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2010 DIGILAW 374 (RAJ)

Kishani Devi v. Board of Revenue, Ajmer

2010-02-16

R.S.CHAUHAN

body2010
JUDGMENT 1. - Aggrieved by the order dated 12.02.2009 passed by the Board of Revenue, Ajmer ('the Board', for short) wherein the learned Board has remanded the case back to the Sub Divisional Officer, Siker ('the SDO', for short) and has directed him to hold a denovo trial, the petitioners has challenged the same before this Court. 2. In brief, the facts of the case are that on 01.03.2006, the petitioners filed a suit for declaration, permanent injunction and for correction of revenue record before the SDO, Sikar praying that they be declared as recorded tenant of half portion of the suit land and the respondent Nos.4 to 8 be restrained from interfering their peaceful possession. It was also averred in the suit that the suit land is an ancestral land and was in the name of Shri Ganpat Ram, the husband of the petitioner No.1. But due to collusion of some revenue officers, the respondents succeeded in removing his name from the revenue record. The respondent Nos.4 & 5 filed their written statements and denied the facts of the suit and also filed a counter claim on the basis of adverse possession against the petitioners. The petitioners filed reply to the counter claim. On 20.06.2007, the learned SDO framed four issues on the basis of pleadings. Both the parties led their evidence and also filed documents. After examining the record and on the basis of evidence recorded from both the parties, vide order dated 25.09.2008, the learned SDO decreed the suit in favour of the petitioners and declared the petitioners as recorded tenant of half portion of the suit land. Aggrieved by the said order dated 25.09.2008, on 03.10.2008, the respondent Nos.4 & 5 filed an appeal before the Revenue Appellate Authority ('the RAA', for short). On 17.11.2008, the petitioners also filed an appeal against the order dated 25.09.2008 before the RAA as the suit was not decreed in respect of permanent injunction and correction of revenue record. Vide order dated 14.01.2009, the learned RAA decided the appeals by a common order and allowed the appeal of the petitioners whereby the respondents were restrained by permanent injunction. He rejected the appeal of the respondents. Aggrieved by the said order dated 14.01.2009, the respondents filed a second appeal before the learned Board. The learned Board allowed the appeal and remanded the case for retrial to the SDO, Sikar. He rejected the appeal of the respondents. Aggrieved by the said order dated 14.01.2009, the respondents filed a second appeal before the learned Board. The learned Board allowed the appeal and remanded the case for retrial to the SDO, Sikar. Hence, this petition before this Court. 3. Mr. Arvind Gupta, the learned counsel for the petitioners, has contended that the learned Board has failed to consider the record of the case. A bare perusal of the record would clearly prove that not only the issues were framed by the SDO, but the oral testimonies of the parties were duly recorded. It is only after going through the oral and documentary evidence that the SDO had passed his order dated 25.09.2008. Since the issues were framed and testimonies were recorded, the learned Board is not justified in claiming that the SDO had failed to frame the issues and had not given an opportunity of hearing to the respondents. Secondly, as the entire evidence already exists on record, there is no reason to direct that a denovo trial be held. Thus, the impugned order deserves to be quashed and set aside. 4. On the other hand, Mr. Damodhar Mishra, the learned counsel for the respondents, had contended that the issues were not framed correctly by the SDO. Therefore, the issues need to be reframed and a denovo trial needs to be held. 5. In rejoinder, Mr. Arvind Gupta has submitted that in case the respondents were aggrieved by framing of the issues, they were free to challenge the same when the issues were so framed. Since they have failed to do so, they have missed the bus. Secondly, the appeal filed by the respondents has already been rejected by the learned RAA. Therefore, they should not be given a chance to plug in the lacunae that exists on their side. 6. Heard the learned counsel for the parties, perused the impugned order and the record available. 7. A bare perusal of the record clearly reveals that, indeed, the SDO had framed the issues and had recorded the oral testimonies of the parties. Hence, the observation made by the learned Board that the SDO had failed to frame the issues and had not given an opportunity of hearing to the parties is contrary to the record. 7. A bare perusal of the record clearly reveals that, indeed, the SDO had framed the issues and had recorded the oral testimonies of the parties. Hence, the observation made by the learned Board that the SDO had failed to frame the issues and had not given an opportunity of hearing to the parties is contrary to the record. Since the respondents had ample opportunities to challenge the framing of the issues, since they have failed to do so, they cannot be given a chance for reframing of the issues at this belated stage. Moreover, since their appeals have already been dismissed by the RAA, they cannot be given a chance to fill up the lacunae which may exist in their case. Lastly, as the complete evidence already exists on record, no fruitful purpose would be served by directing a denovo trial of the case. Such an exercise would be an exercise in futility. Therefore, this Court has no hesitation in quashing and setting aside the impugned order dated 12.02.2009. 8. In this view of the matter, the impugned order dated 12.02.2009 is, hereby quashed and set aside. The SDO is directed to re decide the case issue-wise and after discussing the evidence which is already available on record. The SDO is further directed to carry out this exercise within a period of one month from the date of receipt of the certified copy of this judgment. 9. Writ Petition allowed - Trial Court directed to redecide case issue wise on existing evidence.Writ Petition allowed. *******