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Rajasthan High Court · body

2011 DIGILAW 2702 (RAJ)

Chutra v. State

2011-12-08

GOVIND MATHUR

body2011
Hon'ble MATHUR, J.—To question correctness of the judgment dated 03.11.1997 passed by the Board of Revenue, Rajasthan, Aimer this petition for writ is preferred. The Board of Revenue by the judgment aforesaid accepted the reference made to it by the Collector, Barmer as per the provisions of Section 232 of the Rajasthan Tenancy Act, 1955 (hereinafter referred as the Act of 1955). 2. The factual matrix necessary to be noticed is that the petitioners preferred revenue suit before the Court of Sub-Divisional Officer-cum-Assistant Collector, Barmer as per the provisions of Section 88-89 of the Act of 1955, with an assertion that they are having a cultivatory possession over the land, which is essentially a part of Khasra No. 78, but remained un-recorded due to error on the part of settlement department while undergoing survey operations. A return was filed on behalf of the defendants and after considering the same, three issues were framed in following terms : ^^¼1½ D;k oknxzLr Hkwfe jdck 260 ch?kk 4 fcLok eStk& ekStklj ds lEcU/k esa losZ dh Hkwy ds dkj.k mldk vafdr cUnksoLr Hkw vfHkys[k esa ugha gqvkA ¼oknhx.k½ ¼2½ vk;k oknhx.k oknxzLr Hkwfe dks vihu [kkrsnkjh ?kksf"kr djokus ds vf/kdkjh gSA ¼oknhx.k½ ¼3½ lgk;rkA** 3. The Court of Assistant Collector vide the judgment dated 20.2.1990 accepted and decreed the suit by holding that the land in question is situated adjacent to Khasra No. 78 Village Bhajasar in south side and that is not entered in revenue record, the plaintiff was having cultavitory possession on the land in question even prior to the enforceability of the Act of 1955. No appeal was filed to challenge the judgment and decree passed by the Assistant Collector. However, the Collector, Barmer while exercising powers under Section 232 of the Act of 1955 made a reference to the Board of Revenue on 28.7.1997, and that came to be accepted vide judgment dated 03.11.1997. 4. The Board of Revenue held that no adequate evidence was available to establish that the land in question was under cultivatory possession of the plaintiff, either as sub tenant or tenant, when the Act of 1955 came into force. Accordingly, the judgment and decree dated 20.2.1990 was cancelled and a direction was given to record the land in dispute as `Sivaychak'. 5. Accordingly, the judgment and decree dated 20.2.1990 was cancelled and a direction was given to record the land in dispute as `Sivaychak'. 5. A review petition preferred by the plaintiff-petitioner, as per the provisions of Section 229 of the Act of 1955 also came to be rejected by the Board of revenue, vide order dated 28.2.1998, hence, this petition for writ is preferred to question correctness, validity and proprietory of the judgment dated 03.11.1997, passed by the Board of Revenue, and also the order passed in the review petition. 6. The submission of learned counsel for the petitioner is that the Assistant Collector quite meticulously considered the evidence available on record, and reached at the conclusion that the land in dispute remained un-recorded, while undergoing the course of settlements. A finding was also given by relying upon the evidence available that the plaintiff petitioners were having possession over the land in question. The findings so given are finding of fact and those could not have been disturbed by the Board of Revenue if that was not perverse. 7. As per learned counsel all the tenants of the lands adjacent to the land in dispute in quite unambiguous terms stated before the trial court that the present petitioners were having cultivatory possession over the land even prior to the enforceability of the Act of 1955. 8. While meeting with the arguments advanced, the submission of learned counsel for the respondent is that the Board of Revenue, after examining the entire material available on record, reached at the conclusion that no adequate evidence was available to reach at a conclusion, that the plaintiff petitioners were having possession on the land in dispute , when the Act of 1955 came into force. 9. Heard learned counsel for the parties. 10. The Board of Revenue, by the judgment dated 03.11.1997 accepted the reference made to it on the count that sufficient evidence was not available to reach at the conclusion, that in Samvat 2012, the plaintiff petitioners were having any cultivatory possession on the land in question. 11. The Board of Revenue, so far as the Issue No. 1 is concerned, accepted the finding given by the Assistant Collector, that the land in question was not entered in the revenue record at the time of settlements. 11. The Board of Revenue, so far as the Issue No. 1 is concerned, accepted the finding given by the Assistant Collector, that the land in question was not entered in the revenue record at the time of settlements. As such, the only question deserves to be considered is whether the plaintiff petitioners were having cultivatory possession on the land in question or not when the Act of 1955 came into force? To establish the possession, the testimony of PW/4 Chainaram, PW/5 Heeraram and PW/6 Durgaram was examined. These persons are the tenants of neighboring lands. The Assistant Collector also made a site inspection and by relying upon the statements of tenants of neighboring lands and also the site inspection, gave a definite finding about the possession of the plaintiff petitioners, on the land in question. 12. The Board of Revenue, under the order impugned has not disbelieved the tenants of the neighboring lands, who deposed in favour of the plaintiff petitioners, but held that the evidence given by them is not sufficient to gave a definite finding about the possession of the petitioners. 13. I do not find any just reason to reach at such finding. True it is, that no documentary evidence is produced by the plaintiff petitioners however, the ocular evidence adduced is also required to be believed, if that is not otherwise established as false or not trustworthy. 14. The neighboring tenants in quite unambiguous terms stated about possession of the petitioners since long. No reason as a matter of facts exist to disbelieve them. Beside the above, while considering the issue No. 1, the trial court examined several documents and also the witnesses adduced by the defendant respondents and the finding for issue No.2 is substantiated by that too. As such the findings of the Assistant Collector are based on appreciation of the evidence available. Such definite finding was not open for interference, merely by saying that the same is not adequate. The Board too should have prescribed cogent reasons for that. 15. On examination of record, I am of the opinion that sufficient evidence was available on record to reach at a conclusion, that the land in dispute was not entered in revenue record, at the time of settlements, and at the time of enforcement of the Act of 1955, the same was under cultivatory possession of the plaintiff petitioners. 16. 15. On examination of record, I am of the opinion that sufficient evidence was available on record to reach at a conclusion, that the land in dispute was not entered in revenue record, at the time of settlements, and at the time of enforcement of the Act of 1955, the same was under cultivatory possession of the plaintiff petitioners. 16. Accordingly, this petition for writ is allowed. The judgment dated 03.11.1997 passed by the Board of Revenue, while accepting the reference made to it by the Collector, Barmer, as per the provisions of Section 232 of the Act of 1955 is set aside. The judgment and the decree dated 20.2.1990 passed by the Assistant Collector stands restored.