Authority and gone through the file. 7. The judgment dated 18.9.03 of Sub-Divisional Officer shows that by allowing the application filed before him under Section 144 of the C.P.C. he has appointed Tehsildar Lalsot as a receiver on the disputed land. There is absolutely no provision for the appointment of a receiver under Section 144 of the C.P.C., which is about restitution of the possession to the concerned party to the suit only in respect of the disputed land in accordance with the provisions provided therein. A relevant part of section 144 of the C.P.C. is reproduced below:- "144. Application for restitution.-(1) Where and in so far as a decree (or an order) is (varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the court which passed the decree or order) shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position while they would have occupied but for such decree (or order) or (such part thereof as has been varied, reversed, set aside or modified) and for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesue profits, which are properly (consequential on such variation, reversal, setting aside or modification of the decree or order)." No where does the above provision provide the appointment of a receiver dispossessing both the parties. 8. 8. A receiver can be appointed only under Section 212 of the Act in respect of the disputed revenue land and not under Section 144 of the C.P.C. If a suit is dismissed, the order for appointment of receiver on the disputed land till disposal of the suit also stands dismissed as it was an interim arrangement under Section 212of the Act till disposal of the suit. When a case is remanded for re-hearing to the trial Court a party seeking appointment of receiver must file another application under Section 212 of the Act for grant of desired relief as provided under this provision till conclusion of the suit. There is no provision for the ipso-facto revival of the order of receiver with the remand of a suit for fresh trial in light of the observations and directions of the superior court. Thus, it is apparent that the order of appointment of receiver under Section 144 of the C.P.C. under the erroneous presumption that with the remand of case the earlier order of receiver has revived is patently perverse and illegal. The Revenue Appellate Authority by his impugned judgment dated 20.7.2004 has rightly set aside the impugned judgment dated 18.9.2003 of Sub-Divisional Officer Lalsot. 9. In view of the aforesaid discussion, Revenue Appellate Authority Jaipur neither committed any jurisdictional error nor acted illegally nor did any material irregularity so as to warrant any kind of interference in the revision. 10. Resultantly, the revision is dismissed in limine. It has needlessly been pending at the stage of admission for the lat five years. Pronounced.