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2011 DIGILAW 607 (RAJ)

Ram Bharose v. Hardev

2011-03-22

BAJRANG LAL SHARMA, G.K.TIWARI

body2011
Dr. TIWARI, M.—This second appeal has been preferred by the appellant under Section 224 of Rajasthan Tenancy Act, 1955 (hereinafter called as the `Act') being aggrieved by the judgment and decree passed by the Settlement Officer-cum-Revenue Appellate Authority, Kota dated 9.7.2001 (Appeal No. 345/2001.) 2. The brief facts giving rise to this appeal are that Shri Hardev, the respondent filed a regular suit under Section 188 of the Act against the appellants before Sub-Divisional Officer, Baran. The appellant, Shri Ram Bharose also filed a suit before the same Court under Sections 88, 89 and 188 of the Act. As the land in dispute and the parties to the suit were the same the Trial Court consolidated both the suits and framed the issues accordingly. The Trial Court decreed the suit of Shri Hardev, the respondent. The Appellant filed an appeal before the Revenue Appellate Authority, Kota against the judgment and decree passed by the Sub-Divisional Officer. The Revenue Appellate Authority dismissed the first appeal. Thereafter, this second appeal has been preferred in this Court against judgment dated 9.7.2001 of the Revenue Appellate Authority. 3. Heard the learned counsels of both the parties. 4. The counsel for the appellant argued that the appellant was in possession of the land in question and on the very basis of the said possession the allotment of the respondent was cancelled. He contended that since the respondent was never in possession of the land, therefore, they cannot bring the suit under Section 188 of the Act. He also submitted that the jurisdiction passed by the Court below are illegal and without jurisdiction as there was no pleading of recovery of possession but the Trial Court has also given the relief of handing over of the possession of the disputed land to the respondent. The learned counsel also stated that no issue has been framed by the Trial Court on the basis of his plaint filed before the Trial Court and the impugned judgment and decree does not reflect the legal solution for the consolidated two suits. In support of his arguments he referred a pronouncement mentioned in RRD 1990 page 364. The learned counsel finally contended to quash the judgments and decrees passed by the lower Courts and to accept the appeal. 5. In support of his arguments he referred a pronouncement mentioned in RRD 1990 page 364. The learned counsel finally contended to quash the judgments and decrees passed by the lower Courts and to accept the appeal. 5. The learned counsel for the respondent argued that the respondent, Shri Hardev was allotted 5 bighas of land in 1989 under Rajasthan Colonization (allotment and sale of Government lands in Chambal Project) Rules, 1957. He argued that this allotment was challenged by the appellant but it has been upheld. He submitted that the respondent is bonafide allottee of the land in question and has deposited all instalments with the Government. He contended that the appellant was merely an encroacher and as such he has no locus standi. He submitted that both the suits (Suit No. 33/90 and 56/96) were consolidated by the Trial Court and after consolidation the issues were framed and the judgment and decree was passed after giving due opportunity of hearing to both the parties. He further submitted that there was no adverse possession of the appellant. He also argued that the Court was fully competent to grant any relief under Section 209 of the Act. He referred RRD 1986 page 567 in support of his arguments. He further contended to dismiss the second appeal with costs and to uphold the judgments passed by Courts below. 6. After having heard both the learned counsels and perused the record, it can be safely inferred that Shri Hardev was allotted 5 bighas of the land in the year 1989 under Rajasthan Colonisation (allotment and sale of Government lands in Chambal Project) Rules, 1957. This fact is also undisputed the Shri Hardev, the respondent, has deposited all the instalments with the Government and he is a bonafide allottee. This is also unequivocally clear that the appellant and the respondent filed two separate suits before the Trial Court (Suit No. 33/90 and 56/96). The Trial Court consolidated both the suits on 31.5.1997 and framed common issues on 2.3.2001 based on the pleadings made by the parties to both the suits. Specifically issue No. 4 in this matter is based on the plea/averment made by the appellant. Therefore, it is factually incorrect to state that issues framed do not conform to the submissions of the pleadings made by the appellant in Trial Court. 7. Specifically issue No. 4 in this matter is based on the plea/averment made by the appellant. Therefore, it is factually incorrect to state that issues framed do not conform to the submissions of the pleadings made by the appellant in Trial Court. 7. We have carefully gone through the judgment and decree of the Trial Court. The Trial Court has inferred that during the pendency of the suit the respondent-allottee was dispossessed and therefore his possession should be restored. We are of the opinion that the Trial Court was competent to do so under the provision of Section 209 of the Act. It will be pertinent to refer here the provision of Section 209 of the Act:- Section 209- Granting any relief to which plaintiff is entitled - "In any suit or proceeding, the Court may, on the application of the plaintiff and after framing the necessary issues, grant any relief which the Court is competent to grant and to which it may find the plaintiff entitled, notwithstanding that such relief may not have been asked for in the plaint or application." 8.The above provision of the Act provides ample power to the Trial Court to give such relief to the respondent allottee (plaintiff), which he is entitled to. Therefore, the Trial Court has acted well within its jurisdiction while passing the impugned order. During trial of this case the respondent was dispossessed, therefore his possession has rightly been restored by the Court. 9. We do not find any legal infirmity in the concurrent judgments and decrees passed by the Court below. Therefore, as discussed above, the appeal filed by the appellant is devoid of any merit, hence it stands dismissed. The parties are left to bear the cost.