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2012 DIGILAW 476 (RAJ)

Harchand Singh v. Board of Revenue

2012-02-17

ARUN MISHRA, KAILASH CHANDRA JOSHI

body2012
Hon'ble JOSHI, J.—This intra court appeal preferred by appellant-petitioners is directed against the order dated 03.11.2011 passed by the Single Bench in S.B. Civil Writ Petition No.9804/2011, Harchand Singh & Ors. vs. Board of Revenue, whereby the Single Bench dismissed the writ petition filed by the present appellants. 2. The writ petition was filed against the order dated 09.09.2011 of the Board of Revenue, Rajasthan, Ajmer, whereby the second appeal preferred by the appellants against the order dated 23.07.2007 of the Revenue Appellate Authority, Sri Ganganagar passed in Appeal No.48/2007 affirming the decree passed by the court of S.D.O. (Revenue), Sri Ganganagar in favour of the respondent No.4-plaintiff was dismissed. 3. The relevant facts in nutshell are that one Shri Mukund Lal was holding agriculture land ad measuring 12 bighas and 10 biswas in Square No.38 old (37 new), Kila No.13/0-10, 14 to 25/12 in Chak No.34 GG. After the death of Mukund Lal, 2/3rd share was recorded in the name of Mangali Devi d/o Mukund Lal and 1/3rd share was recorded in the name of Rampyari w/o Ramlal, the daughter-in-law of Mukund Lal. Mangali Devi sold her 2/3rd share in favour of the petitioners/defendants and accordingly, the mutation of the land was recorded in their name. 4. The respondent No.4/plaintiff – Smt. Rampyari filed a suit under Sections 88, 53, 183 of the Rajasthan Tenancy Act, 1955 (in short, “the Act”) in the court of S.D.O., Sri Ganganagar with the averments that the petitioners/defendants have illegally taken away the possession of entire 12 bighas and 10 biswas land and they are not permitting her to cultivate the land of her share. The respondent-plaintiff prayed that she may be declared Khatedar of 1/3rd share of the land and the possession of the same may be handed over to her. 5. The suit was contested by the petitioners/defendants by filing a written statement alleging that they are cultivating the land for more than 20 years and therefore, they have become Khatedar of the land and Khatedari rights of the respondent/plaintiff stand extinguished by virtue of the provisions of Section 63(4) of the Act. The petitioners/defendants also filed a counter claim for declaring them as Khatedar of 1/3rd share in the land of the respondent/plaintiff claiming title by adverse possession. 6. On the basis of the pleadings of the parties, the trial court framed the issues. The petitioners/defendants also filed a counter claim for declaring them as Khatedar of 1/3rd share in the land of the respondent/plaintiff claiming title by adverse possession. 6. On the basis of the pleadings of the parties, the trial court framed the issues. On behalf of the plaintiff, she examined herself and some more witnesses and documentary evidence was also produced. Despite oppor-tunities being granted, the petitioners/defendants did not lead any evidence. 7. After due consideration of the evidence on record, the trial court decreed the suit preferred by the respondent/plaintiff for division of the holdings and appointed commissioner to prepare the proposal for division, so as to hand over the possession of 1/3rd portion of the land to the respondent/ plaintiff. The counter claim preferred by the petitioners/defendants was dismissed. 8. Aggrieved by the judgment and decree passed by the trial court, the petitioners preferred an appeal before the Revenue Appellate Authority, which after due consideration of the evidence on record affirmed the findings arrived at by the trial court on all the issues. The second appeal preferred by the petitioners/defendants was also dismissed by the Board of Revenue. Hence, the writ petition was filed by the petitioners-appellants before the Single Bench. The Single Bench after considering the arguments of the learned counsel for the petitioners and material available on record, dismissed the writ petition by the impugned order, against which this intra court appeal has been preferred. 9. The learned counsel for the appellants contended that the impugned order passed by the Single Bench is absolutely illegal, unreasoned and non-speaking and the same deserves to be quashed and set aside. It is contended that the Single Bench has failed to appreciate various grounds raised by the appellants and the findings of the Single Bench are absolutely perverse and contrary to the record. 10. It is contended that the appellants were in possession of the land in question on the basis of the 'Thekanama' and therefore, even after termination of the contract, their possession cannot be said to be possession of a trespasser and therefore, the suit under Section 183 of the Act was not maintainable. It is contended that specific objection in this regard was taken by the appellants, but the same was not considered by the courts below. It is contended that specific objection in this regard was taken by the appellants, but the same was not considered by the courts below. It is contended that the appellants have perfected their title over the land in question by adverse possession and therefore, the court below seriously erred in decreeing the suit preferred by the respondent-plaintiff. It is contended that in view of the continuous possession over the land in question for more than 20 years after death of Mohanlal, the appellants have become Khatedar of the land in question and therefore, the courts below have erred in rejecting the counter claim preferred by the appellants. It is contended that all the aforesaid points were raised before the Single Bench, but the Single Bench failed to consider the relevant aspects of the matter and passed the impugned order, which deserves to be quashed and set aside. 11. We have considered the contentions raised by the learned counsel for the appellants and perused the impugned order passed by the Single Bench. 12. The Single Bench while passing the impugned order has observed that adverse possession has to be pleaded and proved by producing cogent evidence, but admittedly, in the instant case, no evidence was lead by the appellant-defendants to prove their possession over the land to be adverse to the rights of the respondent-plaintiff. The Single Bench further observed that in the written statement filed on behalf of the appellant-defendants, there was no objection regarding maintainability of the suit under Section 183 of the Act. The Single Bench further observed that the adverse possession of the appellants has not been proved and therefore, the adverse possession of the appellants cannot be said to be lawful. The Single Bench further observed that the respondent-plaintiff filed the suit for division of holdings (Section 53), declaration of her Khatedari right and for ejectment and possession, therefore, even assuming that the reference of provisions of Section 183 is wrongly made, it does not affect in any manner the ultimate decree passed by the court below. In our considered opinion, the Single Bench has taken into account all the relevant aspects of the matter and rightly appreciated the material available on record. In our considered opinion, the Single Bench has taken into account all the relevant aspects of the matter and rightly appreciated the material available on record. The Single Bench has considered all the grounds raised by the appellants and we find no error, illegality or infirmity in the findings recorded by the Single Bench and the impugned order does not call for any interference in this intra court appeal. The appeal is bereft of any merit and the same deserves to be dismissed. 13. Consequently, this intra court appeal is dismissed. A copy of this judgment be sent to the respondents.