Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 420 (RAJ)

Chunni v. Chena Ram

2009-02-09

G.K.TIWARI, ROHIT KUMAR SINGH

body2009
Judgment SINGH, M.—This is second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the judgment dated 25.7.2000 of Revenue Appellate Authority Jodhpur. 2. Briefly stated, the facts are that the appellants husband and father filed a suit under Section 188 of the Act against the respondent-defendants before Assistant Collector Jodhpur for the grant of permanent injunction against the defendants. The trial Court vide its judgment dated 31.7.1984 decreed the suit against which an appeal was filed by the respondents-defendants before Revenue Appellate Authority Jodhpur who by his impugned judgment dated 25.7.2000 set aside the judgment and decree dated 31.7.1984 of Assistant Collector and declared the respondents-defendants (appellants therein) as khatedar tenants of the disputed land accepting their counter claims. Hence the second appeal. 3. We heard the learned counsels for both the parties. 4. The learned counsel for the appellants has argued that the suit filed under section 188 of the Act was rightly decreed by the trial Court after framing five issues and leading evidence thereof discussing and adjudicating upon all the issues. But the Revenue Appellate Authority by his impugned judgment reversed the judgment of the trial Court without appreciating the documentary evidence produced by the plaintiff-appellants who are the recorded khatedars of the disputed land. This land originally belonged to Chena Ram son of Rawta Ram who is deceased husband/father of the appellants but the respondent No. 1 defendant whose name is also Chena Ram (son of Harji), misrepresenting the fact due to similarity of the names, claimed to be the khatedar of the disputed land. All the revenue records, old as well as new, show Chena Ram son of Rawta Ram as khatedar tenant of the disputed land who was regularly paying land rent, the receipts of which are enclosed in the file. There is only one casual entry in khasra girdawari of Svt. 2020 about the respondent-defendant No. 1 Chena Ram. This entry was illegal as it could not be made clear as to how this entry was made. One casual entry in khasra girdawari does not entitle respondent No. 1- defendant to become khatedar tenant of the disputed land. This matter has been properly examined by the trial Court who correctly decided the suit; but Revenue Appellate Authority by placing exclusive reliance on khasra girdawari of Svt. One casual entry in khasra girdawari does not entitle respondent No. 1- defendant to become khatedar tenant of the disputed land. This matter has been properly examined by the trial Court who correctly decided the suit; but Revenue Appellate Authority by placing exclusive reliance on khasra girdawari of Svt. 2020 declared the respondent-defendant as the khatedar tenants disregarding the entries made in records of rights i.e. various jamabandies-which are in the name of the appellants. The Revenue Appellate Authority has irregularly and illegally placed reliance on the report of site inspection allegedly carried out by Naib Tehsildar in some extraneous matter which is totally unrelated to the present case. Neither the trial court nor the first appellate court Revenue Appellate Authority had asked Naib Tehsildar to make an inspection for determining possession. The factum of possession has to be proved by the parties themselves adducing evidence. No evidence of possession can be collected through Naib Tehsildar. But Revenue Appellate Authority based his decision on this report of site inspection disregarding other documentary and oral evidence produced by the appellants. On the point of limitation it was contended by the counsel for the appellants that the impugned judgment of Revenue Appellate Authority is of 25.7.2000 appeal against which was filed on 13.11.2000. 16 days were spent in obtaining a copy of the judgment from the court, excluding this period there is delay of only 3 days which should be condoned in the larger interest of justice as a case like this should be decided on merits and not on technical grounds. 5. Countering the contentions of the appellants, the learned counsel for the respondents No. 1 defendant contended that Chena Ram son of Harji is the recorded khatedar tenant in possession of the disputed land. Relief of injunction under Section 188 of the Act cannot be given without determining possession of the tenant. In this case the respondent-defendant is in possession of the disputed land which is corroborated by the report of site inspection of Naib Tehsildar and oral evidence of Sarpanch. The respondent being in possession of the land became entitled to khatedari right under Sections 15 to 19 of the Act also. The receipts of land revenue produced by the appellants do not show khasra number as such it cannot be said that these receipts pertain to the disputed land. The respondent being in possession of the land became entitled to khatedari right under Sections 15 to 19 of the Act also. The receipts of land revenue produced by the appellants do not show khasra number as such it cannot be said that these receipts pertain to the disputed land. The Revenue Appellate Authority discussed all the five issues framed and thereafter pronounced his judgment which should not be interfered with. 6. We have given thoughtful consideration to the rival contentions, perused the impugned judgments of both lower courts and gone through the record. 7. Dealing with the point of limitation it is stated that the appeal against the impugned judgment dated 25.7.2000 of Revenue Appellate Authority was filed on 13.11.2000. It has been stated by the appellants that 16 days were spent in obtaining the copy of the impugned judgment; when this period is excluded there is delay of 2-3 days. The contention of the affidavit enclosed with application for condonation of delay under section 5 of the Limitation Act has not been disputed by filing counter affidavit by the respondents. A case like this which pertains to interest of tenants in respect of their rights and grant of injunction should be decided on merit rather than on technical consideration; as such we allow the application filed under section 5 of the Limitation Act and condone the delay in the larger interest of the justice. 8. Perusal of the khasra girdawari of Svt. 2012 to 2014 shows Chena Jat as the tenant of the disputed land. The appellants contend that this Chena Jat is son of Rawta Ram whereas respondent-defendant says that this Chena Jat is son of Harji Jat. But the subsequent revenue records like jamabandi (Ex. 1) of Svt. 2023 to 2026 and 2027 to 2028 (Ex. 4) shows Chena Ram son of Rawta Ram as the khatedar tenant of the disputed land. Thus documentary evidence as reflected from revenue records like jamabandi and khasra girdawari expressly indicate that Chena Ram son of Rawta Ram is the recorded khatedar tenant of the disputed land. The above cited revenue records have not been rebutted and proved wrong by the respondent-defendant. The appellants have also produced original receipts, (Ex. 5 to 16) of `lagaan' which show that the land rent was paid by Chena son of Rawta. The above cited revenue records have not been rebutted and proved wrong by the respondent-defendant. The appellants have also produced original receipts, (Ex. 5 to 16) of `lagaan' which show that the land rent was paid by Chena son of Rawta. Additionally, copies of receipts of land rent pertaining to period ranging from the year 1956 to 1968 have also been produced in which the name of the tenant paying rent is written as Chena son of Rawta. There is no reason not to believe these receipts of the land rent which are public documents. 9. As far as possession on the disputed land is concerned, khasra girdawaris of period ranging from 2012 to 2027, and 2028 to 2030 are produced showing Chena Ram son of Rawta Ram as tenant. Only in khasra girdawari Svt. 2020 name of Chena Ram son of Harji is written in column No. 6. How this name got entered into the column No. 6 of only one khasra girdawari of Svt. 2020 is not clear. This casual and sporadic entry in column No. 6 of khasra girdawari of Svt. 2020 alone does not qualify the respondent-defendant to become khatedar tenant of the disputed land. The respondent-defendant should have shown his uninterrupted possession on the disputed land with status of a tenant from period before Svt. 2012 uptil the date of filing of the suit. But this has not been done. No documentary evidence is produced to prove the fact that the respondent-defendant has been in possession of the land since the period from 2012 as a tenant. The Revenue Appellate Authority has placed exclusive reliance on the report of site inspection made by Naib Tehsildar showing possession of the respondent -defendant on the disputed land. Neither the trial Court nor Revenue Appellate Authority has appointed Naib Tehsildar as Commissioner for carrying out inspection of the disputed land for the purpose of determining possession. This report of Naib Tehsildar is totally extraneous and unrelated to the judicial case filed in the courts. Firstly a commissioner cannot be appointed to determine the possession of a particular party on the disputed land- it is duties of the parties concerned to prove their possession by adducing proper evidence. This report of Naib Tehsildar is totally extraneous and unrelated to the judicial case filed in the courts. Firstly a commissioner cannot be appointed to determine the possession of a particular party on the disputed land- it is duties of the parties concerned to prove their possession by adducing proper evidence. Secondly, some administrative report of Naib Tehsildar unrelated to the judicial matter cannot be admitted in evidence in a suit in which Naib Tehsildar was not authorised by the court to conduct site inspection. As such finding of Revenue Appellate Authority in respect of the possession of the respondent-defendant is perverse being contrary to evidence available in the file of the case. 10. In view of the above discussion it is evident that the appellants are recorded khatedars of the disputed land and as such are entitled for the relief of injunction against the respondent-defendants. The Sub-Divisional Officer correctly decided all the five issues separately on the basis of documentary and oral evidence adduced; whereas findings of Revenue Appellate Authority Jodhpur on the same issues are perverse being contrary to evidence available on record. 11. Resultantly, the appeal is allowed; the impugned judgment dated 25.7.2000 of Revenue Appellate Authority Jodhpur is set aside and Judgment dated 31.7.1984 of Sub-Divisional Officer Jodhpur is upheld. Pronounced.