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2013 DIGILAW 494 (RAJ)

Jeevan v. State

2013-02-28

MOHAMMAD RAFIQ

body2013
Hon'ble RAFIQ, J.—This writ petition has been filed by the petitioner Jeevan and others challenging the judgement of the Assistant Collector cum Executive Magistrate-I, Jaipur District Jaipur dated 27.8.1992 dismissing their suit for declaration and permanent injunction and that of the Board of Revenue, Ajmer dated 13.2.1997 dismissing the appeal along with appeal filed by the respondent and order dated 7.7.1997 dismissing the review petition filed by the petitioners. 2. Factual matrix of the case is that petitioners filed a suit for declaration and permanent injunction on 8.1.1992 in the Court of Assistant Collector and Executive Magistrate-I, Jaipur District Jaipur against defendant-non-petitioner no.1 and 4 to 35 that land comprised in khasra no.93 measuring 41 bigha 14 biswa according to the settlement of the year 1987 of which the present khasra numbers according to settlement of Samvat year 2015 were 280, 281, 287, 288, 363, 281/364 and 281/365 in all 16 Hectares and 32 Aires situated in Village Balmukandpura @ Nada, Tehsil Sanganer were being cultivated by the plaintiff-petitioners as tenants from the times of their ancestors. It was contended that petitioner nos.1 to 8 had half share in the above lands and petitioner nos.9 to 20 had the remaining half share. The employees of the Settlement Department wrongly entered the aforesaid lands of the petitioners as charagah land in the settlement of the Samvat year 2015. Petitioners came to learn about the same when the Patwari of the area concerned informed them that they should voluntarily relinquish possession of the land or else they would be dispossessed therefrom. 3. Plaintiff-petitioners also stated in the plaint that on 23.10.1991, the plaintiffs served a notice of two months on Gram Panchayat Thikaria, which sent its reply on 14.11.1991. In the reply, the Gram Panchayat Thikaria contended that in the revenue records the disputed lands were entered as Charagah land and the same were situated in the midst of the khatedari lands of the plaintiff-petitioners and their cattle used to graze in the same. The Gram Panchayat, Thikaria further stated that since the disputed lands were entered as charagah lands in the revenue records, only the competent court could give khatedari rights regarding the disputed lands and not the Gram Panchayat. Prayer for declaration and injunction was made in the suit. The defendants no.4 to 35 contested the suit by filing written statement. The Gram Panchayat, Thikaria further stated that since the disputed lands were entered as charagah lands in the revenue records, only the competent court could give khatedari rights regarding the disputed lands and not the Gram Panchayat. Prayer for declaration and injunction was made in the suit. The defendants no.4 to 35 contested the suit by filing written statement. They submitted in the written statement that the disputed lands were entered as charagah lands in the revenue records, but the same were situated in the midst of the lands of the khatedari of the plaintiff-petitioners and as such only the cattle of the plaintiffs were being grazed in the disputed lands and plaintiff-petitioners were only using the same. 4. The State of Rajasthan despite number of opportunities did not file written statement in the plaint and therefore its right of filing the written statement was closed on 19.8.1992. Plaintiff examined 5 witnesses and filed certified copy of khasra girdavari of the disputed lands for Samvat year 2009 to 2011, 2013 to 2016 and 2010 to 2012 and certified copy of the jamabandi of the disputed lands for Samvat year 2007 and 2008, 2008 to 2041, certified copy of Naksha Trace for the English Calender year 1955-56, certified copy of Parcha Khatoni, copy of notice and the original reply of the notice sent by Gram Panchayat Thikaria. The learned Assistant Collector, however, dismissed the suit by drawing a wrong inference against the plaintiff-petitioners as they had not taken any proceedings in the matter for last 33 years to get the aforesaid settlement entries corrected. Aggrieved thereby the petitioners filed an appeal before the Revenue Appellate Authority. During the pendency of appeal, petitioners have filed an application under Order 41 Rule 27 of CPC on 4.1.1994 producing therewith the aforesaid documents. The Revenue Appellate Authority allowed the appeal holding that any land could be entered as charagah land only as per provisions of Rajasthan Tenancy (Government) Rules, 1955. No compliance of the aforesaid Rules has been made before recording aforesaid charagah land in Samvat year 2015. The Revenue Appellate Authority thus reversed the findings of Assistant Collector and Executive Magistrate-I and decreed the suit in favour of plaintiff-petitioners by order dated 10.1.1994. No compliance of the aforesaid Rules has been made before recording aforesaid charagah land in Samvat year 2015. The Revenue Appellate Authority thus reversed the findings of Assistant Collector and Executive Magistrate-I and decreed the suit in favour of plaintiff-petitioners by order dated 10.1.1994. Aggrieved thereby, the State of Rajasthan filed second appeal before the Board of Revenue who vide judgement dated 13.2.1997 accepted the same and reversed the judgement of Revenue Appellate Authority dated 10.1.1994 and confirmed that of Assistant Collector dated 27.8.1992. Aggrieved thereby, the petitioners filed review petition before the Board of Revenue, which was also dismissed by order dated 7.7.1997. 5. Shri K.K. Mehrishi, learned Senior Advocate for the petitioners argued that entries of khasra girdawari of the disputed lands for Samvat year 2009-2010 marked as Ex.P-1, for Samvat year 2007-2008 marked as Ex.P-3 and for Samvat year 2013-2016 marked as Ex.P-2 indicate name of petitioners, which have been misinterpreted and misconstrued by the learned Board of Revenue observing that the disputed lands therein have been entered as Sivai Chak. Petitioners have succeeded in proving that the disputed lands were not entered as charagah lands prior to Samvat year 2015. The jamabandi for Samvat year 2006-2007 conclusively proved that the disputed lands were of the khatedari of the petitioners' ancestors and the presumption of truth attached to those entries in law could not be dislodged by wrong entries of khasra girdavaris in subsequent years. The State Government did not produce any evidence to rebut the said documentary proof. It was therefore not open to the Revenue Board to disbelieve the oral and documentary evidence produced by the petitioners. The Board of Revenue was not right in holding that the petitioners were not entitled to get the declaration of khatedari rights solely on the basis of possession. In doing so, the learned Assistant Collector and the Board of Revenue have approached the matter from the wrong perspective. It was their positive case in the plaint that the lands were recorded in the khatedari of their ancestors and they continued to be in possession of the lands as khatedar-tenants. What they contended was that the settlement in Samvat year 2015 wrongly entered the character of such land as charagah land in revenue records. The Board of Revenue was wholly unjustified in deciding the matter against the petitioners because the suit was filed 33 years after the aforesaid entry. What they contended was that the settlement in Samvat year 2015 wrongly entered the character of such land as charagah land in revenue records. The Board of Revenue was wholly unjustified in deciding the matter against the petitioners because the suit was filed 33 years after the aforesaid entry. This delay would not be of any consequence because the petitioners throughout continued in possession of the disputed land. They came to know about the wrongful entries from the concerned Patwari, much belatedly only when he threatened them of dispossession. It is therefore that the petitioners immediately filed a suit for declaration and injunction. The learned Board of Revenue has also erred in law in holding that the learned Revenue Appellate Authority has not allowed the application of the petitioners filed under Order 41 Rule 27 of CPC, whereas the fact is that the Revenue Appellate Authority has discussed and relied on each of those documents and, therefore, the application would be deemed allowed. The Board of Revenue has failed to wrongfully exercise its jurisdiction vested in it in holding that the said documents could not be used by the petitioners. It was argued that the disputed lands were not used for grazing of cattles of the villagers, nor the same was recorded in the settlement as such at the date of commencement of the Rajasthan Tenancy Act. The disputed land was not recorded as pasture land during settlement operations in accordance with Rules 4 to 6 of the Rajasthan Tenancy (Government) Rules, 1955 and therefore the entry to that effect made by the Settlement Department in Samvat year 2015 was wholly illegal. It was argued that Gram Panchayat Thikaria was a party-defendant in the suit filed by the plaintiff-petitioners in the Court of Assistant Collector and also in the first appeal filed before the Revenue Appellate Authority, but the State Government while filing the appeal before the Board of Revenue has not impleaded Gram Panchayat Thikaria as party. The Government of Rajasthan has by issuing notification under Section 52 of the Rajasthan Panchayati Raj Act, 1994 vested all the pasture land falling in the panchayat area in Gram Panchayat, which was therefore necessary party. The appeal of the State was therefore liable to be dismissed. Petitioner filed review petition before the Board of Revenue on this ground, but the Board mechanically dismissed the review petition. The appeal of the State was therefore liable to be dismissed. Petitioner filed review petition before the Board of Revenue on this ground, but the Board mechanically dismissed the review petition. The Board has erred in entertaining the appeal of the Government with substantial delay without any justification. Learned Senior Advocate submits that the word “charagah” used in para 12 of the reply filed by Gram Panchayat, Thikaria shows that it is admitted fact that the land in dispute was encircled by the land of the petitioners and that it has been used by the petitioners and none else. Learned Senior Advocate in support of his arguments relied on the judgements of Supreme Court in State of Rajasthan vs. T.N. Sahani & Ors.- (2001) 10 SCC 619 , Idan vs. State of Rajasthan & Anr.-2001(3) WLN 363, State of Rajasthan vs. Madan Gopal & Ors.-AIR 1999 Rajasthan 248, P.K. Ramchandran vs. State of Kerala & Anr.- AIR 1998 SC 2276 , State of Rajasthan & Ors. vs. Bheru Lal-RRD 1995 page 64 and State of Rajasthan vs. Mangi Lal-RRD 1993 page 413. 6. Per contra, Shri Zakawat Ali, learned Deputy Government Counsel for the respondents opposed the writ petition and argued that the learned Assistant Collector and Board of Revenue were fully justified in rejecting the suit of the petitioners because the suit was filed with delay of 33 years. While the alleged settlement which according to the petitioners for the first time recorded disputed land as charagah took place in Samvat year 1987, corresponding to the year 1931, the suit was filed in the year 1992. The learned Assistant Collector was fully justified in rejecting the suit. The petitioners could not claim khatedari rights now on the basis of their possession reflected from khasra girdavari till Samvat year 2031 as names of even those, who are trespassers, are shown in khasra girdawaris. Khasra girdavaris merely indicates as to who had cultivated the land, but is not a record of right and does not prove the title. If the settlement had made any wrong entry, the petitioners should have immediately applied for correction of the entries. If a land has remained recorded as charagah for such a length of time, khatedari right thereabout cannot be conferred on any of the parties, because Section 16 of the Rajasthan Tenancy Act bars conferment of the khatedari rights in charagah land. If a land has remained recorded as charagah for such a length of time, khatedari right thereabout cannot be conferred on any of the parties, because Section 16 of the Rajasthan Tenancy Act bars conferment of the khatedari rights in charagah land. The writ petition is therefore liable to be dismissed. 7. Perusal of the impugned order passed by the Assistant Collector dated 27.8.1992, which dismissed the suit of the petitioners for declaration and permanent injunction clearly indicates that even though he held that there was no limitation for filing the suit for declaration, but dismissed the suit because according to him petitioners failed to give explanation why they filed suit with delay of 33 years. The Assistant Collector has made Issue no.1 to the effect whether the land in dispute is in cultivatory possession of the petitioners and Issue no.2 is to the effect whether recording such land as charagh land was incorrect. But in the same order, the learned Assistant Collector has also recorded finding that petitioners have been able to prove that they/their predecessors in title were in possession of the land from Samvat year 1987 corresponding to the year 1931. When the matter reached the Revenue Appellate Authority, the Revenue Appellate Authority however in his order dated 10.1.1994 reversed the judgement of Assistant Collector because the petitioners were able to persuade him by producing copy of the jamabandi of Samvat 2006-07 that names of their predecessor in title namely Jodha and Ganesh sons of Bijan, Narain, Ramnath, Mahadev and Kalu sons of Dhana, Mohru and Goru sons of Ghasi and Gopi Khati were recorded as khatedars therein. Khasra girdavaris of Samvat 2008 and onwards were produced to show continuity of their cultivatory possession. The Revenue Appellate Authority also noted that the Tehsildar did not contest this position by filing reply to the suit of the petitioners. The Revenue Appellate Authority therefore held that as per Rule 4 and 6 of Rajasthan Tenancy (Government) Rules, 1955 only such land could be recorded as charagh, which has actually been occupied and used for grazing of cattles by the villagers. The Gram Panchayat in reply to the suit admitted the fact that the land in dispute was in possession and use of the petitioners and encircled by several other parcels of their land, which are in their khatedari. The Gram Panchayat in reply to the suit admitted the fact that the land in dispute was in possession and use of the petitioners and encircled by several other parcels of their land, which are in their khatedari. The Revenue Appellate Authority has held that in the year Samvat 2015, the land was recorded as charagah and though the petitioners did not for 30-32 years thereafter take any step to get the aforesaid entry corrected, but at the same time, Gram Panchayat also did not take any steps to recover possession of such land from the petitioners. The Revenue Appellate Authority thus held that even otherwise in view of Section 15 of the Rajasthan Tenancy Act, whoever is in actual cultivatory possession on the date of commencement of that Act, would be entitled to conferment of khatedari rights. The Board of Revenue however reversed the judgement of the Revenue Appellate Authority on wholly irrelevant and illegal consideration. The Board has taken a rather technical view of the matter by observing that even though plaintiff-petitioners have filed an application under Order 41 Rule 27 of CPC for producing certain documents, but no order was passed thereon. Although the complete order sheet is not before this Court, but tenor of the order passed by the Revenue Appellate Authority fairly show that all those documents were considered and relied upon by the said authority in support of its conclusion. Those documents especially when they were certified copies of the jamabandi of Samvat year 2010 onwards and khasra girdavari of Samvat years 2006 to 2016 could not be ignored. The Board has also misread the documents, which were on record especially the jamabandi of Samvat 2006-2007 and khasra girdawaris of Samvat 2007-08, 2009-11 and 2013-16 by observing that the names mentioned therein are not predecessor-in-title of the petitioners, whereas cause title of suit as also the present writ petition, clearly show that the petitioners are sons or grand sons of those whose names were recorded therein. While petitioner no.1 Jeevan is son of Ganesh, petitioner no.2 Bhura is son of Kalu, petitioner no.3 Ramkaran is son of Ramnath, petitioner no.3 Birda is son of Mahadeo, petitioner no.5 Sukha is son of Goru, petitioner no.7 Laxman is son of Gopi, petitioner no.12 Dheeraj is son of Ganesh and others are grand sons of those whose names were mentioned in the earlier jamabandis relied on by the learned Revenue Appellate Authority. If the predecessor-in-title of the petitioners were already shown as khatedar in jamabandi of 2006-07 i.e. much before the time when the Rajasthan Tenancy Act commenced w.e.f. 15.10.1955, there would indeed be no need of conferment of khatedari upon them along with petitioners with reference to Section 15 of the Act. But even otherwise, if the petitioners were able to demonstrate before the Revenue Appellate Authority that they were having cultivatory possession of the disputed land as on the date on which Rajasthan Tenancy Act was enforced i.e. 15.10.1955, the findings to that effect recorded by the Revenue Appellate Authority cannot be faulted. The delay in filing the suit in the present matter would be wholly inconsequential because admittedly for all this time of alleged delay, the petitioners continued to be in possession of the disputed land and are still in possession of the disputed land and as rightly held by the Revenue Appellate Authority such delay would be inconsequential in a declaratory suit. If there was inaction on the part of petitioners in not getting the entries, wrongfully made by the settlement in the year 2015, corrected, the Gram Panchayat and for that matter the Government were equally responsible for their conduct by not taking any steps to recover possession of the land from the petitioners. It is therefore that the stand of the Gram Panchayat before the Assistant Collector where they admitted possession of the petitioners and the fact that the disputed land has always been used by them and that such land is encircled by other parcels of the land in their khatedari, assumes significance. 8. There is no explanation whatsoever as to how and in what manner the settlement would have entered the disputed land as charagah whereas earlier in settlement the lands were shown in the khatedari of the predecessor-in-title of the petitioners. 8. There is no explanation whatsoever as to how and in what manner the settlement would have entered the disputed land as charagah whereas earlier in settlement the lands were shown in the khatedari of the predecessor-in-title of the petitioners. The delay in a case of declaratory suit would not have any adverse effect in so far as the rights of the petitioners are concerned because no limitation even as per finding recorded by the learned Assistant Collector has been prescribed for filing of the declaratory suit. When the petitioners throughout continued in possession of the disputed land, delay in filing of the suit by them would not be fatal. 9. In view of above, the judgement passed by the Board of Revenue suffers from legal infirmities having been perverse taking erroneous view of the matter. The first judgement of the Board of Revenue dated 13.2.1997 and the judgement of Assistant Collector dated 27.8.1992 are set aside and that of the Revenue Appellate Authority dated 10.1.1994 is restored and the suit for declaration and injunction passed by the petitioners has been decreed. The respondents shall make compliance of the judgement passed by the Revenue Appellate Authority in accordance with law. The writ petition is accordingly allowed.