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2012 DIGILAW 362 (RAJ)

Mangal Ram v. Board of Revenue Rajasthan

2012-02-08

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—The writ petition has been filed challenging the order dated 8.12.2011, passed by the Board of Revenue, Rajasthan Ajmer (herein after `the Board'), dismissing petitioners-plaintiffs (herein after `the plaintiffs) revision petition against the order dated 29.11.2011 passed in Appeal No.60/2011 by the Revenue Appellate Authority, Sikar, whereby the Appellate Authority had in turn upheld the order dated 29.6.2011, passed by the Sub Divisional Officer Jhunjhunu dismissing plaintiffs' application for Temporary Injunction seeking inter alai to restrain the private respondents from change of land use from agricultural to non agricultural from amongst a parcel of land alleged to be jointly held by petitioners and private respondents No. 4 to 9. 2. The facts of the case are that plaintiffs filed a revenue suit against respondents-defendants No. 4 to 9 (herein after `defendants') before the Sub Divisional Officer Jhunjhunu, along with an application for temporary injunction under Section 212 Rajasthan Tenancy Act, 1955 (herein after `1955 Act'). It was contended by the plaintiffs that the land indispute was ancestral agricultural land holding to their forefathers and that of the defendants No. 4 to 9 in Khasra No. 814 admeasuring 62 Bighas 12 Biswas in village Bakara, Tehsil and District Jhunjhunu and even though being cultivated separately by plaintiffs and defendants No. 4 to 9 after due demarcation, was not legally divided by way of a formal partition. It was submitted that defendant No. 4 sold land in his possession through a registered sale-deed entailing a transfer of undivided khatedari land to a muslim who was stated to have changed the land use from agricultural to non agricultural without any authority of law. In the aforesaid factual context it was pleaded by the plaintiffs that a temporary injunction be granted against respondents restraining them from acting upon the sale-deed and handing over possession of disputed land to a non-family member and change of land use from agricultural to non agricultural till a formal partition under order of competent court, by metes and bound, was made. 3. The defendants No. 4 to 10 contested the application for temporary injunction stating therein that the land, purportedly in joint ownership, had in fact been subjected to an ancient oral partition by the ancestors of the parties to the suit and that their successors in interest had been and were in peaceful cultivation and continuous possession of their respective shares as owners for several decades. It was stated that this fact had also been admitted by the plaintiffs earlier in their written statement filed on 6.6.1983 in a suit No. 754/1983 before a revenue court. It was thus submitted that the application for temporary injunction under Section 212 of 1995 Act was without any prima facie merit as also without balance of convenience and that no irreparable loss to plaintiffs could be made out and therefore the application ought to be dismissed. The Sub Divisional Officer Jhunjhunu vide order dated 29.6.2011 dismissed the application for temporary injunction, which order was upheld by the Revenue Appellate Authority Sikar vide order dated 29.11.2011. The said concurrent finding was affirmed by the Board vide order dated 8.12.2011. 4. Heard learned counsel for the parties, and perused the material available on record of the writ petition. 5. Learned counsel for the plaintiffs, petitioners herein, has submitted that concurrent findings of the Revenue Appellate Authority and Sub Divisional Officer as upheld by the Board are erroneous, inasmuch as without a formal partition of ancestral property, no part of "ancestral" land could have been sold or otherwise alienated by the defendants No. 4 to 9 or any of them without the consent of the plaintiffs nor could such land be subjected to change of land use without their consent. Reliance has been placed on Anand Prasad Agarwalla vs. Tarkeshwar Prasad (2001) 5 SCC 568 ) and Rania vs. Jagdish Chandra ( AIR 2003 Raj. 72 ). 6. Counsel for defendants, respondents herein, submits that the entire edifice of plaintiffs case is based on denial of the ancient oral partition which had been acted upon for several decades. It is submitted that the land in dispute had been orally partitioned by the ancestors of the plaintiffs and contesting defendants No. 4 to 9, and subsequent thereto each of the party was in unquestioned ownership and possession of its share of the land. It was submitted that in an earlier proceeding in revenue suit No. 754/1983, the plaintiffs had submitted written statement on 6.6.1983 and admitted the ancient oral partition of land by their ancestors and that subsequent thereto each party was using the land of its share as absolute owners without any interference from the other party. It was submitted that in an earlier proceeding in revenue suit No. 754/1983, the plaintiffs had submitted written statement on 6.6.1983 and admitted the ancient oral partition of land by their ancestors and that subsequent thereto each party was using the land of its share as absolute owners without any interference from the other party. It was submitted that thus the plaintiffs, apart from lack of merit in the case, were also estopped by their conduct in taking a stand contradictory to one taken before a court of law in their written statement duly verified before an Oath Commissioner/Notary. 7. Counsel has further pointed out that an agreement was also entered into between the parties on 8.7.1994, duly attested by Notary Public, wherein the parties had recorded the factum of partition and separate ownership as also the use of their respective shares without any restraint or hindrance subsequent thereto. It was submitted that merely because the land falling in the share of the defendants, by virtue of its proximity to town had increased in value, a false case has been foisted by the plaintiffs, suppressing the fact of the earlier admission about the ancient oral partition of land by their ancestors acted upon for decades, the written statement in court and the subsequent affirmation in the agreement dated 8.7.1994. It was submitted that in the facts of the case the plaintiffs and defendants No. 4 to 9 were absolute owners, in possession of their respective parcels of land and consequently the defendants were free to execute the sale-deed in respect thereof. Counsel for defendants has further submitted that in any event of the matter, this court under Article 227 of the Constitution of India ought not interfere with concurrent findings of the statutory authorities, which have further been affirmed by the Board. 8. Having heard learned counsel for the parties and having perused the impugned order dated 8.12.2011 passed by the Board of Revenue affirming the concurrent findings in the order dated 29.11.2011 passed by Revenue Appellate Authority, Sikar, and order dated 29.6.2011, passed by the Sub Divisional Officer Jhunjhunu, I am of the view that the orders of the courts below are well reasoned and speaking orders based upon findings of facts with regard to an ancient oral partition conferring absolute ownership rights on the respective parties, including the right to alienate or transfer the land. There was adequate material before the courts below for prima facie finding an ancient oral partition of the land in dispute by the ancestors of the parties. With the aforesaid finding the inexorable consequence was that the application for temporary injunction moved by the plaintiffs was without any iota of a prima facie balance of convenience or potential of irreparable loss and deserved dismissal. I find no perversity, misdirection in law or issue of jurisdiction in the orders impugned passed by the courts below. 9. The judgments sought to be relied upon by the counsel for the plaintiffs, Anand Prasad Agarwalls vs. Tarkeshwar Prasad (supra) and Rania vs. Jagdish Chandra (supra) are absolutely in-apposite to the facts of the case before this court. In the case of Anand Prasad Agarwalla (supra) the Supreme Court has merely held that, in the case then at hand, the possession of the plaintiffs was prima facie established, inter alia, on the basis of records of rights consequent to which an order of injunction was justly and fairly granted. Quite obviously, the case cannot have any relevance to the case presently at hand before this court for the simple reason that for in the aforesaid case of Anand Prasad Agarwala (supra), the issue of an admitted ancient oral partition with exclusive possession of the parties to partition of their respective shares was not under consideration. In the present case plaintiffs seeking an order of injunction were not admittedly in possession of the property and it is trite that a person not in possession cannot seek an injunction. The only case set up by the plaintiffs in the present case before the courts below was a joint ownership based on a mere entry in the record of rights. The fact of possession has to be curved out not so much from the record of rights, i.e. Jamabandi but the Khasra Girdawari which relates to the possession of the cultivating tenant. Further this court cannot overlook the fact that revenue entries (Jamabandis) are merely fiscal in nature and not conclusively indicative of title and ownership. The fact of possession has to be curved out not so much from the record of rights, i.e. Jamabandi but the Khasra Girdawari which relates to the possession of the cultivating tenant. Further this court cannot overlook the fact that revenue entries (Jamabandis) are merely fiscal in nature and not conclusively indicative of title and ownership. On the contrary in the facts of the case there was prima facie material before the courts below of an ancient oral partition and the fact of it being put in operation and being acted upon buttressed by material on record showing that the petitioners-plaintiffs had nothing whatsoever to do with the ownership or possession of the land in respect of which they sought an injunction. The case of Rania vs. Jagdish Chandra (supra) was also a case where the Rajasthan High Court had proceeded to grant injunction on the finding that the plaintiff was prima facie in possession. In the facts of the present case as detailed herein above, the said judgment of this court relied upon by the counsel for the plaintiffs is quite irrelevant. Additionally it would be in order to state that the grant or refusal of injunction is an exercise of discretion by a Court, no doubt, controlled by the facts of the case and established legal principles. From the consideration of the impugned order passed by the Board of Revenue upholding and affirming the orders of the two revenue courts below, I am of the view that no illegality or irregularity in the exercise of discretion by the courts below can be even remotely attributed. 10. The instant writ petition is palpably a misuse of the statutory jurisdiction conferred on this court under the Constitution. 11. Counsel for the plaintiffs has not been able to deny that in a suit No. 754/1983 the plaintiffs did file a written statement admitting to the ancient oral partition of the land in dispute by their ancestors and that of the private respondents. Nor has the agreement executed in the year 1994 attested by the Notary Public reiterating the fact of partition having been denied. Despite this the plaintiffs have resorted the instant proceedings in a fourth innings having failed before three courts concurrently. This is a gross case of abuse of the process of this court. Therefore, this a case which needs to be visited by exemplary costs while being dismissed. Despite this the plaintiffs have resorted the instant proceedings in a fourth innings having failed before three courts concurrently. This is a gross case of abuse of the process of this court. Therefore, this a case which needs to be visited by exemplary costs while being dismissed. 12. Dismissed with costs of Rs.10,000/-, which is to be deposited with the Rajasthan State Legal Services Authority, Jaipur within a period of three weeks. 13. A copy of this order be sent to the Rajasthan State Legal Services Authority, Jaipur.