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2013 DIGILAW 2225 (RAJ)

Koja Ram v. Board of Revenue

2013-12-10

GOPAL KRISHAN VYAS

body2013
JUDGMENT 1. - Instant writ petition has been filed by the petitioner to quash order of the Board of Revenue dated 15.2.1999 (Annex.-3) whereby the Board of Revenue accepted the reference made by the Collector-cum-Deputy Commissioner (Colonization), Bikaner under Section 232 of the Rajasthan Tenancy Act, 1955 and quash the judgment and decree dated 5.9.1989 passed in Civil Suit No. 82/1986. 2. As per facts of the case, the petitioner filed a suit in the Court of Assistant Commissioner (Colonization), Kolayat under Section 88 of the Act of 1955 and under Sections 125 and 136 of the Rajasthan Land Revenue Act, 1956 with the plea that he is in cultivatory possession of the land situated in Chak 1 MKD Muraba No. 217/60, area 4 bigha and Chak 2 RM Muraba No. 217/61, area 2 bigha, in total 6 bigha. The said land is his ancestral land where he is residing in his dhani and there is also a water tank for the purpose of storage of water. According to the petitioner, the area in which the land is situated was earlier belonging to the Jaisalmer State where no revenue record was maintained and, for the first time, in samwat 2012 (corresponding to the year 1955) the revenue records were prepared by settlement. As per the petitioners, the authorities by asking few villagers made entries in the revenue record with regard to possession, therefore, the name of the petitioner's father was not recorded in the summary settlement in samwat 2012; but, they remained in possession of the said land which is situated in the desert area of the western Rajasthan. 3. In the suit, the Tehsildar filed written-statement and, thereafter, 3 issues were framed by the Trial Court and, at last, on the basis of oral evidence the suit was decreed and a declaration was made that the petitioners may be recorded as gair khatedar of the land in question vide judgment dated 5.9.1989. The Assistant Collector-cum-Deputy Commissioner (Colonization) made reference No. 8/1996 vide order dated 13.5.1998 to the Board of Revenue under Section 232 of the Rajasthan Tenancy Act, 1955 for setting aside the said judgment and decree and Board of Revenue, Ajmer vide judgment dated 15.2.1999 quashed and set aside the judgment and decree dated 5.9.1989 passed by the Assistant Commissioner (Colonization), Kolayat. In this writ petition, the petitioner is challenging the validity of the said judgment rendered by the Board of Revenue. 4. Learned Counsel for the petitioner submits that the finding given by the Board of Revenue with regard to the fact that there is no revenue record known as khasra girdawari, jamabandi, lagan receipts or settlement memo is not relevant for the purpose of deciding the suit because the Assistant Commissioner (Colonization), Kolayat decided the suit filed under Section 88 on the basis of oral evidence and oral evidence cannot be ignored as per the Evidence Act. Therefore, the finding given by the Board of Revenue with regard to non-existence of documentary evidence is totally illegal. 5. Learned Counsel for the petitioner vehemently argued that upon the land in question there was possession of the ancestors of the petitioners since long at the time when the land in question was in the jurisdiction of the erstwhile Jaisalmer jagir where no record was prepared. Therefore, the Assistant Commissioner (Colonization), Kolayat rightly relied upon the oral evidence of Hazari, Gaju Ram and Ladu Ram, therefore, the judgment impugned may be quashed. 6. Learned Counsel for the petitioners invited my attention towards judgment of the Division Bench of this Court in the case of Sau Khan v. State of Rajasthan, reported in 1990 (2) RLW 543 and judgment rendered by the learned Single Judge of this Court in the case of Jeevan Ram v. State, reported in 2001 (2) WLC (Raj.) 542 and submits that decree can be passed on the basis of oral evidence by the Revenue Court, so also, as per amendment made in the Rajasthan Tenancy Act the Board of Revenue was under obligation to consider the case of the petitioner but erroneously held that no gair khatedari right can be given to the petitioner. 7. Per contra, learned Counsel appearing for the respondents, Mr. Sandeep Bhandawat vehemently submits that a gross error was committed by the Assistant Commissioner (Colonization) while rendering the judgment and decree in favour of the petitioner dated 5.9.1989 on the basis of oral evidence. Admittedly, the petitioner is not claiming his right on the basis of any documentary evidence over the land in question; more so, he is claiming his right on the ground that the land in question is in possession since his ancestors. Admittedly, the petitioner is not claiming his right on the basis of any documentary evidence over the land in question; more so, he is claiming his right on the ground that the land in question is in possession since his ancestors. Therefore, there is no illegality or error in the impugned judgment and this writ petition may be dismissed. 8. After hearing learned Counsel for the parties, in my opinion, for establishing the fact of possession from ancestors it is the duty of the litigant to lead documentary evidence and, on that basis, the rights can be determined by the Courts. But, in this case, it is obvious from the facts that on the one hand the petitioner is claiming his right on the ground that the land in question is in possession since his ancestors' time and, on the other hand, only oral evidence of three witnesses is produced before the Court and after recording their statement the suit was decreed by the Assistant Commissioner (Colonization), Kolayat which is not sustainable in law. 9. In my opinion, there is no ground in existence to accept the contention of the petitioner that there was sufficient evidence before the Assistant Commissioner (Colonization), Kolayat to arrive at the finding that the petitioner or his ancestors were in possession of the land since long. 10. It is true that in absence of documentary evidence oral evidence may be accepted as per the Evidence Act but, at the same time, if claim is on the basis of possession since long from ancestors' time, then, obviously cogent evidence is required to be placed on record for the purpose of determination of the rights. Therefore, the facts of the judgments cited by learned Counsel for the petitioner are altogether different than the facts of the present case and as such the said judgment is not applicable in the present set of facts. 11. Similarly, the plea with regard to amendment of Section 15-AAA(a) in which amendment was made in the year 1992 was not taken by the petitioner before the Board of Revenue, so also, the judgment dated 5.9.1989 was passed upon only oral evidence, therefore, the judgment cited by learned Counsel for the petitioner in Jeevan Ram's case (supra) is also not applicable in the present set of facts. 12. 12. In view of the fact that there is no documentary evidence to prove the possession the Board of Revenue has rightly exercised its jurisdiction under Section 232 of the Rajasthan Tenancy Act, 1955 to set aside the judgment and decree passed by the Assistant Colonization Commissioner, Kolayat. Therefore, there is no force in this writ petition. Hence, this writ petition is hereby dismissed. Petition dismissed. *******