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2015 DIGILAW 1266 (RAJ)

Banwari Lal v. State of Rajasthan

2015-07-08

SANGEET LODHA

body2015
JUDGMENT : Sangeet Lodha, J. This petition is directed against order dated 12.12.13 of the Board of Revenue Rajasthan, whereby while allowing the reference made under Section 232 of Rajasthan Tenancy Act, 1955 (for short "the Act") by the Additional District Collector, Deedwana, District-Nagaur, the judgment and decree dated 26.4.85 passed by the Assistant Collector, Nawa in Suit No.7/97 in favour of the petitioners have been set aside. 2. The relevant facts are that the petitioners preferred a suit for declaration and correction of record before the Assistant Collector, Parbatsar in respect of the land measuring 1.11 bighas comprising khasra no. 406/2. The suit was proceeded ex parte against the State and was ultimately decreed by judgment and decree dated 26.4.85. Shri Narendra Dev, the respondent no. 5 herein, preferred an application under Section 232 before the Additional District Collector, Nagaur, stating that the land in question which is abadi land was never in possession of the petitioners herein and the ex parte decree obtained by them is a collusive decree. The Additional Collector being of the opinion that the decree obtained by the petitioners herein is collusive, while allowing the application preferred by the respondent no. 5 referred the matter to the Board of Revenue Rajasthan for setting aside the decree. After due consideration of the rival submissions, the reference made has been accepted by the Board of Revenue and the judgment and decree passed in favour of the petitioners as aforesaid stand set aside. Hence, this petition. 3. Learned counsel for the petitioners contended that the Board of Revenue has failed to appreciate the controversy raised in correct perspective. Drawing attention of this court to the order impugned, it is submitted that in the reference proceedings the petitioner no. 1-Banwari Lal was not impleaded as party respondent and the legal representatives of deceased-Narayan Das, the petitioner no. 3/1 was though impleaded as party was never served with the notice of the proceedings pending before the Board of Revenue. Learned counsel submitted that the petitioners have already constructed pakka houses over the land in question has also not been taken into consideration by the Board of Revenue. 3/1 was though impleaded as party was never served with the notice of the proceedings pending before the Board of Revenue. Learned counsel submitted that the petitioners have already constructed pakka houses over the land in question has also not been taken into consideration by the Board of Revenue. Learned counsel further submitted that the petitioner-Banwari Lal had filed a suit for permanent injunction against the State and Dwarka Das seeking injunction not to dispossess him from the house constructed by him over the land in question which was decreed vide judgment and decree dated 26.2.96 passed by the Civil Judge (J.D.), Nawa City and aggrieved thereby an appeal preferred by the State also stands dismissed by the Appellate Court vide judgment and decree dated 27.3.99, which have not been taken into consideration by the Board of Revenue while passing the impugned order. Learned counsel submitted that yet another suit for declaration and injunction preferred on behalf of Thakur Shri Raghunathji Nawa inter alia against the petitioner no. 3/1 to 3/3 in respect of the land in question stands dismissed by the court of competent jurisdiction vide judgment and decree dated 28.4.10 which has also not been taken note of by the Board of Revenue. Accordingly it is submitted that the findings arrived at by the Board of Revenue are ex facie erroneous and perverse. 4. On the other hand, learned counsel appearing for the State submitted that as per the revenue record, the land in question being of gair mumkin category, it is affected by Section 16 of the Act and therefore, could not have been directed to be regularised. Learned counsel submitted that there was absolutely no evidence on record showing continuous uninterrupted possession of the petitioners herein over the land in question. 5. I have considered the rival submissions and perused the material on record. 6. A perusal of the judgment dated 26.4.85 passed by the Assistant Collector, Nawa Sahar reveals that Banwari Lal s/o Hanuman Prasad was plaintiff no. 2 in the suit. However, a perusal of the order impugned passed by the Board of Revenue reveals that Banwari Lal, the petitioner no. 1 herein, was not even impleaded as party to the reference proceedings. A perusal of the judgment dated 26.4.85 passed by the Assistant Collector, Nawa Sahar reveals that Banwari Lal s/o Hanuman Prasad was plaintiff no. 2 in the suit. However, a perusal of the order impugned passed by the Board of Revenue reveals that Banwari Lal, the petitioner no. 1 herein, was not even impleaded as party to the reference proceedings. Indisputably, the petitioner-Banwari Lal was one of the beneficiaries of the judgment and decree dated 26.4.85 passed by the revenue court of competent jurisdiction and therefore, while initiating proceedings for setting aside the decree he was required to be extended an opportunity of hearing. In this view of the matter, in the considered opinion of this court, the order impugned passed by the Board of Revenue deserves to be set aside on this count alone. 7. Accordingly, the writ petition is allowed. The impugned order dated 12.12.13 passed by the Board of Revenue is set aside. The matter is remanded to the Board of Revenue for decision afresh in accordance with law. The parties are put to notice to appear before the Board of Revenue on 5.8.15. The Board of Revenue shall decide the reference expeditiously preferably within a period of three months. No order as to costs.