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2009 DIGILAW 1773 (RAJ)

Gopal Lal v. Board of Revenue

2009-08-06

R.S.CHAUHAN

body2009
Hon'ble CHAUHAN, J.—Aggrieved by the order dated 12.10.1989 passed by the Board of Revenue ('the Board', for short), the petitioners have filed the present writ petition. 2. In a nutshell the facts of the case are that the respondent Nos.4 & 5 filed a revenue suit under Section 183 of the Rajasthan Tenancy Act, 1955 ('the Act', for short) against the petitioners alleging that agricultural land comprising of Khasra No.173 measuring 4 Bighas 3 Biswas, Khasra No.174 measuring 5 Bighas 11 Biswas, Khasra No.176 Measuring 7 Bighas 6 Biswas and a well Khasra No.175 Measuring 2 Biswas are situated in Village Rayala, Tehsil Bundi. The said land was mortgaged with possession by the plaintiff Onkar on 04.04.1961 for an amount of Rs.2,399/-. After expiry of the period of mortgage, the petitioners did not hand-over the possession. Therefore, the suit had to be filed. The petitioners filed the written statement wherein it was alleged that though the amount of Rs.2399/- was advanced, but the land was not mortgaged to them. On the contrary, they were sub-tenants as the land had been let out to them on payment of Rs.200/- per year. Vide order dated 24.02.1982, the Assistant Collector decreed the suit and granted a decree in favour of the plaintiffs. The petitioner filed an appeal against the Assistant Collector's order before the learned Revenue Appellate Authority ('the RAA', for short). Vide order dated 12.06.1984, the learned RAA allowed the appeal and held that the alleged mortgage deed, Ex.1, on which the suit had been based, was an unregistered document. Therefore, it could not be admitted into evidence, and the suit could not be decreed on its basis. The learned RAA also held that the plaintiffs having filed an earlier suit, which had been dismissed on 23.09.1969, under Order 9, Rule 9 CPC could not have filed the present suit. He also held that the suit was beyond limitation. Aggrieved by the order dated 12.06.1984, the respondent Nos.4 & 5 filed a second appeal before the learned Board. Vide order dated 12.10.1989, the learned Board set aside the order of the learned RAA and maintained the order of the Assistant Collector. Hence, this petition before this Court. 3. Mr. He also held that the suit was beyond limitation. Aggrieved by the order dated 12.06.1984, the respondent Nos.4 & 5 filed a second appeal before the learned Board. Vide order dated 12.10.1989, the learned Board set aside the order of the learned RAA and maintained the order of the Assistant Collector. Hence, this petition before this Court. 3. Mr. Kamlakar Sharma, the learned counsel for the petitioners, has raised the following contentions before this Court : firstly, that the finding given by the learned Board that “the petitioners had admitted the fact that they advanced a sum of Rs.2,339/- to the plaintiff and as a security for the amount, the possession of the disputed land was given by the plaintiff to the petitioner” is contrary to the record. Moreover, the finding that “the land was given to the defendants on sub-tenancy at the rate of Rs.200/- per year is not found to be correct.” The said finding has been given by the learned Board without assigning any reason. Moreover, the conclusion that “the land was mortgaged is therefore proved,” has been drawn without assigning any reasons. Therefore, the impugned judgment suffers from being a non-speaking order. In order to buttress this contention, the learned counsel has drawn the attention of this Court to the written statement submitted by the petitioners, as the defendants in original suit. According to the written statement, while the petitioner had admitted that he had given a loan of Rs.2,399/- to the plaintiff, but he has stated that the land came into his possession as the land was given by the plaintiff to him on a monthly rent of Rs.200/- per year. Thus, according to the learned counsel, the petitioners, as the defendants in the suit, had clearly denied that the land had come to them as a mortgaged property. 4. Secondly, the entire case of the plaintiff was based on an alleged mortgage-deed produced as Ex-1. While the learned Assistant Collector had relied upon the said mortgage-deed, the learned RAA was of the opinion that the said mortgage-deed could not be read in evidence as it was not a registered document. 4. Secondly, the entire case of the plaintiff was based on an alleged mortgage-deed produced as Ex-1. While the learned Assistant Collector had relied upon the said mortgage-deed, the learned RAA was of the opinion that the said mortgage-deed could not be read in evidence as it was not a registered document. However, the learned Board has observed that “we do not agree with the observations made by the RAA that the said document is not admissible in evidence.” The learned Board has taken an anomalous position when it observed that “the document may be read or not but the fact remains that in para No.3 of the written statement the defendants admitted the fact that they had advanced a sum of Rs.2,399/- to the plaintiff and as a security for the amount the possession of the disputed land was given by the plaintiff to the defendant.” According to the learned counsel, since the entire suit depended on the admissibility or non-admissibility of the mortgage-deed, the learned Board was required to go into this issue. Since the learned Board has not gone into this issue, it has failed to properly exercise its jurisdiction. 5. Thirdly, since the petitioners had placed themselves as a sub-tenants and in case the respondent Nos.4 & 5, who were the plaintiffs in the original suit, wanted to oust the petitioners, they should have filed a civil suit for determination of the sub-tenancy. They could not possibly have filed a suit for ejecting them under Section 183 of the Tenancy Act. 6. Fourthly, the loan was given in the year 1961 and yet the suit filed, under Section 183 of the Tenancy Act, was not filed till the year 1974. The learned counsel has pointed out that there are various dates which have been recorded for filing of the suit in the body of the judgment passed by the Assistant Collector: the suit was filed on 21.09.1974, in the plaint the date of filing of the plaint has been given as 09.10.1979, yet on the front page of the judgment, the date for institution of the suit has been given as 17.06.1977. However, even if the date of filing of the suit is taken as 21.09.1974, even then the said suit has been filed beyond the period of 12 years. Therefore, the suit was hit by limitation. 7. However, even if the date of filing of the suit is taken as 21.09.1974, even then the said suit has been filed beyond the period of 12 years. Therefore, the suit was hit by limitation. 7. Fifthly, even earlier the plaintiff had filed a suit for the same set of relief. However, the said suit was dismissed in default on 23.09.1967. Therefore, the subsequent suit could not have been filed as it is hit by Order 9, Rule 9 of CPC. However, this aspect has not been considered by the Board. 8. Lastly, the Board has not given its decision on separate issues which arose in the appeal. Therefore, the impugned judgment is unsustainable. 9. Mr. B.P. Pareek, the learned counsel for the respondents, has frankly conceded, and in our opinion rightly so, that there are major lacunae, as argued by Mr. Kamlakar Sharma, which do exist in the impugned order. 10. A bare perusal of impugned order clearly reveals that while the learned Board has jumped to certain conclusions, it has failed to give any reasons for drawing the said conclusions. Moreover, the learned Board has nowhere considered the issue of limitation or the issue of Order 9, Rule 9 of CPC. Thus, in these facts and circumstances of the case, the impugned order dated 12.10.1989 is, hereby, quashed and set aside. And the matter is remanded back to the learned Board for reconsidering the entire case on the basis of the evidence already produced. The party shall be free to raise all the contentions raised earlier before the Board. The parties are directed to appear before the learned Board on 05th October, 2009. The registry is directed to immediately send the record back to the Board. 11. With these observations, this writ petition is, hereby, allowed. There shall be no order as to costs.