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2010 DIGILAW 714 (RAJ)

Jagdish Prasad v. Board of Revenue

2010-03-30

AJAY RASTOGI

body2010
Hon'ble RASTOGI, J.—Instant petition has been filed assailing order dt. 14.12.2009 (Ann. 5) whereby application filed by petitioner under Section 10 CPC was rejected-against which revision petition was preferred under Section 84 of the Rajasthan Land Revenue Act, 1956 which had also met the same fate on being dismissed by Board of Revenue vide order dt. 3.3.2010 (Ann. 6). 2. It appears from the material on record that respondent-3 (Barji Devi alia (Gangadevi) on whose behalf caveat has been filed in the instant petition, has filed an appeal under Section 75 of Rajasthan Land Revenue Act before S.D.M., Amer against cancellation of mutation entry No. 33 dt. 17.9.1977 Gram Panchayat Akhepura Tehsil Amer (district Jaipur) while impleading petitioner and other respondents herein. 3. At the same time, respondent-3 (Barji devi) filed a partition suit under Sections 53, 88, 89, 90A and 188 of Rajasthan Tenancy Act, 1955 impleading petitioner and other respondents and the same is pending before SDM Amer. 4. After hearing the parties, appeal preferred by respondent-3 was allowed and while cancelling mutation entry No. 33 dt. 17.9.1977, the matter was remanded by S.D.M. Amer vide order dt. 6.10.2009 (Annex. 3) to the Tehsildar, Amer who is competent to open mutation afterhearing the parties in accordance with. 5. However present petitioner filed application under Section 10, C.P.C. before Tehsildar Amer on the premise that subject matter of the suit pending before him relating to mutation of agricultural land in question is one and the same as in the suit filed by respondent-3 (Barjidevi) seeking partition and in such circumstances, if mutation is allowed to be carried out, it would cause prejudice inasmuch as the prayer having been made in the suit pending before the Tehsildar for recording the mutation being about the same to what has been prayed for by respondent in partition suit and the disputed property is common in both the matters, proceedings before Tehsildar Amer may be kept in abeyance till disposal of partition suit pending before SDM Amer (Jaipur). However, while taking note of material on record and in fact endorsing note of the suit pending before him and so also partition suit, the Tehsildar did not consider it appropriate to stay proceedings and accordingly application under Section 10 CPC was rejected and obviously on rejection, he was supposed to proceed with in accordance with law. However, while taking note of material on record and in fact endorsing note of the suit pending before him and so also partition suit, the Tehsildar did not consider it appropriate to stay proceedings and accordingly application under Section 10 CPC was rejected and obviously on rejection, he was supposed to proceed with in accordance with law. The Board of Revenue has also examined the dispute having been raised in two different forums and finally found no justification to entertain revision petition which too was rejected vide order dt. 3.3.2010 (Ann. 6). 6.Main thrust of Counsel for petitioner is that when the dispute in respect of mutation is pending before Tehsildar Amer and since property in partition suit and proceedings before Tehsildar is substantially the same to be examined in the pending suits, learned Tehsildar has committed serious error of law in rejecting application of petitioner under Section 10 CPC and same error has been committed by Board of Revenue while rejecting revision pettition against order impugned. 7. Counsel for respondent-3 on whose behalf caveat has been entered, while supporting the orders impugned submits that Section 10 CPC has no application in the facts of instant case. 8. This Court has considered rival contention of Counsel for parties and with their assistance, examined material on record. After the appeal filed by respondent-3 under Section 75 of LandRevenue Act was allowed vide order dt. 6.10.2009 (Ann. 3) and while setting aside mutation entry No. 33 dt. 17.9.1977, matter has been remitted back to consider afresh by Tehsildar who obviously has to proceed in terms of direction and observation made in accordance with law. 9. As regards suit for partition, the parties may be common but it is in no manner inter-related to the dispute to be examined and resolved in regard to mutation entry No. 33/dt. 17.9.1977, which the trial Court has taken note of while rejecting application under Section 10, CPC. In the opinion of this Court, Section 10 CPC. has no application in the facts of instance case since the dispute in regard to mutation entry and so also suit for partition has no co-inter-relationship, and cannot be said that the issue is substantially one and the same. 10. After having gone through the orders impugned, this Court finds no manifest error being committed by Court below and there is no substance to entertain this petition. 10. After having gone through the orders impugned, this Court finds no manifest error being committed by Court below and there is no substance to entertain this petition. Consequently, writ petition fails and is hereby dismissed.