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2009 DIGILAW 2128 (RAJ)

Abdul Rehman v. State of Rajasthan

2009-10-09

G.K.TIWARI, TARA CHAND SAHARAN

body2009
TIWARI, M.—This is a second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the impugned judgment dated 7.9.09 of Settlement Officer-cum-Revenue Appellate Authority Bhilwara. 2. Briefly stated, the facts are that the appellant-plaintiff filed a suit under Section 88 and 188 of the Act against the respondent-defendants in the court of Sub-Divisional Officer (Jahajpur) who by his judgment dated 9.7.08 dismissed the suit aggrieved against which the appellant-plaintiff filed a first appeal under Section 223 of the Act before Revenue Appellate Authority (Bhilwara) who by his impugned judgment dated 7.7.09 dismissed the appeal and upheld the judgment dated 9.7.08 of the trial Court. The appellant has preferred the instant appeal under Section 224 of the Act in this Court. 3. We have heard the learned counsels for both the parties. 4. The learned counsel for the appellant contended that the Appellant Abdul Rehman was allotted the disputed land on 20.6.1972 and thereafter possession was also handed over to the appellant. The appellant has been in possession in this allotted piece of land ever since. But due to negligence and default of the revenue officials, mutation of the allotted land was not carried out in favour of the appellant and as such the allotted land did not figure in the name of the appellant in the revenue records. Therefore, a suit for declaration of khatedari right and grant of injunction was filed in the court of Sub-Divisional Officer, Jahajpur who illegal dismissed the suit. Revenue Appellate Authority also erroneously concurred in the judgment of the trial Court. The learned counsel contended that the impugned judgment of Revenue Appellate Authority is not issue wise and as such not in accordance with Order 41 Rule 31 of the Civil Procedure Code (C.P.C.). So the judgment should be quashed on this ground only. The learned counsel cited 2001(8) RBJ 603 (SC) in support of his contention. It was also contended that both the lower courts had wrongly held that the possession of the disputed land was not handed over to the appellant. It was duly of the revenue officials to hand over the possession. Khatedari right cannot be denied to an allotted on the ground of not handing over of the possession. The learned counsel cited 2000 RBJ 457 to support of his contention. It was duly of the revenue officials to hand over the possession. Khatedari right cannot be denied to an allotted on the ground of not handing over of the possession. The learned counsel cited 2000 RBJ 457 to support of his contention. The very fact that the Tehsildar had issued notices under Section 91 of the Rajasthan Land Revenue Act, 1956 shows that the appellant is in posse-ssion of the disputed allotted land. The learned counsel prayed for declaration of khatedari rights with setting aside of the judgment of lower Courts. 5. Countering the contentions of the appellant, learned Additional Government Advocate pleaded that no formal allotment was made to the appellant. The order dated 20.6.1972 of the allotment is not the allotment order but only recommendation of the Allotment Advisory Committee. Neither a `Patta' nor any `Sanad' was issued pursuant to the allotment. Even possession of the disputed allotted land was not handed over to the appellant in view of the fact that the disputed land was uncultivable hillock (gair-mumkin-pahar) located in the municipal limit. Such uncultivable land located in municipal limit cannot be allotted. The Additional Government Advocate contended that if any land was allotted to the appellant it was also duty of the appellant under Rule 15(c) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules 1970 (in short `the Rules of 1970') to apply to the Collector for getting possession on the land; but the appellant failed in this mandatory duty and obligation. It was also pleaded that Revenue Appellate Authority has concurred in the judgment of Sub-Divisional Officer who has given issuewise findings. In the concurrent judgment of the first appellate Court it is not necessary to further deal with individual issues separately, which is done only in the reversing judgment of the appellate court. However, Revenue Appellate Authority has touched upon all the main issues together in his appellate judgment. There are concurrent findings of facts in the judgments of both the lower Courts which should not be interfered with in the second appeal which should be dismissed at the stage of admission. 6. We have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through record available on the file. 7. The appellant is claiming khatedari right in respect of the disputed land on the ground that he was allotted the disputed land on 20.6.1972. 6. We have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through record available on the file. 7. The appellant is claiming khatedari right in respect of the disputed land on the ground that he was allotted the disputed land on 20.6.1972. But the appellant has not produced any formal allotment order issued in his favour. The appellant marshals the alleged order dated 22.6.1972 of Allotment Advisory Committee as the order of allotment; but in fact this is not the order of allotment. It is, in fact, mere recommendation of the Allotment Advisory Committee for the allotment of the land. The recommendation of Allotment Advisory Committee does not tantamount to formal allotment of land. Under Rule 13(1) of the Allotment Rules of 1970, allotment is made by the Sub-Divisional Officer in consultation with the Allotment Advisory Committee. But there is no order of allotment issued by the Sub-Divisional Officer. Perusal of the judgment of lower Courts reveals that the possession of the land was not handed over to the appellant because the allotted land was `gair mumkin pahar' (uncultivable hillock) located within the municipal limit of Jahajpur. The contention of the appellant is that he should not suffer because of the fault of the revenue officials in not handing over the possession of the disputed land. In this regard 15(c) of the Allotment Rules of 1970 is important which is reproduced as below:- 15(c) "Where the allottee is not actually given possession of the allotted land within one month from the date of the order of allotment he shall apply to the Collector who shall enforce the order unless it is stayed by a competent authority." The appellant never applied to the Collector within one month from the referred date to enforce the recommendation of the Allotment Advisory Committee and get possession of the land which he claims to be allotted to him. Thus, the appellant has miserably failed in discharging the obligation cast upon him, as stated above in Rule 15(c) of the Allotment Rules of 1970. 8. Thus, the appellant has miserably failed in discharging the obligation cast upon him, as stated above in Rule 15(c) of the Allotment Rules of 1970. 8. The allotment of agricultural land comprises mainly of five components: recommendation of Allotment Advisory Committee; issuance of order of allotment in form 5 as prescribed under rule 15(2) of the Allotment Rules of 1970; handing over of the possession of the allotted land to the allottee; issuance of `Sanad' in form VI as per Rules 15(3) of the Allotment of Rules of 1970; and carrying out of mutation of the allotted land in favour of the allottee pursuant to the allotment order and `sanad'. In the instant case neither the allotment order in form V was issued, nor possession of the disputed land was handed over, nor `sanad' in form VI was issued, nor mutation of the allotted land was carried out. Thus, mere recommendation of Allotment Advisory Committee cannot be treated as allotment of land in absence of its being acted upon as above. 9. Both the lower courts have concurrently held that the disputed land is located in municipal limit of Jahajpur, and it is classified as `gair mumkin pahar' (uncultivable hillock). Khatedari right is not accruable in such land as such land is not available for allotment under Rule 4 of the Allotment Rules of 1970. 10. The learned counsel for the appellant has cited 2001(8) RBJ 603 in support of his plea that the judgment of the first appellate court should be set aside as it is not issuewise. Perusal of this ruling of Hon'ble Supreme Court shows that in the referred case the first appellate court (Hon'ble High Court) had set aside the judgment and decree of the trial court and allowed the first appeal. i.e., it was a reversing judgment. Hon'ble Apex Court has held that while reversing a finding of fact and judgment of the trial Court, it was duty of the first appellate court to deal with all the issues. But in the instant case, the first appellate court i.e. Revenue Appellate Authority has not given any reversing finding of fact or reversing judgment. He has concurrent in the judgment of the trial Court which is given issuewise. But in the instant case, the first appellate court i.e. Revenue Appellate Authority has not given any reversing finding of fact or reversing judgment. He has concurrent in the judgment of the trial Court which is given issuewise. In this regard we are placing reliance on a pronouncement of Hon'ble Supreme Court as reported in AIR 2008(SC) 673 in which Hon'ble Supreme Court has held that: "The appellate court agreeing with the view of trial Court need not restate the effect of the evidence or reasons given by the trial Court; expression of general agreement with the reasons given by the court, decision of which is under appeal, would ordinarily suffice." In light of the above cited pronouncement of Hon'ble Supreme Court we find that the first appellate Court of Revenue Appellate Authority has agreed with the view of trial Court which is given issuewise, and concurred in the findings of facts of the trial Court. Revenue Appellate Authority has dealt with main issues in controversy together in his concurring judgment. Thus, the judgment of Revenue Appellate Authority is not flawed in this regard. 11. The appellant has contended that he continues to be in possession of the disputed land even though formal possession was not handed over to him by any revenue functionary. At the same time he has admitted that action under Section 91 of the Rajasthan Land Revenue Act 1956 was initiated against him several times; this shows that there is no legitimacy in the alleged possession of the appellant; such a forceful possession tantamounts to trespass on government land. No khatedari right is accruable in respect of such trespassed government land located in municipal limit. The citation 2000 RBJ 457 produced by the learned counsel for the appellant is not applicable in this respect as it pertains to a matter regarding cancellation of allotment under Rule 14(3) of the Allotment Rules of 1970 whereas the instant case is about a suit for declaration of khatedari rights and injunction. Besides it, the basic facts are also different. In the referred case the allottee had denied handing over of possession of land to him; whereas in the instant case the alleged allottee claims that he has got possession on the disputed land. Thus, the factum of possession in the cited case was denied whereas in the instant case it is claimed. In the referred case the allottee had denied handing over of possession of land to him; whereas in the instant case the alleged allottee claims that he has got possession on the disputed land. Thus, the factum of possession in the cited case was denied whereas in the instant case it is claimed. Thus, this citation does not help the appellant. 12. In view of the foregoing discussion, we do not find any infirmity in the concurrent judgments of both the lower courts which do not warrant any interference in the second appeal. 13. Resultantly, the appeal is dismissed in limine at the stage of admission.