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2011 DIGILAW 1696 (RAJ)

Purushottam v. Har Sahai

2011-08-11

ARUN MISHRA, BELA M.TRIVEDI

body2011
Hon'ble MISHRA, CJ.—Heard finally with the consent of the learned counsel for the parties. 2. The intra-Court appeal has been preferred as against the common order dated 27.7.2011 passed by the Single Bench in Civil Writ Petitions No. 8054/2011 & 7259/2011. 3. Writ petitions were preferred by Har Sahai before the Single Bench in which relief has been prayed to take action against respondent No. 6 Purushottam who wanted to dispossess the petitioner from land in question. Prayer has also been made for protecting the lawful possession of the petitioner and to direct the respondents No. 1 to 4 to maintain the law and order and thereby protecting the life and liberty of the petitioner and his family members. 4. It is not disputed that land has been allotted to the appellant's predecessor under Rule 14 of the Rules of the Rajasthan Land Revenue (Allotment of Land for Agriculture Purposes) Rules, 1970. Thereafter, the allottee has alienated the land in favour of appellant Purushottam on 20.12.2003 by registered sale deed. An application was filed after 16 years by the respondent Har Sahai to cancel allotment claiming that he was in possession of the land and the land could not have been allotted to Nathu and Ladu predecessor in title of the appellant. The application was dismissed by the Additional Collector, District Dausa. On appeal being preferred before the Revenue Appellate Authority, same was partly allowed. The case was remanded back to the Additional District Collector, Dausa to decide the same afresh. The order of remand was questioned before the Revenue Appellate Authority by Purushottam in revision petition which was dismissed., of which review has been applied for and the same is pending consideration before the Board of Revenue. The record of the case was called by the Board of Revenue for deciding the review application filed by Purushottam. 5. Thereafter, it appears that first information report was filed by respondent Har Sahai, on the basis of which proceedings were drawn against the parties and the parties were bound down to maintain peace directing that no action shall be taken by the parties. Writ petitions were filed by respondent Har Sahai praying for the aforesaid reliefs. The Single Bench has disposed of the writ applications and directed the Additional District Collector to decide the case. Writ petitions were filed by respondent Har Sahai praying for the aforesaid reliefs. The Single Bench has disposed of the writ applications and directed the Additional District Collector to decide the case. The Board of Revenue has been directed to remit the record to the Additional District Collector to decide the case afresh. It has also been ordered that Tehsildar Lalsot would take possession of the land and in case, there is any crop standing or has been cultivating be cut and proceeds be kept in deposit to be disbursed under order of Revenue Appellate Authority. Both the parties have been restrained from entering upon the land in dispute. Aggrieved by the order, intra-Court appeals have been preferred by Purushottam. 6. Mr. Hemraj Gaur and Mr. Manoj Bhardwaj, learned counsel for the appellants have submitted that there was no prayer made for appointment of receiver in the writ application or in the interim writ applications. It was not appropriate to entertain the writ applications filed for the purpose of protecting the possession. The petition was filed under the guise to protect life and liberty and the relief, which has been granted, was not even prayed for. Petitions could not have been entertained for protecting the possession. It has also been pointed out that SDO has passed the order of injunction on 2.5.2011 restraining respondent Har Sahai from interfering in the possession of the appellant Purushottam. The disputed question of fact with respect to possession could not have been determined in the writ application. Thus, direction to take over possession of land by Tehsildar was wholly uncalled for the unwarranted. Record was required by the Board of Revenue for deciding the review application. Review application would be rendered infructuous in case pursuant to be the order of remand the case is decided by the Additional Collector. Thus, Board of Revenue be directed to decide the pending review application first and thereafter, record may be ordered to be remitted to Additional District Collector. 7. Mr. B.R. Rana, learned counsel for the respondent No. 1 has supported the order. However, he has submitted that prayer for appointment of the receiver was not made. Prayer was made only for pro-tecting the possession. As the law is being taken in hands by the appellant Purushottam, the order is appropriate. 7. Mr. B.R. Rana, learned counsel for the respondent No. 1 has supported the order. However, he has submitted that prayer for appointment of the receiver was not made. Prayer was made only for pro-tecting the possession. As the law is being taken in hands by the appellant Purushottam, the order is appropriate. In the facts and circumstances of the case, no case for interference is made out in the appeals. 8. After hearing learned counsel for the parties, we are of the opinion that writ application was essentially filed for the purpose of protecting the possession. When the matter was pending before the Board of Revenue and remedy was available before the Revenue Courts, it was not appropriate to take recourse to the writ applications particularly for protecting the possession. It appears that the ultimate relief with respect to life and liberty was not pressed. Main relief was pressed with respect to possession. For protecting the possession, writ application is not appropriate remedy particularly when it is disputed questions of fact in the petition. It was not appropriate to maintain writ application for protecting the possession of land which is function of Civil Court/Revenue Courts. It is not in dispute that no particular order passed by any authority with respect to possession was questioned by the respondent Har Sahai in the writ applications which were preferred. Thus, we are of the considered opinion that in absence of prayer for appointment of receiver which is drastic step, it was not open to appoint receiver that too in the writ proceedings by asking Tehsildar to take possession of property. Thus, order directing Tehsildar to take possession and to cut the crop was wholly uncalled for and is liable to be set aside. 9. We are also not happy as to the order passed by the SDO on 2.6.2011 in exparte, directing protecting the possession of appellant, Purushottam. In view of the fact that writ application was pending in this Court, the interim order had been passed on 24.5.2011. It was not appropriate for SDO to pass aforesaid order. 9. We are also not happy as to the order passed by the SDO on 2.6.2011 in exparte, directing protecting the possession of appellant, Purushottam. In view of the fact that writ application was pending in this Court, the interim order had been passed on 24.5.2011. It was not appropriate for SDO to pass aforesaid order. Thus, we direct that the order passed by the SDO shall not operate and as agreed by the learned counsel for the parties, status quo with respect to possession shall be maintained and parties are at liberty to approach the SDO to seek further order in this regard in pending matter in which order was passed on 2.6.2011. The SDO to considered the matter and decide the question in accordance with law. Till then, status quo as to possession existing as on today shall be maintained by the parties. 10. As the view application is pending before the Board of Revenue, we direct the Board of Revenue to decide the review application within a period of two weeks from the date of receipt of the certified copy of this order. Tomorrow is the date fixed before the Board of Revenue. Thereafter, record to remitted to the Additional District Collector. 11. The impugned order is set aside. The intra-Court appeals are disposed of in terms of aforesaid directions. Stay application are also dismissed. Parties to bear respective costs.