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2011 DIGILAW 984 (RAJ)

Bhura Ram v. Board of Revenue

2011-05-10

ARUN MISHRA, PRASHANT KUMAR AGARWAL

body2011
Hon'ble MISHR, CJ.—This intra Court appeal has been filed against the order dated 18.12.2009 passed in S.B. Civil Writ Petition No. 15164/2009. 2. Brief relevant facts for the disposal of this intra Court appeal are that a suit under Sections 88 and 188 of the Rajasthan Tenancy Act for declaration of khatedari rights and permanent injunction was filed by the appellant-plaintiff on the basis of adverse possession over the land in question. The appellant-plaintiff raised ground that he is in possession of the land in question for last so many years, therefore, on the plea of adverse possession he is entitled to be conferred khatedari rights in respect of the land in question. The State Government took the plea that the disputed land was a play ground in which khatedari rights cannot be granted. The Trial Court amongst others framed an issue to be effect whether the khatedari rights accrued to the appellant-plaintiff in the disputed land on the basis of adverse possession. The learned Trial Court declined to confer khatedari rights in favour of the appellant-plaintiff on the ground that the land in question in revenue record stands as a school play ground in which khatedari rights cannot be accrued. 3. The said judgment and decree dated 13.1.2006 passed by the SDO, Amer (District Jaipur) was challenged by way of filing an appeal before the Revenue Appellate Authority, Ajmer. Vide judgment dated 20.10.2006 the learned Revenue Appellate Authority dismissed the appeal filed by the appellant-plaintiff and thereafter, he want in second appeal before the Board of Revenue under Section 224 of the Rajasthan Tenancy Act. 4. Before the Board of Revenue, the appellant-plaintiff filed an application under Order 6, Rule 17, CPC for amendment of appeal. Vide judgment dated 20.10.2006 the learned Revenue Appellate Authority dismissed the appeal filed by the appellant-plaintiff and thereafter, he want in second appeal before the Board of Revenue under Section 224 of the Rajasthan Tenancy Act. 4. Before the Board of Revenue, the appellant-plaintiff filed an application under Order 6, Rule 17, CPC for amendment of appeal. In the amendment application filed by the appellant-plaintiff, it was stated before the Board of Revenue that fact of entry of the disputed land as play ground is incorrect in view of the fact that in the public interest litigation before this Court in D.B. Civil Writ (PIL) Petition No. 9531/2006, reply was filed by the State Government in which a plea was taken by the Government that the land in question belonged to one Ex-Jagirdar Shri Martin De Silva and erroneously entered as school play ground meaning, thereby, the fact of land in question being play ground was refuted by the State Government before this Court, therefore, it was prayed in the application filed under Order 6 Rule 17, CPC before the learned Board of Revenue that necessary amendment may be allowed in the memo of appeal. The Board of Revenue, however, dismissed the application and so also the appeal filed by the appellant-plaintiff vide order dated 6.8.2009. 5. Aggrieved with the aforesaid order, appellant-plaintiff filed the writ petition before the learned Single Bench, which was dismissed by the impugned order dated 18.12.2009. 6. The learned Single Bench has found that the appellant-plaintiff having taken the plea of adverse possession, he may be entitled for conferment of khatedari rights only on that basis, but it is no where stated by him that he is either tenant or sub-tenant of Ex-Jagirdar Shri Martin De Silva, so also, no issue with regard to this fact was framed by the Trial Court; meaning thereby, the appellant-plaintiff was not allowed to make out a new case by the Board of Revenue. It was also found by the learned Single Bench that on both counts advanced by the respondent-State that land in question was entered in the name of play ground of the school, so also, that in fact the land in question belonged to Ex-Jagirdar Shri Martin De Silva and was wrongly entered as play ground of school in the revenue record, the appellant-plaintiff cannot claim any khatedari rights. 7. 7. We have heard learned counsel for the respective parties. 8. Reiterating the submissions made before the learned Single Bench, the learned counsel for the appellant-plaintiff has urged that the plea of the State Government before the SDO was totally incorrect that the disputed land was entered in revenue record as play ground of the school because before this Court in the public interest litigation it was admitted by the Government that erroneously the disputed land was entered as play ground in the revenue record and in fact the land in question belonged to Ex-Jagirdar Shri Martin De Silva, therefore, the application for amendment filed before the Board of Revenue was liable to be allowed and the matter was to be remitted to the Trial Court for deciding the same afresh because the learned Trial Court dismissed the suit on the ground that no khatedari rights can be granted upon the play ground. The counsel submits that all the judgments and orders passed deserve to be set aside and the matter may be remitted to the Trial Court for deciding the same afresh. 9. Per contra, the learned counsels appearing on behalf of the respondents supported the impugned order. 10. We have considered the rival submissions made on behalf of the respective parties. 11. In our considered opinion the contention raised on behalf of the appellant-plaintiff have no merit. It is true that the State Government before the Trial Court took a plea that the land in question in revenue record stands in the name of play ground of school and thus, khatedari rights cannot be granted in the land in dispute whereas in the public interest litigation filed before this Court bearing D.B. Civil Writ (PIL) Petition No. 9531/2006 in the reply filed by the Government a plea was taken that the land in question belonged to Ex-Jagirdar Shri Martin De Silva, but the appellant-plaintiff has to stand on his legs. Having taken the plea of adverse possession, he can succeed only when he proves that khatedari rights accrued in his favour in the land in question on the basis of adverse possession. It is irrelevant whether the land in dispute stands in the name of school play ground or it belonged to some Jagirdar. Having taken the plea of adverse possession, he can succeed only when he proves that khatedari rights accrued in his favour in the land in question on the basis of adverse possession. It is irrelevant whether the land in dispute stands in the name of school play ground or it belonged to some Jagirdar. It is not pleaded by the appellant-plaintiff that the land in question belonged to Ex-Jagirdar Shri Martin De Silva and he trespassed upon the land in dispute on a specific date and by lapse of time he acquired the khatedari rights on the basis of adverse possession. He has also not taken a plea that he was either tenant or sub-tenant of Ex-Jagirdar Shri Martin De Silva. It is pertinent to note that the appellant-plaintiff moved the application for amendment only in memo of appeal taking some new grounds on the basis of the plea taken by the Government in the public interest litigation filed before this Court. The appellant-plaintiff never sought amendment in the plaint filed before the Trial Court. When the suit filed by the appellant-plaintiff is only on the basis of adverse possession and he never made above averments, the submissions made on his behalf have no substance. The learned Single Bench with a reasoned order has dismissed the writ petition which can not be interfered by this Court. 12. Consequently, the intra Court appeal is hereby dismissed at the admission stage itself. The stay application also stands dismissed.