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2014 DIGILAW 1938 (RAJ)

U. I. T. Alwar v. Board of Revenue

2014-12-01

AJAY RASTOGI, VEERENDR SINGH SIRADHANA

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JUDGMENT 1. Since both the instant intra-court appeals have been preferred against the self same judgment of the learned Single Judge impugned herein dated 30.08.2011, hence heard together & being disposed of by the present common order. 2. The brief facts are that a suit came to be filed by Tahsildar on behalf of State of Rajasthan in respect of suit land in the court of Sub-Divisional Officer, Alwar on 30.11.1968. It reveals from the material on record that the suit land was purchased by one Banarsi Das on 06.01.1949 from the erstwhile Biswedar and the predecessor-in-title of respondent Ram Narayan purchased the suit land by registered sale deed on 19.02.1955 from Banarsidas and thereafter mutations no.125 & 195 were opened in favour of the predecessor-in-title of the respondent Ram Narayan on 05.09.1956. 3. However, the State Government was of the view that as a result of coming into force of the Rajasthan Zamindari & Biswedari Abolition Act,1959 (Act,1959), the suit land in question being Banjar & having vested with the State, the State Government became owner of the suit land and Ram Narayan was a trespasser and accordingly proceedings were initiated u/S 91 of the Rajasthan Land Revenue Act,1956 against Ram Narayan in respect of suit land in question but those proceedings were dropped by the Tahsildar vide order dated 28.12.1965, at the same time application was submitted by the deceased Ram Narayan, the predecessor-in-title for recording of their names in the settlement operation and that came to be allowed under the order of Settlement Officer dated 15.01.1965 and the name of Ram Narayan was entered in the revenue records and that appears to be a reason for which the Tahsildar dropped the proceedings initiated u/S 91 of the Land Revenue Act,1956 for eviction of the trespasser vide order dated 28.12.1965. However, the State Government decided to file a suit against the predecessor-in-title of the respondent Ram Narayan and the suit was filed by the State for correction of entries in the revenue records as a consequence of settlement operation. However, the State Government decided to file a suit against the predecessor-in-title of the respondent Ram Narayan and the suit was filed by the State for correction of entries in the revenue records as a consequence of settlement operation. The defendant Ram Narayan filed written statement giving complete details of the subject land & controverting the averments made in the plaint & raising further objections that it was not open for the State to file a suit seeking correction of entries & apart from other objections it was stated in the additional pleas that the suit is not maintainable as the suit land is in possession of the defendants on which constructions have been raised and without making prayer for returning of the possession the suit is not maintainable. 4. The learned first original revenue court after taking into consideration the material on record & the evidence recorded dismissed the suit vide its judgment dated 28.03.1972 and recorded a finding that at the time when Ram Narayan purchased the suit property from Banarsi Das in the year 1955, there was existence of Kachcha house & compound wall surrounding the suit land in dispute in which the labourers were residing having constructed Kachcha huts and further arrived to the conclusion that the land was not covered under the provisions of the Act,1959 and was within the scope of private properties as envisaged under the Act and also recorded that in case the plaintiff felt that the land continued to vest with the State as a consequence of applicability of the Act, the course open for the plaintiff was to proceed in terms of Section 9 of the Act,1959 and the State Government failed to question the decision of the settlement officer dated 15.01.1965, as a consequence thereof it had been directed that the land should be recorded in the name of defendant respondent Ram Narayan and since no appeal was filed against the aforesaid decision of the Settlement Officer dated 15.01.1965, arrived to the conclusion that the settlement had not vested with the State and held that the suit in the present form filed at the instance of the State Government is not maintainable in absence of seeking consequential relief regarding possession of the suit land in question. 5. 5. Against dismissal of the suit the appeal came to preferred and the learned Revenue Appellate Authority vide its judgment dated 06.06.1977 while setting aside order of the revenue court cancelled the settlement parcha & further directed that the suit land in question should be recorded as Siwaichak. 6. The defendant being dissatisfied with the judgment of the Revenue Appellate Authority preferred appeal before the learned Board of Revenue and it reveals from the record that pursuant to decision of the Revenue Appellate Authority the State Government vide its order dated 15.06.1981 transferred the suit land to the Urban improvement Trust, Alwar (UIT) and the entries in the revenue records came to be recorded in favour of UIT and indisputably the UIT was not a party to the proceedings before the learned Board of Revenue. 7. The matter proceeded before the learned Board of Revenue and the appeals filed by the defendants came to be allowed vide judgment dated 30.12.1983 after being contested by the State Government. The learned Board of Revenue was of the view that on reading of the plaint it was evident that the plaintiff had not sought the consequential relief and therefore the suit was barred on the principles of Section 34 of the Specific Relief Act as no suit for mere declaration was maintainable and in the opinion of the Board of Revenue the possession being with the defendants and the plaintiff not having sought the consequential relief of possession was not entitled to a mere declaratory decree for declaration of the correction of entries and also came to the conclusion that as a consequence of the sale in favour of Banarsi Das by the erstwhile Zamindar on 06.01.1949 and subsequent sale by Banarsi Das in favour of Ram Narayan on 19.02.1955 before coming into force of the Act,1959 the suit land was not covered under the provisions of the said Act and there appears no reason for vesting of the suit land in favour of the State as a consequence of promulgation of the aforesaid Act,1959 coming into force on 15.11.1959. 8. Being aggrieved by the judgment of the Board of Revenue the UIT in whose favour the State Government vide its order dated 15.06.1981 transferred the suit land keeping in view judgment of the Revenue Appellate Authority dated 06.06.1977 preferred a writ petition before the Ld. 8. Being aggrieved by the judgment of the Board of Revenue the UIT in whose favour the State Government vide its order dated 15.06.1981 transferred the suit land keeping in view judgment of the Revenue Appellate Authority dated 06.06.1977 preferred a writ petition before the Ld. Single Judge of this Court though the State Government did not challenge the said decision. 9. The main thrust of submissions of counsel for petitioner-UIT before the learned Single Judge was that after 1981 the land was mutated in favour of UIT consequent upon transfer by the State of Rajasthan, as such the UIT ought to have been impleded as party to the appeals preferred before the learned Board of Revenue and such order passed in absence of necessary party being impleaded was not maintainable in law. The further contention of the counsel was that as a result of coming into force of the Act, 1959 the land stood vested in the State by operation of law as the suit land was incapable of being cultivated and the land was not in khudkhast of the Zamindar on the date of coming into force of the Act and counsel raised further objection that complete reading of the averments made in the plaint goes to show that in fact the land was in possession of the State as a consequence of operation of law which was specifically stated in para-4 of the plaint which was relied upon by the Revenue Appellate Authority as a consequence of the vesting and as such there was an apparent manifest error committed by the learned Board of Revenue in dismissing appeals on the basis of principles of Section 34 of the Specific Relief Act,1963 and further contended that the suit for mere correction of entries was maintainable without seeking consequential relief u/S 88 of the Rajasthan Tenancy Act,1955. 10. 10. Counsel for respondent on the other hand while supporting order of the learned Board of Revenue made endeavours to convince the learned Single Judge regarding the provisions & the scheme of Rajasthan Zamindari & Biswedari Abolition Act,1959 which came into force w.e.f. 15.11.1959 and further submitted that the transfer made by erstwhile Zamindar in favour of Banarsi Das by sale deed dated 06.01.1949 was saved on account of the provisions of Section 6 & 7 of the Act and the sale made by the Zamindar prior to 01.01.1953 was saved & the estate of Zamindar to the extent of the land of the appellant which was sold on 06.01.1949 could not have vested with the State on promulgation & coming into force of the Act,1959 on 15.11.1959 and further contended that by virtue of Section 34 of the Specific Relief Act relying upon judgment in Mehar Chand Das v. Lal Babu Siddique & Ors., AIR 2007 SC 1499 contended that a mere suit for declaration without claiming relief of possession was not tenable and while supporting judgment of the learned Board of Revenue opposed that the writ petition deserves to be dismissed. 11. 11. The learned Single Judge after taking note of the submissions made & the material which came on record arrived to the conclusion that the sale deed for valuable consideration executed by Zamindar on 06.01.1949 in favour of Banarsi Das of the land in dispute indisputably remained exempted from purview of the Act,1959 by virtue of non-obstantive claim in Section 6 and further fortified in Section 7 which clearly envisages that the sales or transfers made on or after 01.01.1953 were not recognised whereas the sale by the Biswedar in favour of Banarsi Das of the site/land in question was of 06.01.1949 and as held by the Tahsildar in its order dated 28.12.1965 finding of fact has been recorded that there was construction standing on the suit land with boundary walls and thus it was a house-site as referred to in Section 6 and the sale by Banarsi Das in favour of the respondent Ram Narayan was made on 19.02.1955 since the title of Banarsi Das predecessor-in-title of the respondent had become perfect on 06.01.1949 in the suit land by virtue of sale deed dated 06.01.1949 and suit land stood outside the purview of Act,1959 as a consequence of the sale executed by the Zamindar in favour of the predecessor-in-title namely Banarsi Das and that is the reason for which the entries made in settlement operation by virtue of the order Annex.R/2 passed in 1965 resulting in dropping of the proceedings u/S 91 of the Land Revenue Act against the respondents cannot be found fault with. 12. 12. As regards the further objection raised in reference to Section 34 of the Specific Relief Act,1963 the finding of fact came on record & noticed by the learned Single Judge as well that the suit land in dispute was in possession of the respondent who had already raised construction on the land in question and even at the time of sale in the year 1949 constructions on the land were in existence and suit land was in possession of the defendants and the proceedings for removal of trespass u/S 91 of the Rajasthan Land Revenue Act,1956 though started against the defendants had been dropped vide order dated 28.12.1985, in absence of plaintiff seeking relief of decree for possession of the land the principle of Section 34 would certainly be applicable to the facts & circumstances in light of the view expressed by the Hon'ble Supreme Court in Mehar Chand Das v. Lal Babu Siddique & Ors., AIR 2007 SC 1499 & further considered by the Apex Court in the judgment in Bachhaj Nahar v. Nilima Mandal & Anr., (2008) 17 SCC 491 . 13. 13. As regards the further contention of the petitioner that they were not impleaded as party respondents in the appeal preferred before the Board of Revenue it was observed by the learned Single Judge that the appeal was preferred before the learned Board of Revenue against the judgment of Revenue Appellate Authority dated 06.06.1977 by the predecessor-in-title of the respondent Ram Narayan deceased impleading parties to the appeal in the original suit and as regards the order dated 15.06.1981 pursuant to which the State Government transferred the suit land to the UIT & the entries recorded in the revenue record in favour of UIT, it was observed by the learned Single Judge that it was incumbent upon the State Government who had transferred the suit land to the UIT to have brought this fact to the notice of the learned Board of Revenue by submitting application under Order 22 R. 10A CPC, as this was a fact within the special knowledge of the State which was a party before the learned Board of Revenue in the appeal as a respondent & represented by their counsel who was contesting the appeal and there is no material on record by which it could be inferred that the defendants had a knowledge of the land being transferred by the State Government to the UIT and since the State failed to disclose the fact about the litigation to the UIT at least the defendant respondent cannot be held liable unless the defendant who was appellant acquired knowledge of the transfer & creation of interest in favour of the UIT by the State and apart from it the State Government had contested the matter before the learned Board of Revenue on merits and no prejudice has been caused to the UIT and even nothing is brought for consideration of the learned Single Judge as well claiming regarding action or prejudice being caused to the UIT in absence of being a party to the proceedings before the learned Board of Revenue and apart from it the UIT could not claim any better title or right in the suit land which was subject matter of litigation initiated at the instance of the State Government way back on 30.11.1968 in the Court of Sub-Divisional Officer, Alwar. 14. 14. What is being contended before us is nothing but reiteration of the submissions made which were considered at length by the learned Single Judge under order impugned and we do not find any error being committed by the learned Single Judge in passing order impugned which may require interference by this Court. 15. Consequently, both the appeals are devoid of merit and accordingly dismissed.Appeals dismissed. *******