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2014 DIGILAW 1661 (RAJ)

Jaiphal Khan v. State of Rajasthan

2014-10-10

SANGEET LODHA

body2014
JUDGMENT 1. - This writ petition is directed against order dated 18.10.13 passed by the Board of Revenue Rajasthan, allowing an appeal preferred by the petitioners under Section 224 of Rajasthan Tenancy Act, 1955 (for short "the Act") against the judgment and order dated 27.4.04 passed by the Revenue Appellate Authority (RAA), Barmer, setting aside the judgment and decree dated 14.8.02 passed by the Assistant Collector, Jaisalmer in Revenue Suit No.94/99. 2. The relevant facts are that the petitioners filed a suit under Section 88 of the Act seeking declaration that the land measuring 24 bighas comprising khasra no.60/44 situated at village-Keshuon Ki Basti, Tehsil & District Jaisalmer as their khatedari land. The khatedari rights were claimed by the petitioners on the basis of long and continuous cultivatory possession. The suit was contested by the State by filing a written statement thereto, taking the stand that the petitioners were never in continuous cultivatory possession and they are habitual trespasser. On the basis of the pleadings of the parties, the trial court framed the issues and parties led their evidence. In support of the claim, the petitioners placed on record copies of 'khasra parivartansheel', 'girdawari' and 'jamabandi'. 3. After due consideration of the evidence on record, the Assistant Collector arrived at the finding that there is nothing on record to show that the petitioners were in cultivatory possession of the land on the date of commencement of the Act. The court arrived at the finding that the cultivatory possession of the petitioners over the land in question since Samvat 2012 is not established on the basis of any cogent evidence on record and therefore, they cannot claim khatedari right over the land in question. However, on the basis of material on record, the court opined that the petitioners remained in possession of the land question in different years as trespasser. Accordingly, the suit preferred by the petitioners was dismissed by the Assistant Collector, Jaisalmer vide judgment and decree dated 14.7.02. 4. Aggrieved thereby, the petitioners preferred an appeal before the RAA, Barmer. However, on the basis of material on record, the court opined that the petitioners remained in possession of the land question in different years as trespasser. Accordingly, the suit preferred by the petitioners was dismissed by the Assistant Collector, Jaisalmer vide judgment and decree dated 14.7.02. 4. Aggrieved thereby, the petitioners preferred an appeal before the RAA, Barmer. The RAA arrived at the finding that in the district Jaisalmer during the State time, the revenue record was not maintained and therefore, the record prior to settlement is not available but, on the basis of the documents produced, it is established that the petitioners herein were in possession of the land for quite sometime and therefore, there is no reason not to rely upon the oral evidence led on their behalf. Accordingly, the appeal preferred by the petitioners was allowed and while setting aside the judgment and decree passed by the Assistant Collector, the suit preferred by the petitioners was decreed as prayed for. 5. Aggrieved by the judgment and decree passed by RAA, the State Government preferred an appeal before the Board of Revenue Rajasthan. After examination of the evidence on record in detail, the Board of Revenue opined that the petitioners were never in continuous possession of the land in question and their possession over the land since Samvat 2012 is not proved by any cogent evidence on record and therefore, they are not entitled for conferment of khatedari rights over the land in question in terms of provisions of Section 15 of the Act. Accordingly, while allowing the appeal, the judgment and decree passed by the RAA has been reversed by the Board of Revenue and judgment and decree passed by the Assistant Collector dismissing the suit preferred by the petitioners, has been restored. Hence, this petition. 6. Learned counsel for the petitioners submitted that the Board of Revenue has failed to appreciate the evidence on record in correct perspective. Learned counsel submitted that the land in question was in possession of the petitioners' father much prior to coming into force of the Act. Learned counsel submitted that prior to 1955, no revenue record was maintained in the Jaisalmer district and therefore, the documentary evidence regarding possession over the land in question prior to 1955 was not available with the petitioners. Learned counsel submitted that prior to 1955, no revenue record was maintained in the Jaisalmer district and therefore, the documentary evidence regarding possession over the land in question prior to 1955 was not available with the petitioners. Learned counsel submitted that on the basis of the documents Ex.2 to Ex.22 and the oral evidence of the witnesses produced on behalf of the petitioners, it is established beyond doubt that at the time of settlement, the land was entered in the name of the petitioners' father. Learned counsel submitted that in absence of documentary evidence, the revenue suit can be decreed even on the basis of oral evidence. Learned counsel submitted that the continuous possession of the petitioners over the land in question being proved on the basis of the documentary and oral evidence, the Board of Revenue has seriously erred in holding that the petitioners were not in possession of the land since Samvat 2012 and therefore, they are not entitled for khatedari rights. 7. I have considered the submissions of the learned counsel for the petitioners and perused the material on record as also the record of the trial court, requisitioned by this court. 8. A perusal of the plaint filed by the petitioners reveals that they have not disclosed as to since when they are in cultivatory possession of the land in question. As a matter of fact, all that has been stated by the petitioners is that they are in continuous cultivatory possession of the land in question since the time of their ancestors. A perusal of the documentary evidence on record reveals that the cultivatory possession of the petitioner-Jaiphal over the different portion of the land varying from 4 bighas to 17 bighas is recorded in khasra parivartansheel of Samvat 2043 and subsequent thereto but not prior to it. In the khasra parivartansheel of Samvat 2018, the petitioners' father is shown to be in cultivatory possession and subsequent thereto in Samvat 2022, he is shown to be trespasser over the land in question. Thereafter, during the Samvat 2037 also, the possession of the petitioners' father over 10 bighas land comprising khasra no.60 is shown as a trespasser. Suffice it to say that there is no evidence on record showing that the petitioners are in continuous possession of the land prior to coming into force of the Act of 1955. Thereafter, during the Samvat 2037 also, the possession of the petitioners' father over 10 bighas land comprising khasra no.60 is shown as a trespasser. Suffice it to say that there is no evidence on record showing that the petitioners are in continuous possession of the land prior to coming into force of the Act of 1955. It is true that the facts can be proved also on the basis of the oral evidence, but then, so as to claim the khatedari rights over the land in question in terms of provisions of Section 15 of the Act of 1955, mere possession over the land is not sufficient. It is not even the case of the petitioners that they were in possession of the land at the time of commencement of the Act of 1955 as tenant or has been admitted as tenant after the commencement of the Act otherwise than as a sub tenant or tenant of khudkast and therefore, no khatedari right accrues in favour of the petitioners on the basis of their alleged possession over the land as trespasser. In the considered opinion of this court, the findings arrived at by the Board of Revenue after due appreciation of evidence on record, which remain findings of facts, cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 9. In the result, the petition fails, it is hereby dismissed.Petition dismissed. *******