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2011 DIGILAW 1207 (RAJ)

Megha v. Dalichand

2011-06-13

G.K.TIWARI

body2011
Dr. TIWARI, M.—This is a revision under Section 230 of the Rajasthan Tenancy Act, 1955 (in short 'the Act') directed against the impugned judgment dated 22.12.2004 of Settlement Officer-cum-Revenue Appellate Authority, Udaipur. 2. The facts, in brief, of the case are that the non-petitioner No.1 filed an application under Section 212 of the Act in the Court of Sub-Divisional Officer Udaipur for appointment of receiver in respect of the suit land. Sub-Divisional Officer Udaipur declined to appoint receiver on the suit land vide his judgment dated 6.10.2004 which was challenged in appeal under Section 225 of the Act before Settlement Officer-cum-Revenue Appellate Authority Udaipur who allowed the appeal and appointed Naib Tehsildar Kurawar as a receiver on the suit land. Aggrieved against the impugned judgment dated 22.12.2004 of Settlement Officer-cum-Revenue Appellate Authority Udaipur, the petitioners have preferred the revision in this Court. 3. I have heard the learned counsels of both the parties. 4. The learned counsel for the petitioners contended that the petitioners are the co-tenants of the suit land with the non-petitioners. On the land of joint co-tenancy every co-tenant has equal right and possession. Thus a recorded co-tenant cannot be deprived of his rightful possession by appointing receiver. Appointment of receiver is the harshest remedy which cannot be invoked against a co-tenant. Thus, Sub-Divisional Officer rightly rejected the application for appointment of receiver but Revenue Appellate Authority illegally appointed receiver exceeding its jurisdiction and committing material illegality. The learned counsel cited 1987 RRD 128, 1994 RRD 640 and 1993 RRD 229 in support of his contentions. It was also contended that earlier the non-petitioners obtained ex-parte interim injunction order from Sub-Divisional Officer. But there is no evidence that this ex-parte interim injunction order was ever violated by the petitioners. Even then Settlement Officer-cum-Revenue Appellate Authority appointed receiver on the ground that the petitioners have violated the interim order of Sub-Divisional Officer. This is altogether incorrect finding of the Revenue Appellate Authority. It is also pleaded that a contempt proceeding initiated by the non-petitioners against the alleged violation of the interim order was dropped by Sub-Divisional Officer. Thus, in these circumstances there is no justification for appointment of receiver. Therefore, the impugned judgment of Settlement Officer-cum-Revenue Appellate Authority should be set aside and the judgment of the trial Court should be upheld. 5. Thus, in these circumstances there is no justification for appointment of receiver. Therefore, the impugned judgment of Settlement Officer-cum-Revenue Appellate Authority should be set aside and the judgment of the trial Court should be upheld. 5. Opposing the contentions of the petitioners, the learned counsel for the non-petitioners pleaded that though the disputed land is of joint co-tenancy yet the petitioners want to usurp the land of the one of the co-tenants (Amarati) who has died intestate. The land of the deceased co-tenant Amarati should vest in all the co-tenants. But the petitioners are not willing to accept it. It was also contended hat the non-petitioner Partha was an old man and the petitioners would deliberately encroach upon the tilled land of Partha. Revenue Appellate Authority has correctly held the land as 'in-medio'. Citing 1990 RRD 542, 2001 RRD 101, 1990 RRD 676 and 1973 RRD 171 the learned counsel pressed for rejection of the revision. 6. I have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the material on record. 7. Admittedly, the petitioners and the non-petitioners are co-tenants of the suit land. The bare perusal of the application under Section 212 of the Act filed by the non-petitioner Partha (deceased) in the Court of Sub-Divisional Officer Udaipur shows that he had requested for appointment of a receiver to avoid bickering and physical violence pertaining to possession on the suit land, as also for maintaining peace and tranquility. Evidently, these are not ingredients for appointment of a receiver as envisaged in provisions of Section 212 of the Act. One major apprehension of the non-petitioner is that the share of one of the co-tenants 'Amarati' who had died, is likely to be usurped by the petitioners alone. Again this apprehension cannot become a ground for appointment of a receiver. Another plea given by the non-petitioners for appointment of receiver is that the petitioner have disobeyed ad-interim ex-parte injunction order of Sub-Divisional Officer. In this regard there is not an iota of evidence on record to prove the alleged disobedience of the ex-parte interim injunction order of Sub-Divisional Officer. Another plea given by the non-petitioners for appointment of receiver is that the petitioner have disobeyed ad-interim ex-parte injunction order of Sub-Divisional Officer. In this regard there is not an iota of evidence on record to prove the alleged disobedience of the ex-parte interim injunction order of Sub-Divisional Officer. It is significant to observer here that if an order of Sub-Divisional Officer is violated, it is for the Sub-Divisional Officer concerned to take appropriate remedial action; it is not for Settlement Officer-cum-Revenue Appellate Authority to act upon the alleged infringement of Sub-Divisional Officer's order when Sub-Divisional Officer has not made any complaint about such infringement. It is also worthwhile to mention here that a contempt proceeding earlier initiated at the instance of the non-petitioners was got dropped by the Sub-Divisional Officer. This makes abundantly clear that no infringement against the ex-parte interim order of Sub-Divisional Officer was ever proved, it is significant to observe here that ultimately Sub-Divisional Officer rejected the application for appointment of receiver as the suit land was not found to be 'in-medio'. But Revenue Appellate Authority appointed receiver by the impugned judgment on the ground that the petitioners disobeyed ex-parte interim order of Sub-Divisional Officer - which is not proved as discussed above; and secondly on the ground that land is 'in-medio'. But it is not categorically stated as to how the land is 'in medio' when both the parties are co-tenants of the suit land and a regular case for the division of holdings was still pending before the trial Court. A recorded co-tenant cannot be dispossessed of his rightful possession on the land of co-tenancy by appointment of receiver. Appointment of receiver is the harshest remedy which ordinarily should not be invoked against the co-tenants. While holding this, I am placing reliance on 1987 RRD 128, 1995 RRD 640 and 1990 RRD 188. 8. In light of foregoing discussion, the revision succeeds, the impugned judgment dated 22.12.2004 of Settlement Officer-cum-Revenue Appellate Authority Udaipur is set aside and the judgment dated 6.10.2004 of Sub-Divisional Officer, Udaipur is upheld. Pronounced.