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2009 DIGILAW 717 (RAJ)

Luna Ram v. Board of Revenue

2009-03-06

DINESH MAHESHWARI

body2009
JUDGMENT Hon'ble MAHESHWARI, J.—On or about 22.07.1980, the respondent No.5 Sukha Ram filed a suit against the petitioners Nos. 1 and 2 and the predecessor of the petitioners Nos. 3/1 to 3/8 for declaration and perpetual injunction in relation to the land comprised in Khasra No. 411 at village Roopawaton-Ka-Bera, Kaliberi, Tehsil and District Jodhpur essentially on the submissions that earlier the land admeasured 22 bighas and 12 biswas but, for a road having been constructed on its western side on an old existing way, 19 bighas and 8 biswas thereof remained in his possession; and on the allegations that the defendants threatened to dispossess him from a part of the land in question. It appears that later on, the plaintiff got the suit amended by adding the prayer for recovery of possession while alleging that on 20.10.1981, the defendants had unauthorisedly taken over possession of 10 bighas of the said land by shifting the boundary wall of their adjoining land. The plaintiff, inter alia, prayed for declaration of his khatedari rights over 19 bighas and 8 biswas of the said land comprised in khasra No. 411 and for recovery of possession of 10 bighas of land. 2. The defendants put the suit to the contention while challenging the title documents of the plaintiff and with the submissions that they were in possession of the land in question since generations; that the plaintiff had never cultivated the same; and that they had acquired the rights over the land in question by way of adverse possession. 3. 2. The defendants put the suit to the contention while challenging the title documents of the plaintiff and with the submissions that they were in possession of the land in question since generations; that the plaintiff had never cultivated the same; and that they had acquired the rights over the land in question by way of adverse possession. 3. On the pleadings of the parties, the learned Trial Court framed the following issues for determination of the questions involved in the case whereupon did the parties adduce the respective oral and documentary evidence:- ^^1- vk;k oknh [ksr [k-ua- 411 jdck 19 ch?kk 8 fcLok okds xzke ckxk rglhy] tks/kiqj dk [kkrsnkj fVusUV gS\ ftEes oknh 2- vk;k izfroknhx.k us fooknxzLr [kljk dh 10 ch?kk Hkwfe tks okn ds lkFk izLrqr uD'ks ds nl[kr ls yky jax ls vafdr gS ij fnukad 20-10-81 dks vukf/k—r dCtk dj fy;k\ ftEes oknh 3- vk;k oknh fo:) izfroknh fu"ks/kkKk dh fMØh ikus dk vf/kdkjh gS\ ftEes oknh 4- vk;k izfroknh dk fooknxzLr Hkwfe 10 ch?kk ij dCtk eq[kkyQkuk gks pqdk gS\ ftEes izfroknh 5- vk;k fooknxzLr Hkwfe 10 ch?kk dkfcy dk'r ugha gksus ls rFkk dnheh iM+r gksus ls oknh dks [kkrsnkjh vf/kdkj izkIr ugha gks ldrs\ ftEes izfroknh 6- vk;k oknh dks [k-ua- 411 dh ckihnkjk izkIr djus ls iwoZ dCtk xyr Fkk ftlesa [k-ua- 411 dh Hkwfe 'kkfey ugha Fkh o u jklrk dk ckih iÍk vFkok [kkrsnkjh dkuwuu nh tk ldrh Fkh\ ftEes izfroknh 7- vk;k [kljk uEcj 411 laor~ 2000 ls 2035 rd dnheh iM+r jgk gS\ ftEes izfroknh 8- nknjlh D;k gS\ <span> 4. It appears from the material placed on record that earlier the suit was dismissed on 26.06.1989 but a review application was allowed on 25.07.1989 and the suit was taken up rehearing. However, ultimately, the learned Trial Court dismissed the suit filed by the plaintiff on merits by its judgment and decree dated 27.07.1989 (Annex.1). Though the learned Trial Court found the plaintiff having khatedari rights in relation to the land in question but observed that the parties were not aware of the true boundaries of their respective khatedari land; and that although the defendants failed to establish their adverse possession but the plaintiff also failed to establish that the defendants dispossessed him only on 20.10.1981. 5. 5. The plaintiff took an appeal against the judgment and decree so passed by the learned Trial Court (Appeal No. 233/1989) before the Revenue Appellate Authority-II, Jodhpur ('the RAA') wherein the defendants also preferred their crossobjections (No. 516/1989). The learned RAA, by the judgment and decree dated 30.01.1991 (Annex.2), while endorsing the findings of the learned Trial Court on the relevant issues and holding that the plaintiff-appellant failed to establish if he was dispossessed on 20.10.1981, observed that the learned Trial Court refused to recognise the adverse possession of the defendants without any justification; and, while dismissing the appeal, allowed the cross-objections making a declaration that the defendants-respondents had been in adverse possession of the land in question. 6. Aggrieved by the judgment and decree so passed by the learned RAA, the plaintiff preferred two appeals (Nos.376/1991 and 377/1991) before the Board of Revenue for Rajasthan at Ajmer (‘the Board’/’the Board of Revenue’), that have been decided together by the impugned judgment and decree dated 03.01.1996 (Annex.3). The learned Members of the Board observed that both the subordinate Courts concurrently found the fact that the plaintiff Sukha Ram was the khatedar of the land in question and decided issue No.1 in favour of the plaintiff and even decided issues Nos. 5, 6 and 7 against the defendants but then, proceeded to dismiss the suit only on the consideration that in issue No.2, the plaintiff had not been able to prove the fact if the defendant did dispossess him from the land in question on the alleged date, i.e., 20.10.1981. On the question of adverse possession, the learned Members of the Board were of opinion that the defendants had failed to substantiate such allegations with cogent evidence; and though the defendants took such a plea in their written statement but did not produce oral or documentary evidence to establish that they were in absolute and hostile possession of the land in question 12 years before filing of the suit and, otherwise, the Girdawaries Exs. A/2 and A/3 recorded the plaintiff's possession. The learned Members of the Board further observed that even if the defendants intruded into possession any time earlier than 21.10.1981 but after the year 1975, the suit having been filed within 12 years, was required to be decreed. 7. A/2 and A/3 recorded the plaintiff's possession. The learned Members of the Board further observed that even if the defendants intruded into possession any time earlier than 21.10.1981 but after the year 1975, the suit having been filed within 12 years, was required to be decreed. 7. The learned Members of the Board yet further proceeded to observe that the plaintiff and all his witnesses stated about the defendants having forcibly taken over possession in the year 1981 and also referred to the statement of the defendant-petitioner Luna Ram, DW-4, to find that he was in possession of the land comprised in khasra No. 412 whereas the land in question was comprised in khasra No. 411. 8. With the observations and findings aforesaid, the learned Members of the Board proceeded to decree the suit; declared the plaintiff as the khatedar of the land in question; and directed delivery of possession of 10 bighas of land forcibly taken over by the defendants and issued necessary perpetual injunction. The learned Members of the Board further observed that the cross-objections as filed by the defendants before the RAA with reference to the order dated 25.07.1989 as passed on the review application were entirely incompetent; and particularly for want of counter-claim of the defendants, there was no question of making any declaration in their favour. Aggrieved, the defendants have preferred this writ petition. 9. Learned counsel for the petitioner referred to the decisions of the Hon'ble Supreme Court in the cases of Trambak Rubber Industries Ltd. vs. Nashik Workers Union & Ors. : (2003) 6 SCC 416 and Sriram Industrial Enterprises Ltd. vs. Mahak Singh & Ors. : (2007) 4 SCC 94 and contended that the impugned judgment and decree as passed by the Board of Revenue deserve to be interfered with and set aside in the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India wherein the powers of this Court are wide enough to ensure that the inferior Courts discharge their duties and obligations in accordance with law; and to interfere with the findings that have been reached by the inferior Courts arbitrarily and without reasonable basis. 10. Not much of comments on this aspect of the matter appear necessary in this case. 10. Not much of comments on this aspect of the matter appear necessary in this case. Suffice is to say that the powers of general superintendence conferred by Article 227 of the Constitution of India are basically intended to keep the subordinate courts/authorities within the bounds of their authority and to ensure that they discharge their duties in a legal manner. Thus, the cases of erroneous assumption of jurisdiction, or refusal to exercise jurisdiction, or errors apparent on the face of the record, or violation of principles of natural justice, or arbitrary or capricious exercise of authority, or recording the findings that are perverse or without reasonable basis may call for interference in a given case by this Court when any such error leads to manifest injustice but then, exercise of supervisory jurisdiction has not been considered proper unless the order of the subordinate court/authority is found to be suffering from such fundamental flaws; and it remains settled that the power under Article 227 is an extraordinary one and is not intended to be used as a substitute for ordinary revisional or appellate powers. The question essentially remains as to whether the impugned judgment and decree could be said to be suffering from any such fundamental error that would call for interference by this Court in its writ jurisdiction. 11. Seeking to make out a case for interference in this petition, the learned counsel for the petitioner strenuously contended in the first place that the Board of Revenue acted beyond the bounds of its jurisdiction under Section 224 of the Rajasthan Tenancy Act, 1955 (‘the Act of 1955’) whereunder a second appeal to the Board could be considered only on the limited grounds and re-appreciation of evidence by the Board is not at all contemplated. The learned counsel also referred to the Fourth Schedule to the Act of 1955 and submitted that the provisions contained in Section 100 of the Code of Civil Procedure ('CPC') have not been excluded from application to the proceedings under the Act of 1955 and then, referred to the decisions of the Hon'ble Supreme Court in the cases of Mithan Lal vs. State of Delhi & Ors.: AIR 1958 SC 682 and Bhaiyalal Shukla vs. State of Madhya Pradesh & Ors.: AIR 1962 SC 981 to submit that Section 100 CPC becomes an integral part of the scheme of the Act of 1955 and a second appeal to the Board could be considered only when the case involves a substantial question of law. Learned Counsel further referred to the decisions of the Hon'ble Supreme Court in the cases of Deity Pattabhiramaswamy vs. S. Hanymayya & Ors.: AIR 1959 SC 57 , Sri Sinha Ramanjua Jeer alias Sri Vanamamalai Ramanjua Jeer Swamigal vs. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer & Ors.: AIR 1961 SC 1720 , and V. Ramchandra Ayyar & Anr. vs. Ramalingam Chettiar & Anr.: AIR 1963 SC 302 to submit that in the second appeal, the Board could not have interfered with the concurrent findings of fact as recorded by the subordinate authorities. The arguments so strongly emphasised by the learned counsel for the petitioner on the powers and jurisdiction of the Board have their own limitations. 12. So far the decisions in Mithan Lal and Bhaiyalal's cases (supra) are concerned, it is rather difficult to appreciate the logic wherefor the same have been cited in this case. The said decisions related to the operation of a particular law that was extended to a particular State under a valid notification. The present one is not a case where Section 100 CPC has as such been extended to the Act of 1955 so as to be applicable for the purpose of suits or proceedings thereunder. It could not have been. 13. Section 100 CPC provides that an appeal would lie to the High Court from every decree passed in appeal by any Court subordinate, on the High Court being satisfied that the case involves a substantial question of law. It could not have been. 13. Section 100 CPC provides that an appeal would lie to the High Court from every decree passed in appeal by any Court subordinate, on the High Court being satisfied that the case involves a substantial question of law. On the other hand, in the scheme of the Act of 1955, appeals from appellate decrees are provided either to the Revenue Appellate Authority or to the Board in its Section 224 that reads as under:- “224. Appeals from appellate decrees–(1) An appeal shall lie to the Revenue Appellate Authority from a decree passed in appeal by a Collector. (2) An appeal shall lie to the Board from a decree passed in appeal by Revenue Appellate Authority on any of the following grounds, namely:- (i) the decision being contrary to law or to some usage having the force of law; (ii) the decision having failed to determine some material issue of law or usage having the force of law; (iii) a substantial error or defect in the procedure provided by or under this Act or by any other law for the time being in force, which may possibly have produced an error or defect in the decision of the case upon the merits; and (iv) the decision being contrary to the weight of evidence on record where the lower appellate court has varied or reversed any finding of the trial court on a question of fact.” 14. In the face of such provisions, Section 100 CPC providing for second appeal to the High Court, i.e., this Court, could not have been incorporated in the Act of 1955. The contours of jurisdiction of second appeal to the Board shall have to be seen and visualised as per the said provisions of Section 224 of the Act of 1955 and not as per Section 100 CPC. It does not appear correct to assume that a second appeal to the Board could be considered only as per the requirements of, and within the parameters of, Section 100 CPC. 15. The argument as advanced with reference to the Fourth Schedule to the Act of 1955, with respect, could only be rejected as rather misconceived. It does not appear correct to assume that a second appeal to the Board could be considered only as per the requirements of, and within the parameters of, Section 100 CPC. 15. The argument as advanced with reference to the Fourth Schedule to the Act of 1955, with respect, could only be rejected as rather misconceived. It has been suggested that the said Fourth Schedule specifically enumerates the Sections and Orders of the Code of Civil Procedure that do not apply to the suits or proceedings under the Act of 1955; and it has been contended that Section 100 CPC having not been mentioned therein, does apply to the proceedings under the Act of 1955. The argument totally ignores the substantive provision as contained in Section 208 of the Act of 1955 wherefor and whereunder has the said Fourth Schedule been drawn. Section 208 of the Act of 1955 reads as under:- “208. Application of Civil Procedure Code-The provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), except- (a) provisions inconsistent with anything in this Act, so far as the inconsistency extends, (b) provisions applicable only to special suits or proceedings outside the scope of this Act, and (c) provisions contained in List I of the Fourth schedule, shall apply to all suits and proceedings under this Act, subject to the modifications contained in List II of the Fourth Schedule.” 16. List-I of the said Fourth Schedule, of course, enumerates the specific provisions of the Code of Civil Procedure that are excluded from operation to the proceedings under the Act of 1955 but then, it has been made clear in the main provision itself (vide clause (a) of Section 208) that the provisions inconsistent with anything in the Act would not apply so far the inconsistency extends. When the grounds on which a second appeal would lie to the Board from a decree passed in appeal by the Revenue Appellate Authority have specifically been spelt out in Section 224 of the Act of 1955, the scheme and sphere of Section 100 CPC ipso facto render it inconsistent thereto; and to that extent Section 100 CPC would not apply to the second appeal before the Board. It is not correct to say that the Board should deal with a second appeal strictly in accordance with Section 100 CPC. It is not correct to say that the Board should deal with a second appeal strictly in accordance with Section 100 CPC. It would, of course, be dealt with by the Board per Section 224 of the Act of 1955 that itself provides the parameters for exercise of jurisdiction and so also the circumference within which the jurisdiction is to be exercised. Obviously, the decisions as rendered in relation to Section 100 CPC cannot be considered having direct application to the present case. 17. Learned counsel for the petitioner submitted next that it was impermissible for the Board to re-appreciate the evidence in second appeal and referred to the decision of the Hon'ble Division Bench of this Court in the case of Ghasi Ram & Ors. vs. Board of Revenue & Ors. 2001 (1) RLR 598 = RLW 2001(2) Raj. 778. A look at the said decision in Ghasi Ram (supra) makes out that the suit filed by the petitioners was decreed and the decree was maintained in appeal. This Court, however, remanded the matter to the Board of Revenue with the directions that it shall consider if the defendant-State produced any evidence but without allowing them to produce any additional evidence. The Board of Revenue thereafter allowed the second appeal and the writ petition filed by the petitioners was dismissed by the learned Single Judge. The Hon'ble Division Bench observed that earlier the matter was remanded to the Board only to examine as to whether the State had produced the evidence before the Court below or not; and they were prevented from leading any additional evidence to prove the record of rights. The Hon'ble Division Bench was of the view that the Board of Revenue did not properly construe the remand order and proceeded to re-appreciate the evidence that was not permissible in law. It was also noticed that no evidence was led by the State in rebuttal. In this context, the Hon'ble Division Bench observed that there was a limited scope for the Board of Revenue and that too, when remand was made with specific directions of this Court. The said decision in Ghashi Ram's case (supra) cannot be read as an authority on the abstract proposition as canvassed on behalf of the petitioner that the Board of Revenue cannot re-appreciate the evidence in second appeal. The said decision in Ghashi Ram's case (supra) cannot be read as an authority on the abstract proposition as canvassed on behalf of the petitioner that the Board of Revenue cannot re-appreciate the evidence in second appeal. In the said case, re-appreciation of evidence was impermissible for the very directions contained in the order of remand. 18. This Court is clearly of opinion that it cannot be laid down as a generalised and blanket proposition that the Board of Revenue cannot, in any case, re-consider the evidence available on record while dealing with the second appeal even if a clear case of misreading of evidence or perversity leading to error of law is made out. It is, of course, true that there are inherent limitations for interference in the concurrent findings of fact as recorded by the subordinate Courts; and even if other view is possible, the Board would not be taking such other view merely on re-appreciation of evidence but then, the proposition that the Board cannot at all re-examine the material on record would be practically rendering the very jurisdiction of the Board to entertain and deal with a second appeal nugatory. It cannot be forgotten that an appeal is basically a creation of statute and is of continuation of the suit; and circumscribing the appellate Court’s jurisdiction is essentially in the domain of the legislature. Beyond and above the statutory provisions, more fetters or limitations cannot be put on the scope of authority of an appellate Court. A second appeal to the Board of Revenue cannot be placed in such tight compartment that even in the appropriate cases like those of perversity and misreading of evidence, the interference becomes practically impossible. The impugned judgment and decree cannot be set aside merely for the reason that the Board has chosen to interfere with the concurrent findings of the two subordinate Courts. 19. The learned counsel thereafter submitted that if the Board was of opinion that the subordinate Courts had not appreciated the evidence properly, it was definitely required of the Board to have examined the entire evidence available on record and else, the concurrent findings could not have been reversed. 19. The learned counsel thereafter submitted that if the Board was of opinion that the subordinate Courts had not appreciated the evidence properly, it was definitely required of the Board to have examined the entire evidence available on record and else, the concurrent findings could not have been reversed. Learned counsel submitted that the present one is a case of errors apparent on the face of the record inasmuch as the Board has not dealt with the entire evidence and has rather made an observation that is indicative of misreading the evidence. Learned counsel submitted that the observations by the Board, of all the witnesses of the plaintiff having alleged the defendants taking over possession 5-6 years earlier, were not correct and such were not the statements made by the witnesses. Learned counsel further referred to the statement of the plaintiff Sukha Ram and attempted to deduce therefrom that the defendant had been in possession of the land in question about 25-30 years before filing of the suit and hence, according to learned counsel, the allegation of taking over of possession only 5 years back was not correct. 20. The submissions so made take us to the considerations adopted by the learned Members of the Board and having regard to the circumstances of the case, even when the petitioner had otherwise not annexed the relevant part of the evidence with this petition, the learned counsel for the petitioner was permitted to refer to the statements of the witnesses and photostat of the certified copies of such statements as placed for perusal by the learned counsel for the petitioners have been taken on record. 21. For the order proposed to be passed in the matter, this Court would not like to make any comment on the statements of such witnesses but upon perusal of the same, this Court prima facie finds that the sweeping observations as made by the learned Members of the Board about all the witnesses of the plaintiff having stated the defendants’ taking over possession in the year 1981 does not appear totally in conformity with record. Though the submissions as made by the learned counsel for the petitioners on the statements of the plaintiff Sukha Ram have their own limitations and cannot be accepted outright either but then, after examining the impugned judgment dated 31.01.1996, this Court finds that while proceeding to reverse the concurrent findings of the subordinate Courts and drawing a particular conclusion, the learned Members of the Board have not thoroughly dealt with entire of the oral and documentary evidence available on record. Even the salient features from the statements of the witnesses have not been indicated. 22. In the circumstances of the case, this Court is of opinion that the Board of Revenue ought to have examined the entire record of the case; and only after examining the entire evidence, oral and documentary, as available on record to have specifically stated its conclusions while deciding whether the concurrent findings of fact were required to be interfered with or not. 23. In the aforesaid view of the matter and looking to the overall circumstances, this Court is of opinion that interest of justice shall be served if the impugned judgment and decree dated 31.01.1996 are set aside and the said appeals as filed by the plaintiff are restored for reconsideration of the Board of Revenue in accordance with law. 24. Accordingly, this writ petition is allowed to the extent indicated above; the impugned judgment and decree dated 31.01.1996 are set aside and the said appeals (Nos. 376/1991 and 377/1991) are restored for reconsideration of the Board of Revenue. 25. The parties through their counsel appearing before this Court shall stand at notice to appear before the Board of Revenue on 21.04.2009. It is made clear that this Court has otherwise not pronounced on the merits of the case and the observations herein shall have no bearing on the case of either of the parties that is to be dealt with and considered by the Board in accordance with law. There shall be no order as to costs of this writ petition.