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2010 DIGILAW 86 (RAJ)

Jetha v. State

2010-01-12

DINESH MAHESHWARI, JAGDISH BHALLA

body2010
Hon'ble BHALLA, CJ.—This intra-court appeal is directed against the order dated 8.1.2001 as passed in S.B. Civil Writ Petition No. 3053/2000 whereby the learned Single Judge has dismissed the writ petition preferred by the defendants-petitioners against the order dated 21.7.2000 as passed by the Board of Revenue for Rajasthan at Ajmer ('the Board of Revenue') dismissing the second appeal preferred by the petitioners and affirming the judgment and decree as passed against them in the revenue suit filed by the private respondents. 2. Sardara son of Hamir, the predecessor of the private respondents, filed the revenue suit on 3.7.1970 for declaration, injunction and recovery of possession with the allegations that he had mortgaged with the defendants-petitioners the land in question admeasuring 118 bigha and 8 biswas as comprised in khasra No. 125 at village Odawas, Tehsil Jaitaran for an amount of Rs. 2,000/-. The plaintiff averred that the defendants failed to restore the land even after expiry of the period of mortgage; and, on the contrary, the defendants suggested that the land had been sold to them under two sale deeds and mutation had also been effected. The plaintiff alleged that he was not heard in any such mutation proceedings and such mutation was obtained by the defendants in a fraudulent manner. The plaintiff prayed for declaration that he was the khatedar-tenant of the land, that the alleged sale deeds were null and void, and that the mutation was ineffective. The plaintiff also prayed for the relief of recovery of possession and perpetual injunction against the defendants. The defendants in their written statement alleged that the plaintiff had sold the land in question to them in Svt. Year 2015 and they had since continued in possession of the land in question as khatedars. 3. On the pleadings of the parties, the learned Trial Court framed the necessary issues and after taking the evidence led by the parties, proceeded to decree the suit by the judgment and decree dated 19.3.1986 while holding that the plaintiff was having khatedari rights over the land in question. The document of sale as placed on record subject to objection as Ex.D/1 was held inadmissible in evidence, and the learned Trial Court held that the defendants derived no rights under the said document and mutation so effected in their favour was incorrect and non-est. The document of sale as placed on record subject to objection as Ex.D/1 was held inadmissible in evidence, and the learned Trial Court held that the defendants derived no rights under the said document and mutation so effected in their favour was incorrect and non-est. The learned Trial Court, accordingly, held the plaintiff entitled to the reliefs as prayed including declaration of khatedari rights, for setting aside of the disputed mutation, for recovery of possession with mesne profits, and so also for perpetual injunction. Aggrieved, the defendants-petitioners preferred first appeal that was dismissed by the learned Revenue Appellate Authority, Pali on 30.5.1994 with the observation that the suggestion of sale with reference to an unregistered sale deed was not of any adverse effect on the rights of the plaintiff. The second appeal preferred by the defendants-petitioners was also dismissed by the Board of Revenue with the observations that the concurrent findings of the two Courts below called for no interference and that the defendants had failed to establish any right in the land in question. 4. The learned Single Judge declined to interfere with the orders aforesaid in the writ jurisdiction with the observations that there was no registered sale deed in favour of the defendants-petitioners; that the document Annexure-3 as relied upon by them was an unregistered document; and that the transfer of immovable property worth more than Rs. 100/- could not have been made except by way of a registered instrument. The learned Single Judge also took note of the submission "half-heartedly made on behalf of the petitioners that they had acquired the title by way of adverse possession and declined such a plea while finding that the same was not raised before the Courts below nor the same was available because for the land was mortgaged in the year 1962 and the suit for recovery of possession had been filed in the year 1970 and thus, the prescriptive period for acquiring rights by way of adverse possession had not been completed. 5. The learned counsel for the defendants-petitioners-appellants strenuously argued before us that though the suit was based on the so-called mortgage transaction but no such mortgage deed being available on record, no relief could have been granted to the plaintiffs. 5. The learned counsel for the defendants-petitioners-appellants strenuously argued before us that though the suit was based on the so-called mortgage transaction but no such mortgage deed being available on record, no relief could have been granted to the plaintiffs. The learned counsel further contended that in the present case, the plaintiff of his successors did not enter the witness box and failed to substantiate the pleadings of the plaint and thus, the suit could not have been decreed. The learned counsel yet further referred to Section 53-A of the Transfer of Property Act and submitted that with the petitioners being in possession of the land in question in furtherance of the transaction of sale between the parties, they are entitled to protect their possession. 6. Having given a thoughtful consideration to the submissions made on behalf of the petitioners-appellants and having examined the record of the case we are unable to find any reason to show any interference in this intra-court appeal. 7. So far the question of the plaintiffs' not entering into witness box and only examining other witnesses is concerned, we find that such an argument was not raised before the learned Single Judge. The learned Trial Court has considered the evidence as adduced by the parties and thereafter, came to the finding of fact that the plaintiff was the khatedar of the land in question and that the defendants had failed to show any right existing in them to be protected by way of any order by the Court. The learned Trial Court also noticed that the submissions regarding adverse possession was sought to be made but then, no such plea was raised in the written statement and hence, declined the same. The learned Trial Court found that the plaintiff was the khatedar-tenant of the land in question and when the same had not been transferred to the defendants in accordance with law, the plaintiff was definitely entitled to the reliefs as prayed for. The learned First Appellate Court and thereafter the Board of Revenue have considered the submissions as made on behalf of the defendants-petitioners and found no case for interference. 8. The learned First Appellate Court and thereafter the Board of Revenue have considered the submissions as made on behalf of the defendants-petitioners and found no case for interference. 8. In the given set of facts, at this stage of proceedings, we are unable to find any jurisdictional error leading to substantial failure of justice in the orders as passed by the Revenue Authorities decreeing the suit in favour of the plaintiff; and find no ground for interference merely because the plaintiff of his predecessors did not appear in the witness-box. Similarly, the fact that the plaintiffs have failed to establish mortgage transaction by a registered document is of little significance once it is found that the original plaintiff was indeed the khatedar tenant of the land in question and the defendants-petitioners have failed to show any right existing in them so as to acquire kahtedari rights in the land in question. In the totality of circumstances, the learned Single Judge cannot be said to have erred in declining to interfere in the writ jurisdiction 9. The submissions as sought to be made before us with reference to Section 53-A of the Transfer of Property Act are hardly of any avail when it is noticed that such plea was not suggested in the written statement filed before the learned Trial Court nor was suggested before the Board of Revenue. The appeal fails and is, therefore, dismissed.