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2012 DIGILAW 1614 (RAJ)

Mathura Prasad v. Board of Revenue

2012-07-24

ARUN MISHRA, NARENDRA KUMAR JAIN

body2012
Hon'ble JAIN-I, J.—Heard learned counsel for the parties. 2. The petitioners/appellants have preferred this intra Court appeal against order dated 10.09.2003 passed by the Single Bench, whereby their writ petition, i.e. S.B. Civil Writ Petition No. 3533/1996, against order dated 01.03.1994 passed by the Revenue Board, has been disposed off. 3. Briefly stated the facts of the case are that land bearing Khasra No. 74, measuring 2 Bighas; Khasra No. 75, measuring 6 Biswas; Khasra No. 76, measuring 14 Biswas and Khasra No. 611, measuring 1 Bigha 5 Biswas situated in village Basaiya-kalan, Tehsil Nadbai, District Bharatpur were regularised in favour of the appellants on the basis of their alleged old possession. The villagers of village Basaiya-kalan filed an application under rule 14(4) of the Allotment Rules, challenging the allotment/regularisation of the aforesaid land in favour of the appellants, contending that the land in question is recorded as “Ghair-mumkin Pokhar” and the same could not have been regularised in favour of the appellants. The Additional Collector dismissed the application of the villagers. Thereafter, the villagers preferred an appeal before Revenue Appellate Authority, Bharatpur, who vide its judgment and order dated 29.10.1988 allowed the appeal of the villagers and cancelled the allotment/regularisation of the aforesaid land in favour of the appellants. Thereafter, the appellants preferred an appeal before the Revenue Board, which was dismissed vide judgment dated 01.03.1994. The appellants, thereafter, preferred writ petition before the Single Bench, which was initially dismissed vide order dated 06.04.1998. The Division Bench of this Court vide its judgment dated 02.12.2002 set aside the order passed by the Single Bench and remanded the matter back to the Single Bench for fresh decision. Thereafter, learned Single Judge vide its order dated 10.09.2003 disposed off the writ petition with some observations. Hence, this intra Court appeal has been filed by the appellants. 4. During pendency of this appeal, the appellant have filed an application on 29.2.2012 under Order 41 Rule 27 CPC for placing on record the photostat copies of Parcha Settlements and Jamabandi. The respondents have filed reply to the application on 6.7.2012 with the prayer that application under Order 41 Rule 27 CPC be dismissed. The respondents along with their reply to application have also annexed Annexs.R/1 and R/2, i.e. Copy of Milan Kshetraphal (comparative chart of old and present/new Khasra numbers) and Copy of Jamabandi. The respondents have filed reply to the application on 6.7.2012 with the prayer that application under Order 41 Rule 27 CPC be dismissed. The respondents along with their reply to application have also annexed Annexs.R/1 and R/2, i.e. Copy of Milan Kshetraphal (comparative chart of old and present/new Khasra numbers) and Copy of Jamabandi. Respondents in their reply have also stated that a school has already been constructed in land bearing Khasra No. 75(present Khasra No. 145). From Jamabandi annexed with the reply, it also appears that the land bearing new Khasra No. 731 (old Khasra No. 611) is entered as “Gair-mumkin school field”. 5. So far as application under Order 41 Rule 27 CPC filed by the appellants is concerned, it is sufficient to mention that both the documents annexed with the application are neither original nor certified copies. They are only photostat copies of the true copies, therefore, the same cannot be taken on record or considered as evidence. That apart, these documents were very much available with the appellants prior to filing of the writ petition before the Single Bench and special appeal before this Court and no satisfactory expla-nation has been furnished by the appellants in the application for not filing the same before Revenue Appellate Authority, Revenue Board, Single Bench or before this Court along with the appeal. In these circumstances, we find that looking to all the facts and circumstances of the case, the application under O. 41 R. 27 CPC cannot be allowed and the same is, accordingly, dismissed. 6. Submission of learned counsel for the appellants is based upon two documents annexed with the application under Order 41 Rule 27 CPC, which we have already rejected. His submission is that Revenue Appellate Authority, Revenue Board and the Single Bench committed an illegality in not considering a fact that land in dispute was recorded as “Banjar and Barani-deh” in Samvat Year 2038, therefore, it was rightly regularised in favour of the appellants and there was no bar for its regularisation. He further submitted that Revenue Appellate Authority and Revenue Board both committed an illegality in treating the land in dispute as “Gair-mumkin Pokhar Jharda & Rasta”. He further submitted that Revenue Appellate Authority and Revenue Board both committed an illegality in treating the land in dispute as “Gair-mumkin Pokhar Jharda & Rasta”. He submitted that nature of land in dispute was changed by settlement authority during settlement, but at the time of regularisation it was shown as “Banjar and Barani-deh”, therefore, there was nothing wrong in passing an order of regularisation of land in favour of the appellants by Sub-Divisional Officer. 7. We have considered the submissions of learned counsel for the parties and examined the impugned orders and judgments passed by the Single Bench, Revenue Board, and Revenue Appellate Authority as well as other orders, which are available on record. 8. Revenue Board in its judgment dated 01.03.1994 as well as Revenue Appellate Authority in its judgment dated 29.10.1988 have considered the submissions of the appellants and examined the revenue record in detail. Revenue Board as well as Revenue Appellate Authority both have recorded a concurrent finding of fact that the land bearing Khasra No. 74, 75 and 76 were recorded as “Gair-mumkin Pokhar Jharda & Rasta” in Khasra-girdawari for Samvat Year 2030. Settlement department is not authorised to change the entries of revenue record. In these circumstances, land bearing Khasra Nos. 74, 75 and 76 could not have been regularised in favour of the appellants. So far as land bearing Khasra No. 611 is concerned, the Revenue Board in its judgment has observed that this land is recorded as “Ghair-mumkin Banjar” and Revenue Appellate Authority has already recommended for regularisation of the same in favour of the appellants, if they fulfill their other conditions. But in view of the illegality committed in the regularisation of other Khasra Nos. 74, 75 and 76, it cannot be sustained and looking to the nature of the land relating to public utility, Revenue Board affirmed the order passed by Revenue Appellate Authority. Learned Single Judge, while disposing off the writ petition, has already observed in respect of land bearing Khasra No. 611, measuring 1 Bigha 5 Biswas, which is recorded as “Barani Deh” that the appellants are at liberty to represent before the allotment committee afresh. 9. So far as nature/classification of land is concerned, there is concurrent finding of fact by Revenue Appellate Authority as well as Revenue Board and the same has been affirmed by the Single Bench also. 9. So far as nature/classification of land is concerned, there is concurrent finding of fact by Revenue Appellate Authority as well as Revenue Board and the same has been affirmed by the Single Bench also. In these circumstances, we find no force in any of the submissions of learned counsel for the appellants. 10. Apart from above, it is also relevant to mention that order of regularisation of land in favour of appellants was challenged by villagers of Village Basaiya-kalan, represented through Hukam Chand and 23 others, by way of an application under rule 14(4) before Additional Collector and by way of an appeal before Revenue Appellate Authority. They were impleaded as party/Respondent No. 1 before Revenue Board by appellants in their appeal, but petitioners/appellants have not impleaded them as party/respondent in writ petition or in this intra Court appeal, therefore, this intra Court appeal is also liable to be dismissed on the ground of non-joinder of necessary party. 11. In view of above discussion, we find no merit in this intra Court appeal and the same is, accordingly, dismissed with no order as to costs. Stay application also stands dismissed.