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2016 DIGILAW 555 (RAJ)

Hisar Khan v. State of Rajasthan

2016-04-21

M.N.BHANDARI, VIJAY KUMAR VYAS

body2016
JUDGMENT : The appellants have challenged the order dated 11th October, 2001 passed by the learned Single Judge dismissing the writ petition where appellants had challenged the order passed by the Board of Revenue dated 6th November, 1987 and also order on review petition. 2. Learned counsel for appellants submits that by a "Kaifiyat" (Inam) dated 15th June, 1926, the ancestors of the appellant Mohammad Shahml given land for residence by the then His Highness, Jaipur. In the "Missal Hakiyat" or Samvat 1981, the entires of "kaifiyat" were made. After death of Mohammad Shah, the name of his predecessor Sheruddin Khan was era in the "Missal Hakiyat" of Samvat 1987. In Samvat 2015, the land given "kaifiyat" was recorded as "Sivai Chak" (Government land) during the settlement proceedings. Out of total land allotted to the predecessor of appellant, Khasra Nos. 68 and 69 have been used for a road. Khasra Nos. 65, 66, 69 and 71 had been allotted by the U.I.T., Jaipur to others treating it to be sivai chak" (government land). The allottees have made construction through it is illegal. Khasra Nos. 315 and 63 are in possession of the appellants where residential houses are also existing. 3. In the year 1953, the Government issued Notification under Section 4 of the Rajasthan Land Acquisition Act, 1953 (in short "the Act of 1953") for acquisition of part of the land. On 19.08.1955, the Land Acquisition Officer, Jaipur wrote a letter bringing out the fact about "kaifiyat" in favour of ancestors of the present appellants. The land acquisition proceedings were accordingly dropped. On 10.02.1967, a notice was served on the appellants alleging unauthorized occupation of the land in dispute, however, the proceedings initiated under Section 91 of the Rajasthan Land Revenue Act (in short "the Act") were also dropped. The U.I.T., Jaipur however initiated proceeding for ejectment but it was also dropped on 17.11.1981. 4. On 19.03.1983, the appellants were tried to be dispossessed forcefully by Jaipur Development Authority. The help of Police was also taken thus appellants were left with no option but to maintain an application under Section 88(2) of The Rajasthan Land Revenue Act, 1956 (in short "the Act of 1956") before the Collector. In the application aforesaid, a prayer was made to declare appellants to be khatedar of the land and thereby revenue entries showing it to be "sivai chak" (government land) be deleted. In the application aforesaid, a prayer was made to declare appellants to be khatedar of the land and thereby revenue entries showing it to be "sivai chak" (government land) be deleted. At the same time, whoever has been allotted plots by the U.I.T., should be removed. The State Government as well as JDA were made party to the said application. The reply to the application was filed by the State Government as well as by the JDA. Both the parties did not contest the "kaifiyat" in favour of ancestors of the appellant. During pendency of the proceedings under Section 88(2) of the Act of 1956, two applications were filed for impleadment. The appellants’ Advocate realised that major part of land has been allotted by the State Government or JDA thus kept their claim limited to Khasra Nos. 63 and 315. The appellants through Advocate relinquished their claim in respect of other land. The appellants had produced all the relevant documents before the Collector. It is to show that land in dispute was recorded in the name of ancestors of the appellants. Learned Collector vide his order dated 26.03.1984, allowed the application preferred by the appellants. The State Government did not challenge the order passed by the Collector, however, appeals were preferred by the JDA and others. Those appeals were heard and dismissed by the Revenue Appellate Authority vide order dated 29.01.1985. 5. The parties being aggrieved by the order of the Revenue Appellate Authority, preferred further appeals before the Board of Revenue, Ajmer. Those appeals were allowed by the Board of Revenue vide order dated 06.11.1987. The appellants herein filed a review petition before the Board of Revenue but it was also dismissed vide order dated 28.01.1988. The of appellants thereupon preferred a writ petition to challenge the order of Board of Revenue, but it has been dismissed. The present appeal has been filed to in challenge the order of learned Single Judge so as order of the Board of 10 Revenue. 6. Learned counsel for appellants submits that Section 88(2) of the Act of 1956 was rightly invoked by the appellants. Learned Collector allowed the application after hearing the parties but has been interfered by the Board of Revenue in ignorance of the scope of Section 88(2) of the Act of 1956. 6. Learned counsel for appellants submits that Section 88(2) of the Act of 1956 was rightly invoked by the appellants. Learned Collector allowed the application after hearing the parties but has been interfered by the Board of Revenue in ignorance of the scope of Section 88(2) of the Act of 1956. When land in dispute was given to ancestors of the appellants through a "kaifiyat' followed by enteries in the revenue record, an application was maintainable under Section 88(2) of the Act of 1956 to seek declaration and was rightly allowed by the Collector after appreciation of the evidence led by the appellants. In the settlement proceedings, title of the land could not have o been changed. It is without there being a proper proceedings and order, thereupon. In view of above, learned Collector found change of entries of the disputed land to be illegal. 7. A reference of Section 103 of the Act of 1956 has also been given to show definition of "land" given under the Rajasthan Tenancy Act. The land vesting in local authority situated in abadi area or set apart under Sections for the special purposes is included in the definition of "land". In view of aforesaid, even if land in dispute was recorded as "sivai chak" (government land) and thereupon given to the JDA, it was falling in the definition of "land under Section 103 of the Rajasthan Tenancy Act. Learned Board of Revenue ignored the scope of Section 88(2) of the Act of 1956 while causing interference in the order though affirmed in appeal by the Revenue Appellate Authority. Learned Single Judge refused to cause interference in the order passed by the Board of Revenue mainly in reference in the order passed b) the Board of Revenue mainly in reference to the civil suits preferred by the appellants for one and same land. The facts aforesaid were not disclosed by the appellant before the Collector though relevant orders in the civil sue were brought on record by the parties for their impleadment. 8. Learned counsel for appellants has further given reference of Law Matmi Rules, 1945 (in short "the Rules of 1945"). As per Rules 16 and 23 of the Rules of 1945, resumption of grant can be in absence of application for Matmi. 8. Learned counsel for appellants has further given reference of Law Matmi Rules, 1945 (in short "the Rules of 1945"). As per Rules 16 and 23 of the Rules of 1945, resumption of grant can be in absence of application for Matmi. As per clause (ii) of sub-rule (2) of Rule 16, the land would not liable to be resumed on the ground that matmi was not sanctioned in the past or no State sanad or patta has been produced, in entries exist in the State records Rule 23 of the Rules of 1945 provides the procedure in case of death of the State grantee and no application for matmi has been submitted. The revenue officer in those cases will publish the proclamation for calling upon persons claiming succession. It is to present their claim in the prescribed form within one month of the publication of proclamation. In the instant cast land was given in "kaifiyat" (Inam) thus was not liable to be resumed as names of ancestors of the appellant were existing in the State records. No proceedings were thereupon initiated for resumption of matmi by adopting the procedure given under Rule 23(b) of the Rules of 1945. The Board Revenue failed to consider effect of the Rules 16 and 23 of the Rules of 1945 and treated it to be a case of resumption of land. 9. A reference to the Rajasthan Land Reforms and Resumption Act, 1952 (in short "the Act of 1952") has also been given. The Board Revenue has wrongly held that lands was stood under the Act of 1952. It failed to consider that land in question was not falling under Section 2(h) of the Act of 1952 In fact, no Notification was issued by the State Government to resume the land in question, in absence of Notification for resumption of particular jagir under Section 21 of the Act of 1952, there was no question for the appellants to approach the Jagir Commissioner under Section 23 of the Act of 1952. It is further submitted that even if the Act of 1952 applies, jurisdiction of the Collector under Section 88(2) of the Act of 1956 is not ousted. The jurisdiction of the Collector is saved by Section 37(2) of the Act of 1952. It is further submitted that even if the Act of 1952 applies, jurisdiction of the Collector under Section 88(2) of the Act of 1956 is not ousted. The jurisdiction of the Collector is saved by Section 37(2) of the Act of 1952. According to the aforesaid provision, the jurisdiction of Jagir Commissioner has been ousted on certain issues and shall be inquired by the revenue officer or a court competent to do so under the Act of 1952. The correction in the revenue record after settlement proceedings is excluded from the jurisdiction of the Jagir Commissioner. Learned counsel has given reference of certain judgment of the High Court to support the arguments. 10. Learned counsel has also made reference of Section 54(1) of the Jaipur Development Act, 1982 (in short “the Act of 1982"). It is to show that even if a land was placed at the disposal of the authority, it is nothing but taking over land on behalf of the State Government. It is to be used for the purpose of the Act of 1982. In view of above, it cannot be said that the JDA became absolute owner of the land. The reference of judgment of the Apex Court in the case of Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, reported in AIR 1957 SC 344 has been given. Therein, the words "placed at the disposal of the authority" have been interpreted. It is held that the development authorities such as JDA hold the land as an agent of the government. Even if land vests in the JDA, the jurisdiction of the Collector under Section 88(2) of the Act of 1956 was not ousted. 11. The last contention of the learned counsel for appellants is regarding "lost grant". The argument aforesaid has been raised in reference to the order of the Board of Revenue, It is due to failure of the appellants to submit original "kaifiyat", a finding has been recorded in ignorance of the "doctrine of lost grant". It provides that grant made by the ruler cannot be questioned. In absence of anything contrary, non-production of the original "kaifiyat" could not have been a ground to dismiss the suit preferred by the appellants. The possession on the land was enjoyed by the ancestors of the appellant and the aforesaid was not controverted by the State of Rajasthan. It provides that grant made by the ruler cannot be questioned. In absence of anything contrary, non-production of the original "kaifiyat" could not have been a ground to dismiss the suit preferred by the appellants. The possession on the land was enjoyed by the ancestors of the appellant and the aforesaid was not controverted by the State of Rajasthan. A reference of judgment of the Apex Court in the case of B. Satyanarayana v. Konduru Venkatdpayya, reported in AIR 1953 SC 195 and also in the case of Manohar Das Mohanta v. Charu Chandra Pal, reported in AIR 1955 SC 228 have been given. In view of application of "doctrine of lost grant", non-filing of original kaifiyat was not material. The Board of Revenue committed grave illegality while giving emphasis on non-production of the original kaifiyat. In view of argument aforesaid, prayer is made to set aside the order of the Board of Revenue so as order passed by the learned Single Judge while maintaining the order passed by the Collector and affirmed by the Revenue Appellate Authority. 12. The appeal has been contested by the State Government so as the private respondents. 13. Learned Additional Advocate General Shri Rajendra Prasad submitted that an application under Section 88(2) of the Act of 1956 was not maintainable for the relief claimed by the appellants. The proper remedy was of a civil suit for declaration of rights as the land in dispute was not unclaimed but vested in the JDA. The nature of declaration sought under Section 88(2) of the Act of 1956 was not permissible to nullify vesting of land. In the alternate, land in dispute being Nazul falling within municipal limit, the remedy under Section 88 of the Act of 1956 was not permissible. It is a case where based on alleged "kaifyat", claim of the title in the land was made by the appellants. The original kaifiyat was not produced and otherwise the appellants have failed to produce any document to show interest in succession. The Board of Revenue thus considered all the issues relevant to the issue and accepted the appeal preferred by the JDA and others. 14. Learned Single Judge did not interfere in the order passed by the Board of Revenue finding material suppression of facts by the appellants. The Board of Revenue thus considered all the issues relevant to the issue and accepted the appeal preferred by the JDA and others. 14. Learned Single Judge did not interfere in the order passed by the Board of Revenue finding material suppression of facts by the appellants. While maintaining an application under Section 88(2) of the Act of 1956, the appellants did not disclose the fact regarding filing of suit for declaration of title and permanent injunction against the UIT and the State of Rajasthan in the year 1976 itself i.e. much prior to filing of the application under Section 88(2) of the Act of 1956 which was filed on 23.03.1983. In the suit, the appellants were plaintiffs and at the same time applicants in the application filed under Section 88(2) of the Act of 1956. In the suit preferred by the appellants, temporary injunction was granted on 06.12.1979 in favour of the appellants but order therein was set aside by the appellate court on 22.09.1980. The appellants then filed another suit against the JDA for permanent injunction in the year 1983. The prayer for temporary injunction was denied vide order dated 24.11.1984. The suit thereupon was dismissed in default on 04.04.1994. The appellants yet maintained another suit in the year 1987 which was third in row. The proceedings before the Collector were initiated after filing of first and second suit and remained pending prior to the disposal of the application under Section 88(2) of the Act of 1956. The dismissal of those suits had effect on the proceedings before the-Collector but were not disclosed by the appellants. Taking into consideration the concealment of material fact, learned Single Judge refused to cause interference in the order passed by the Board of Revenue. It was such a material fact which could not have been ignored as it goes in the route of the litigation. A party suppressing material fact from the court can be non-suited. After filing of suit, the doctrine of res-judicata applied on the application under Section 88(2) of the Act of 1956. 15. Learned Additional Advocate General further submitted that proceedings under Section 88(2) of the Act of 1956 provide for summary procedure. It cannot be used for a remedy which can be taken by maintaining a civil suit for declaration of title as otherwise referred under Section 88(3) of the Act of 1956. 15. Learned Additional Advocate General further submitted that proceedings under Section 88(2) of the Act of 1956 provide for summary procedure. It cannot be used for a remedy which can be taken by maintaining a civil suit for declaration of title as otherwise referred under Section 88(3) of the Act of 1956. When a suit for declaration of title has been dismissed, claim of title in the land by maintaining an application under Section 88(2) of the Act of 1956 could not have been granted by the Collector. If factum of filing of suit would have been brought to the knowledge of the Collector, it would not have proceeded in the case. In view of above, this court may not cause interference in the order passed by the Board of Revenue so as learned Single Judge. 16. On the scope of inquiry under Section 88(2) of the Act of 1956, the judgment of the Apex Court in the case of State of Rajasthan v. Padmavati Devi (smt) (Dead) by LRS., reported in 1995 Supp (2) SCC 290 has been referred. Therein, considering the scope of inquiry under Section 91 of the Rajasthan Land Revenue Act, 1956, it was held that question about rights in the land cannot be decided in summary proceedings Therein, earlier judgment of the Apex Court in the case of Govt, of A.P. v. Thummala Krishna Rao, reported in (1982) 2 SCC 134 was relied. In view of above, appellants were not having remedy under Section 88(3) of the Act of 1956 but remedy by way of suit and had been availed and remained adverse to them. It is looking to the fact that land in dispute was recorded as "sivai chak" (government land) and thereupon vested in JDA prior to filing of the application under Section 88(2) of the Act of 1956. The cancellation of entries is not permissible on an application under Section 88(2) of the Act of 1956. 17. The facts pertaining to the proceedings for acquisition of land and even proceedings under Section 91 have been explained. It is submitted that dropping of the proceedings under the Act of 1953 or under Section 91 of the Act does not mean grant of title in favour of the appellants. The dropping of those proceedings under misconception of facts does not improve the case of the appellants. It is submitted that dropping of the proceedings under the Act of 1953 or under Section 91 of the Act does not mean grant of title in favour of the appellants. The dropping of those proceedings under misconception of facts does not improve the case of the appellants. It is more so when appellants took remedy under Section 88(2) of the Act of 1956 for their claim though not maintainable. 18. Learned Additional Advocate General has made reference of entries in the revenue record which in fact does not show right of the appellants in absence of proof of succession. 19. A further reference of Section 88(1) of the Act of 1956 has been given which declares vesting of certain land in the State of Rajasthan. In view of above, proceedings under Section 88(2) of the Act of 1956 would apply in case properties are vested in State of Rajasthan and available for disposal by the Collector under Section 88(1) of the Act of 1956. In the instant case, the land vested in JDA thus was not at the disposal of the Collector under Section 88(1) so as to apply Section 88(2) of the Act of 1956 can be taken where formal inquiry is to be made and not in those cases where there is a contest of title. It can be taken only by way of maintaining civil suit for adjudication of complicated question of facts and had been availed. 20. Learned Additional Advocate General referring to the Jaipur Matmi Rules, 1945, submitted that those rules may apply when relevant document is filed to ascertain the nature of grant. It is apart from the fact that even as per Rules of 1945, grant stands resumed in favour of the State in absence of proceedings after death of grantee. The original "kaifiyat" was required to be produced to find out the nature of grant i.e. as to whether it gives right of succession. The appellants failed to submit original "kaifiyat" to show the nature of grant. If appellants are at all taken to be successor then cannot have right in the land in absence of the document. The land otherwise resumed in favour of the State not only in reference to the Rules of 1945 but in regard to the Act of 1952 also. If appellants are at all taken to be successor then cannot have right in the land in absence of the document. The land otherwise resumed in favour of the State not only in reference to the Rules of 1945 but in regard to the Act of 1952 also. It resumed in favour of the State not only in reference to the Rules of 1945 but it regard to the Act of 1952 also. It resumed in favour of the State in absence of proceedings under the said Act. The reference of Sections 2(j) and 2(h) of the Act of 1952 has been given to emphasis inclusion of grantee of jagir land. As per First Schedule, Kaifiyat (Inam) has also been included and thereby the Act of 1952 applies to the appellants if at all it is assumed that there was a kaifiyat with succession right. As per the Act of 1952, land in question being in Abadi (Urban), became subject to resumption unless it is declared as private property under Section 23 of the Act of 1952. The power of declaration of private properties has beer conferred upon the Jagir Commissioner under Section 23(2). There is no document on record to show that land in question was ever declared to be private property by the Jagir Commissioner. The Revenue Board thus rightly held that in absence of order under the Act of 1952, rights of appellants are not established. 21. Learned Additional Advocate General further submitted that as per Section 54 of the Act of 1982, land vested in JDA thus became subject of allotment, regularisation, etc. by JDA alone. The provision therein overrides the provisions of the Act of 1956, It is as per Section 92 of the Act of 1982. On vesting of land in JDA, it fell under exception of Section 88(1) of the Act of 1956. In view of overriding effect of laws, inquiry under Section 88(2) of the Act of 1956 was not maintainable. 22. it is lastly contended that entry in favour of the State Government was made in Samvat-2015 and thereupon it was vested in JDA. The remedy availed by the appellants by way of civil suit or under Section 88(2) of the Act of 1956 was almost after four decades. 22. it is lastly contended that entry in favour of the State Government was made in Samvat-2015 and thereupon it was vested in JDA. The remedy availed by the appellants by way of civil suit or under Section 88(2) of the Act of 1956 was almost after four decades. The limitation may not have been provided for an application but laches comes in the way of the appellants and has not been explained at any place. The prayer is accordingly to dismiss the appeal preferred by the appellants. 23. Learned counsel for private respondents have adopted the arguments made by learned Additional Advocate General, however, referred various judgments to support the arguments. 24. We have considered the rival submissions made by the parties and scanned the matter carefully. 25. The brief facts pertaining to the case have already been given thus need not to be reiterated. The appellants had invoked Section 88(2) of the Ad of 1956 to seek following relief which is quoted thus :- ^vr% izkFkZuki= izLrqr dj fuosnu gS fd Hkwfe [kljk uEcjku 63 jdck 1] 67 jdck 1] 71 jdck 1] 315 jdck 5@3] 69 jdck 1] 65 jdck 2@2 okds ekSt gFkjksbZ rglhy t;iqj izkFkhZx.k dks ?kksf"kr djus dh d`ik dj o bUnzkt flok;pd jktLo jsdkMZ ls gVkus dh d`ik djsa rFkk [kljk ua0 65] 67] 69] 71 ds ftl Hkkx ij jkT; ljdkj us Vhxj yksxksa dks IykV dkV dj clk fn;k gS mu IykVksa dk eqvkotk fnyk;s tkus dh d`ik djsaA* 26. The perusal of relief quoted above shows declaration of title in favour of the appellant and at the same time to remove the entries from the revenue record. An application was submitted under Section 88 of the Act of 1956 and see its scope, it is quoted thus : "88. All roads etc. The perusal of relief quoted above shows declaration of title in favour of the appellant and at the same time to remove the entries from the revenue record. An application was submitted under Section 88 of the Act of 1956 and see its scope, it is quoted thus : "88. All roads etc. and all land which are not the property of others belong to the State-(1) All public roads, lanes, paths, bridges and ditches; all fences on or beside the all rivers, streams, lakes and tanks, all canals and watercourses, all standing and flowing water, and all lanes 45 wherever situated, which are not the property of individuals or of bodies; of person legally capable of holding property are except in so far as an; rights of such persons or bodies may be established in over the same and except, may be otherwise provided in any law for the time being in force, and are hereby declared to be, with all rights in or over the same or appertaining thereto, the property of the State; and it shall be lawful for the Collector subject to the [order of the Commissioner] to dispose of them in such manner as may be prescribed subject always to the rights of way and all other rights of the public or of individuals legally subsisting. (2) Where any property or any right in over any property is claimed by or on behalf of the State or by any person as against the State, it shall be lawful for the Collector, after formal inquiry of which due notice has been 1 given to pass an order deciding the claim. (3) Any suit instituted in any civil court after the expiration of any year from the date of any order passed under sub-section (1) of sub-section 92) or, if one more appeals have been made against such orders within the period of limitation, then from the date of any order passed by the final appellate authority, shall be dismissed (although limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order; provided that in the case of an order under sub-section(2), the plaintiff has had due notice of such order. (4) Every person shall be deemed to have been due notice of an inquiry or order under this section, if notice thereof has been given in accordance with the provisions of this Act or the rules made thereunder. (5) Any order passed under sub-section (1) or sub-section (2) shall be enforceable by the Collector in the prescribed manner." 27. Section 88(1) of the Act of 1956 talks about public roads, lanes, paths, etc. which includes rivers, canals, etc. which are not the properties of individuals or bodies or persons legally capable of holding it and rights are established by law for the time being in force, would be considered to be properties of the State. It would be however lawful for the Collector to dispose of them in the prescribed manner subject to the order of the Commissioner. The land in dispute had vested in UIT (now JDA) and its disposal was not in the hands of the Collector but JDA itself. Sub-section (2) of Section 88 talks about formal inquiry if any right over the property is claimed by the State or any person against the State. Under sub-section (2), a detailed inquiry cannot be made which needs not only to determine the issue of title but change of entry of the revenue record. What is the scope of formal inquiry has been determined by the Apex Court in the case of Padmavati Devi (supra) while considering Section 91 of the Rajasthan Land Revenue Act. It is held that in summary procedure, complicated question of 4 title and rights pertaining to the land cannot be determined. Any dispute which requires evidence cannot be adjudicated under summary procedure. Para 6 of the judgment in the case of Padmavati Devi (supra) is quoted thus "6. As noticed earlier Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of Government land. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Government of Andhra Pradesh v. Thummala Krishna Rao and Anr. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Government of Andhra Pradesh v. Thummala Krishna Rao and Anr. 1982 (3) SCR 500 , has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law." 28. In the formal inquiry, summary procedure is to be adopted where complicated question of facts and law cannot be determined. In the instant case, the complicated question of law and facts were involved requiring evidence by the parties. In view of aforesaid, learned Collector could not have passed the order to determined the title and also to nullify the entries made in the revenue record. 29. If for the sake of arguments, jurisdiction of Collector is also accepted, the question would be about conduct of the appellants. It is a fact that prior to initiation of proceedings under Section 88(2) of the Act of 1956, the appellants herein instituted a suit for declaration of title and permanent injunction in the year 1976. The fact aforesaid was crucial because it was for one and same land. Two remedies cannot be taken simultaneously or one after another as principle of res judicata applies. The fact aforesaid was crucial because it was for one and same land. Two remedies cannot be taken simultaneously or one after another as principle of res judicata applies. The application for temporary injunction was dismissed therein on 22.09.1980 itself i.e. almost three years prior to filing of the application under Section 88(2) of the Act of 1956. The another suit for permanent injunction was again instituted in the year 1983 i.e. in the same year in which application under Section 88(2) of the Act of 1956 was filed. The suit was later on dismissed in default on 04.04.1994. The third suit was filed in the year 1987 i.e. after disposal of the application under Section 88(2) of the Act of 1956. The facts given above Show that two civil suits were preferred prior or simultaneous to application under Section 88(2) of the Act of 1956 and those facts were suppressed by the appellants, thus learned Single Judge recorded his finding against the appellant. 30. Learned counsel for appellants has referred certain documents pertaining to the civil suits but they were filed by the private respondents and not by the appellants herein. The documents so submitted, do not include the dismissal of the injunction application by the appellate court. In any case, learned counsel for appellants could not show that facts pertaining to the civil suits and order passed therein were placed or brought to the notice of the Collector by them. The facts aforesaid were relevant and have been considered by the learned Single Judge while dismissing the writ petition. The suppression of material fact disentitled a party to seek relief. If the civil suits for declaration of title and permanent injunction had been dismissed, relief cannot be granted on the application under Section 88(2) of the Act. It cannot be that between one and same party and for one and same issue, there can be two orders in contradiction. It was, therefore, encumbered on the appellants to bring aforesaid fact before the Collector. Looking to the suppression of material fact, learned Single Judge rightly dismissed the writ petition preferred by the appellants. 31. The fact further remains that claim was made on the basis of a "kaifiyat". The original "kaifiyat" was not produced by the appellants herein though reference of certain entries made in the revenue record has been given. Looking to the suppression of material fact, learned Single Judge rightly dismissed the writ petition preferred by the appellants. 31. The fact further remains that claim was made on the basis of a "kaifiyat". The original "kaifiyat" was not produced by the appellants herein though reference of certain entries made in the revenue record has been given. The Revenue Board found that in absence of submission of original "kaifiyat", the Collector ought not to have passed the order. The original document was required to be produced and in absence of it, nature of kaifiyat cannot be determined. The "kaifiyat" (Inam) may be given to the grantee with rights of succession or without such rights. If "kaifiyat" is given without rights of succession, it could not be used by successor to claim rights in the property. The appellants had failed to submit original "kaifiyat". It was required in the facts and circumstances of the case and if at all is taken to be a case of grant of "kaifiyat" with succession right, it is to be regulated by the Rules of 1945 and the Act of 1952. 32. Learned counsel for appellants has referred Rules 16 and 23 of the Rules of 1945 thus both the provisions are reproduced hereunder for ready reference : "Rule 16. 32. Learned counsel for appellants has referred Rules 16 and 23 of the Rules of 1945 thus both the provisions are reproduced hereunder for ready reference : "Rule 16. (1) Subject to the provisions of sub-rule (2), a grant shall be resumed - (a) if there is no applicant for matmi or if for any reason, the applicant is not entitled to succeed; or (b) if the last holder was out of possession and the applicant is not entitled to recover possession; or (c) if the application is time-barred under rule 12 or, in the case of a holder who died before the 15th April, 1927, no application for matmi was made within six months from the 20th May, 1936; or (d) if no state sanad or patta is produced, the grant is not recorded in the state offices, and no matmi has been sanctioned in the past; or (e) if it was made without the prior sanction of the ruler, by (1) a zenana sarkar or a member of the ruling family - upon the death of such sarkar or member; or (ii) any other state-grant upon the reversion to the state of the village or land held by such state grantee, even though matmi may have been sanctioned in the past; or (f) if the claimant is the son of a dismissed tankhadar,-even though matmi may have been sanctioned in the past; (g) to the extent of such portion as was not disclosed at the last matmi: Provided that if the grant was made for the maintenance of a pakka temple or mosque, Government will arrange for the maintenance of such temple or mosque by making a suitable cash grant. (2) A grant shall not be liable to resumption - (i) on the ground of absence of entry in the state offices or failure to produce a state sanad or patta-if matmi has been sanctioned in the past; (ii) on the ground that no matmi was sanctioned in the past or no state sanad or patta has been produced - if entries exist in the state records; (iii) on the ground mentioned in sub-clause (ii) of clause (c) of sub-rule (i) - if the land is situated in a non-khalsa village and the person in possession of the land is a trespasser. In such case the Government will refrain from interference for so long as the village remains non-khalsa." "Rule 23. (1) On receipt of information regarding the death of a State grantee, the revenue officer competent to hold an enquiry under rule 22 shall forthwith institute a case, attach the property, if necessary, under rule 8 and take further action as indicated below- (a) If an application for matmi under rule 11 has been made, the revenue officer shall examine the application to see that it is, in every respect, complete and accurate. He shall, where the particulars given in the application are incomplete or inaccurate, examine the applicant and direct him to remove the omissions or errors; and when this has been done, he shall fix a date for the production of documents and other evidence in support of the application. He shall, at the same time, consult the previous matmi file and obtain a report under rule 25 from the Dewani Huzuri Office. The applicant shall be required to produce a certified copy of the genealogical table produced and accepted at the time of the last matmi. In this copy the officer holding the inquiry may after according evidence on oath and the names of persons born after the production of the original genealogical table and no others. The inquiry shall be completed within two months of the date of the institution of the case where the applicant is a direct male lineal descendant of the last holder and within four months if the applicant is a person other than a direct male lineal descendant. Where the Tehsildar or Nazim considers the time thus allowed for submission of his report to be, for any reason, insufficient, he shall apply to the Deputy Commissioner for extension of the time and shall submit his report within the time so extended. (b) Where no application for matmi has been made, the revenue officer shall publish a proclamation calling upon all persons claiming succession to present their claims in the prescribed form within one month of the publication of the proclamation and at the same time, take steps to place on the record full particulars of the grant, the genealogical table and other relevant material available from the Dewani Huzuri Office, under rule 25. One copy of such proclamation shall be affixed on the notice board of the revenue office and another on the outer door or other conspicuous part of the house in which the last holder resided, or, if he did not reside in the village in which the grant is situated, on some conspicuous place in the village in which the grant a situated, in the presence of the patel and patwari of the village. The revenue officer shall also cause the proclamation to be published in the Jaipur Gazette. (2) In the case of a grant situated in a non-khalsa village, the revenue officer making the inquiry shall given notice of the claim, under clause (a) sub-rule (1) to the thikana concerned." 33. Rule 16 provides about resumption of grant subject to sub-rule (2) of the Rules of 1945. Rule 16(1)(a), however, makes it clear that if there is no applicant for matmi or for any reason, the applicant is not entitled to succeed, grant shall be resumed. The appellants herein failed to show their entitlement to succeed in pursuance to the alleged "kaifiyat" though their emphasis is to apply sub-rule (2) of Rule 16 of the Rules of 1945. On perusal of sub-rule (2) of Rule 16 also, clause (a) applies when matmi has been sanctioned in the past or entries exist in the State record. It is not the case herein. 34. The word 'matmi" has been defined under Rule 4(3) of the Rules of 1945. The appellants neer pleaded their case under sub-rules (1) and (2) of Rule 16. In absence of pleading or document even sub-rule (2) of Rule 16 would not apply. Rule 23 of the Rules of 1945 applies on receipt of information regarding death of the State grantee. Sub-clause (a) provides or the application for matmi under Rule 11 but it is not the case of the appellants that any such application was filed by them. Sub-clause (b) of sub-rule (1) applies when no application has been made. Therein revenue officer needs to publish a proclamation calling upon the persons claiming succession to present their claim. It should be submitted in the prescribed form within one month of the publication of the proclamation. It is not the case of the appellants that they had made their claim in the prescribed form on publication of proclamation. Therein revenue officer needs to publish a proclamation calling upon the persons claiming succession to present their claim. It should be submitted in the prescribed form within one month of the publication of the proclamation. It is not the case of the appellants that they had made their claim in the prescribed form on publication of proclamation. The proceedings as envisaged under Rule 23 have not been shown to claim right in the land after death of alleged State grantee. The appellants have failed to take up any such issue. 35. The Board of Revenue considered the case from all angles in reference to the Rules of 1945 and the Act of 1952 and allowed the appeal preferred against the appellants herein. In absence of matmi, the land resumed in favour of the State and could not have been subject to proceedings under Section 88 (2) of the Act of 1956. 36. It is further a fact that as per Sections 2(h) and 2(j) of the Act of 1952, the land of a grantee of jagir land is also included. The jagir land includes any of the tenures specified in the First Schedule. At Item No.7 of the First Schedule, "Inam" (Kaifiyat) has been included and is to be taken as jagir land as per Section 2(h) of the Act of 1952 As per Section 23 of the Act of 1952, declaration of properties to be private lies with the Jagir Commissioner. At Item No.7 of the First Schedule, "Inam" (Kaifiyat) has been included and is to be taken as jagir land as per Section 2(h) of the Act of 1952 As per Section 23 of the Act of 1952, declaration of properties to be private lies with the Jagir Commissioner. Sections 2(h), 2(j), 21, 23 & 37 of the Act of 1952 are quoted thus : "2(h) ‘Jagir land’ means any land in which or in relation to which a Jagirdar has rights in respect of land revenue or any other kind of revenue and includes any land held on any of the tenures specified in the First Schedule." "2(j) 'land' includes benefits to arise out of land and things, attached to the earth or permanently fastened to anything attached to the earth and also shares in or charges on, the revenue or rent of villages or towns, sites of villages or towns, or other defined portions of territory." "Section 21 - Resumption of jagir lands (1) As soon as may be after the commencement of this Act, the Government may, by notification in the Rajasthan Gazette, appoint a date for the resumption of any class of jagir lands and different dates may be appointed for different classes of jagir lands. (2) The Government may, by notification in the Rajasthan Gazette, vary any date appointed under this section at any time before such date. (2) The Government may, by notification in the Rajasthan Gazette, vary any date appointed under this section at any time before such date. (3) The date finally appointed under this section in relation to the resumption of any jagir lands is hereinafter referred to as the date of resumption of those jagir lands." Section 23 - Private lands, buildings, wells, house the sites and enclosures (1) Notwithstanding anything contained in the last preceding section- (a) Khudkasht lands of Jagirdar;] (b) (i) all open enclosures used for agricultural or domestic purposes and in continuous possession (which including possession of any predecessor-in-interest) for1 [six] years immediately before the date of resumption; 2[(ii) XXX] (iii) all private buildings, places of worship, and wells situated in, and trees standing on lands, included in such enclosures or house-sites, as are specified in clause (i) 2[X X X] above, or land appertaining to such buildings or places of worship; (iv) all groves-[and fruit trees] wherever situate, belong to or held by the Jagirdar or any other person; (d) all tanks in the personal occupation of the Jagirdar and not used for irrigating the lands of any tenant in the jagir land, shall continue to belong to or be held by such jagirdar or other person : [Provided that nothing contained in Clause (d) shall affect the rights of the jagirdar in any portion of a tank which may be in the personal cultivation of the jagirdar.] (2) If any question arises whether any property is of the nature referred to in sub-section (1) it shall be referred to the Jagir Commissioner, who may, after holding the prescribed enquiry, make such order thereon as he deems fit." "Section 37 - Question of title (1) If in the course of a proceedings under this Act any question relating to title, right or interest in any jagir land, other than a question as to any Khudkasht land or the correctness or otherwise of any entry relating thereto in settlement records or as to any boundary, map, field-book, record of rights or annual register or as to any Wazib-ul-arz or Dasturgahwai or any other settlement paper lawfully prepared or as to the correctness or otherwise of any entry made therein or a question referred to in Section 3 of the Rajasthan Jagir Decisions and Proceedings (Validation) Act 1955, arises and the question so arising has not already been determined by a competent authority, the Jagir Commissioner shall proceed to make an inquiry into the merits of the question so arising and pass such orders thereon as he deems fit.] (2) Every question referred to in Section 3 of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 shall be inquired into and decided by a Revenue Officer or Court declared by the provisions of the said Act competent to do so. (3) Every other question excluded by sub-section (1) from the jurisdiction of the Jagir-Commissioner shall be inquired into and decided by a revenue officer or Court competent to do so under the provisions of the Rajasthan Land Revenue Act, 1956 or the Rules made thereunder. (4) If any such question as is referred to in sub-secs. (2) and (3) arises in the course of a proceeding under this Act, the Jagir Commissioner shall refer it for inquiry and decisions of the Court competent to do so and shall be bound by, and act according to such decision.)" 37. Learned counsel for appellants has made reference of Sections 21 and 37(2) of the Act of 1952. It is to show that no order of resumption of particular jagir was notified as required under Section 21 thus there was no reason for the appellants to approach the Jagir Commissioner. The argument has been made in ignorance of the Notification issued by the Government and that the Inam is included in the definition of "Jagir Land" as per Section 2(h) of the Act of 1952. 38. It is further submitted that Section 37 does not oust the jurisdiction of Collector under Section 88(2) of the Act of 1956. The argument aforesaid has been made in ignorance of the fact that the appellant has claimed title in the land which can be made by the Commissioner though correction of entries is not in its jurisdiction but when declaration is sought, it can be decided by the Commissioner and on getting it, application for correction of entries can be made before the Revenue Officer. It is also a fact that jagir land stand resumed unless it is shown to be private property and in case of dispute, a declaration is to be take from the Commissioner, which does not exist herein. 39. In view of above, we are unable to accept any of the arguments of learned counsel for appellants in reference to the Rules of 1945 and the Act of 1952. In fact, the land in dispute resumed in the State in absence of order sought under the Rules of 1945 and the Act of 1952. In fact, the land in dispute resumed in the State in absence of order sought under the Rules of 1945 and the Act of 1952 though required in the facts and circumstances of the case. In fact, the land in dispute resumed in the State in absence of order sought under the Rules of 1945 and the Act of 1952. In fact, the land in dispute resumed in the State in absence of order sought under the Rules of 1945 and the Act of 1952 though required in the facts and circumstances of the case. To save it from resumption, the Collector had no jurisdiction rather ignored all these provisions while holding formal inquiry. It is otherwise not permitted to decide complicated questions of law in formal inquiry. 40. A reference of Section 54 of the Act of 1982 is also relevant, hence, quoted : "Section 54 - Land to vest in the Authority and its disposal: (1) Notwithstanding anything contained in the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No. 15 of 1956), the land as defined in Section 103 of that Act, excluding land referred to in Sub-clause (ii) of Clause (a) of the said section and Nazul Land placed at the disposal of a local authority under Section 102-A of that Act in Jaipur Region shall, immediately after establishment of the Authority under Section 3 this Act, be deemed to have been placed at the disposal of and vested in the Authority which shall take over such land for and on behalf of the State Government and may use the same for the purposes of this Act and may dispose of the same-*(by way of allotment, regularisation or auction) subject to such conditions and restrictions as the State Government may, from time to time, lay down and in such manner, as it may, from time to time, prescribe: Provided that the Authority may dispose of any such land - (a) without undertaking or carrying out any development thereon; or (b) after undertaking or carrying out such development as it thinks fit, to such person, in such manner and subject to such covenants and conditions, as it may consider expedient to impose for securing development according to plan. (2) No development of any land shall be undertaken or carried out except by or under the control and supervision of the Authority. (2) No development of any land shall be undertaken or carried out except by or under the control and supervision of the Authority. (3) If any land vested in the Authority is required at any time thereafter by the State Government, the Authority shall, by notification in the Official Gazette place it at the disposal of the State Government upon such terms and conditions as may be agreed upon between the State Government and the Authority. (4) All land acquired by the Authority, or by the State Government and transferred to the Authority, shall be disposed of by the Authority in the same manner as may be prescribed for land in Sub-section (1)." 41. As per Section 54 of the Act of 1982, the land once vested in the JDA, it remains on its disposal. Section 88(1) remains in operation till allotment of land can be made by the Collector in the prescribed manner subject to an order passed by the Commissioner. The provision aforesaid does not make reference about allotment of land in the hands of JDA, may be, as per the direction of the State Government. In absence of application of Section 88(1) of the Act of 1956 for disposal of land by the Collector, the provisions of Section 88(2) of the Act of 1956 could not have been invoked by the appellants. The fact aforesaid has also been ignored by the Collector while passing order on the application under Section 88(2) of the Act of 1956. 42. The last argument raised by learned counsel for appellants is in reference to "doctrine of lost grant". It is submitted that merely due to non-production of original "kaifiyat", the claim of appellants should not have been denied. It is when appellants and their forefathers were having possession on the land since long time. A reference of judgments of the Apex Court in the cases of B. Satyanarayana (supra) and Manohar Das Mohanta (supra) has been given. 43. The argument aforesaid has been made in ignorance of the provisions of the Rules of 1945 and the Act of 1952 where the land of jagir resumed in the State in absence of an order. When law take its own effect then "doctrine of lost grant ' cannot be accepted. 43. The argument aforesaid has been made in ignorance of the provisions of the Rules of 1945 and the Act of 1952 where the land of jagir resumed in the State in absence of an order. When law take its own effect then "doctrine of lost grant ' cannot be accepted. It is while accepting the argument of learned counsel for appellants that even if original "kaifiyat’ was not produced, their rights should have been determined based on the revenue record. If the fact aforesaid is also accepted, the appellants were required to deal with the issue in reference to the Rules of 1945 and effect of the Act of 1952 apart from the Act of 1982 while maintaining application under Section 88(2) of the Act of 1956. The "doctrine of lost grant" applies when sufficient evidence and convincing proof of the nature of grant and possession are produced. The judgments referred above are for "Inam" but facts are distinguishable. Therein, the issue in reference to different provisions was not dealt with. The proceedings therein were taken in a suit and not by formal inquiry as provided under Section 88(2) of the Act of 1956. If appellants would have contested the suit, the court could have considered all the issues and referring to the Rules of 1945 and the Act of 1952 apart from the Act of 1982. The position of fact is similar in the cases of B. Satyanarayana (supra) and Manohar Das Mohanta (supra). Thus the argument in reference to "doctrine of lost grant" cannot be accepted in the facts and circumstances of the case. 44. The Board of Revenue found that sub-sections (1) & (2) of Section 88 of the Act of 1956 have to be read together. In those circumstances, application under the aforesaid provision was not maintainable when the land in dispute was recorded to be "Sivai Chak" in Samvat 2015 itself. If entry in the "Jamabandi" was incorrectly made then correction of the entry in the revenue record could not have been sought under Section 88 of the Act of 1956. It is more so when a separate provision exists to seek correction of entry. Till the prayer is accepted, presumption of truth attached to the entry needs to be made as per Section 148 of the Act. It was also found that Section 88 cannot be invoked for multi-corner contest of claims. It is more so when a separate provision exists to seek correction of entry. Till the prayer is accepted, presumption of truth attached to the entry needs to be made as per Section 148 of the Act. It was also found that Section 88 cannot be invoked for multi-corner contest of claims. It is more so when it exists against the JDA in addition to the State. Section 54 of the JDA Act, 1982 provides for vesting of land. Section 3(1)(b) of the Act defines "Nazul Land" to include Abadi land within the limites of municipality. The land in question was recorded as "Gair Mumkin Abadi" thus it becomes Nazul land. The Notification was issued by the State Government on 08.10.1959 in exercise of powers under Section 102 of the Act to place Nazul land lying within the municipal jurisdiction at the disposal of municipality concerned. By another Notification dated 08.03.1961, the Nazul land was made at the disposal of UIT, Jaipur which includes the land in dispute. In view of above, remedy under Section 88 of the Act was not available rather it could have been taken by a suit for declaration and which was filed by the appellant and had been dismissed. 45. The Board of Revenue further found that "Kaifiyat" referred it to be of 1926 AD (Samvat 1983) and formed the basis of unattested entry in the remark column of "Missal Hakiyat" of Samvat 1987. The original 30 document was not produced and there was no entry of Khatoni as "Missal Hakiyat" pertains only to a tenant thus gives rise to suspicion, as it was forged. The Board of Revenue lastly found that challenge to the settlement entry can also be either in pending settlement operation or under Section 136 or 125 of the Act and lastly by a regular suit for 35 declaration. As per Section 140 of the Rajasthan Tenancy Act, presumption of truth attached to the entires made in regard of rights and thus the Collector had no jurisdiction to go beyond such entry in the proceedings under Section 88 of the Act of 1956. We find that detailed reasoning's have been given by the Board of Revenue while 40 dismissing the appeal. 46. We find that detailed reasoning's have been given by the Board of Revenue while 40 dismissing the appeal. 46. In the light of discussion made above, we do not find any reason to cause interference in the order passed by the Board of Revenue so as in the order passed by the learned Single Judge. 47. The special appeal is thus dismissed so as stay application.