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2017 DIGILAW 1325 (RAJ)

Devki v. State of Rajasthan

2017-05-24

ARUN BHANSALI

body2017
ORDER : Arun Bhansali, J. 1. This writ petition has been filed by the petitioner aggrieved against the order dated 15.9.1999 passed by the Board of Revenue, Ajmer, whereby, the application filed by the petitioner under Section 221 of the Rajasthan Tenancy Act, 1955 (‘the Act 1955’) aggrieved against the judgment and decree dated 27.9.1997 passed by the S.D.O. Anoopgarh has been rejected. 2. Respondent Dalip Singh filed a suit for division of holding under Section 53 of the Act against his father and brother qua the land situated at village Momewala, Tehsil Anoopgarh, which after colonization became part of Chak 5 MD. It was inter-alia indicated that based on family settlement, which was registered on 25.5.1970, the petitioner got 60 Bigha 12 Biswa land and his brother received 50 Bigha of land, however, Dalip Singh, who received 10 Bigha land in excess did not retain excess land and both the brothers partitioned the land equally. It was indicated that the land continues to stand in the revenue record in the name of their father and, therefore, the suit was being filed. 3. A consent written statement was filed by both the defendants i.e. father and brother. 4. During the pendency of the suit, an application under Order I Rule 10 CPC was filed by the petitioner Devki inter-alia claiming that father of the plaintiff had given a Power of Attorney dated 29.10.1959 to one Chunni Lal S/o Ganga Ram and the said Power of Attorney holder Chunni Lal transferred 49 Bigha 1 Biswa land to applicant Devi and one Banarsi Das out of which 25 Bigha land was sold to Banarsi Das and 24 Bigha 1 Biswa was transferred to Devki on 24.11.1959 by a registered sale deed. It was claimed that as the part of the land has already been transferred to the applicants, they were necessary parties to the suit and be impleaded as party. 5. The application was opposed by the plaintiff and the averments made in the application were denied. It was submitted that the said applicants never came in possession of the land in question and when plaintiff's elder brothers came to know of the said document, they filed proceedings in the year 1969 before the Assistant Colonization Commissioner under Section 92A of the Act, which suit was decreed on 19.6.1971. It was submitted that the said applicants never came in possession of the land in question and when plaintiff's elder brothers came to know of the said document, they filed proceedings in the year 1969 before the Assistant Colonization Commissioner under Section 92A of the Act, which suit was decreed on 19.6.1971. Based on the said averments, it was submitted that the applicant was not a necessary party. 6. The S.D.O. by his order dated 22.6.1998, came to the conclusion that the petitioner Devki was not a necessary party and rejected the application. Whereafter, the suit was decreed by the S.D.O. on 27.7.1998 wherein, based on the evidence, oral and documentary available on record, the decree as prayed for was granted. 7. The petitioner, thereafter, approached the Board of Revenue under Section 221 of the Act alleging that the part of the property in question has been transferred to the petitioner and Banarsi Das by registered sale deed dated 24.11.1959, they were not impleaded as party to the suit; the suit was of collusive nature; when application was filed for impleadment as party to the said suit, the same was rejected on 22.6.1998 against which the petitioner filed revision petition before the Board of Revenue in which stay was granted on 22.7.1998 and despite grant of stay, the suit was decreed on 27.7.1998 and, therefore, the decree passed by the S.D.O. was liable to be quashed and set aside. 8. On behalf of the respondents, preliminary objection regarding maintainability of the proceedings under Section 221 of the Act was raised and after hearing the parties, the Board came to the conclusion that merely based on the allegation that the decree is collusive, the powers under Section 221 of the Act cannot be exercised and observing that the petitioner Devki had remedy of first and second appeal, she is free to take proceedings in accordance with the said provisions, accepted the preliminary objection and dismissed the petition filed by the petitioner. 9. 9. It is submitted by learned counsel for the petitioner that after rejection of the petitioner's application by the S.D.O. under Order I Rule 10 CPC for being impleaded as party to the suit, the order was challenged before the Board of Revenue, stay was granted by the Board, however, despite communication of the stay the suit was decreed, which necessarily means that proceedings were continued in violation of the directions of the Board of Revenue as the S.D.O. did not follow the interim order granted by the Board of Revenue and, therefore, it was a fit case where the Board should have exercised its powers under Section 221 of the Act, which powers are of superintendence conferred under the provisions of the Act. 10. Further submissions were made that the suit on its face was collusive and, therefore, even otherwise, once the facts came before the Board of Revenue on passing of the decree in a collusive suit, the powers under Section 221 of the Act ought to have been exercised by the Board. 11. Submissions were also made that the rejection of the application under Order I Rule 10 CPC by the S.D.O. inter-alia on account of the order passed by the Assistant Commissioner, Colonization holding the sale deed executed in favour of the petitioner as void, was of no consequence as the Assistant Commissioner has no power under the Act to declare the transfer deed as void and in those circumstances, the failure of the Board of Revenue to exercise its powers under Section 221 of the Act is writ large and order, therefore, deserves to be quashed and set aside. 12. Reliance was placed on Surendra Pal Singh vs. Board of Revenue and Others, 1993 R.R.D. 598. 13. Learned counsel for the respondent no. 4-Dalip Singh vehemently opposed the submissions made by learned counsel for the petitioner. 14. 12. Reliance was placed on Surendra Pal Singh vs. Board of Revenue and Others, 1993 R.R.D. 598. 13. Learned counsel for the respondent no. 4-Dalip Singh vehemently opposed the submissions made by learned counsel for the petitioner. 14. It was submitted that the sale deed is claimed to have been executed in the year 1959 and till the time suit was filed by the plaintiff before the S.D.O. seeking partition of the suit property, the revenue entries continued to stand in the name of father of the plaintiff, which necessarily means that the so called document which was allegedly registered by the Power of Attorney holder of father of plaintiff was never acted upon and the applicant Devki, for over 39 years, neither got the land mutated in her name nor came in possession of the land in question. 15. Further submissions were made that the sale deed in favour of Devki and Banarsi Das has already been set aside by the Assistant Commissioner, Colonization way back on 20.7.1974 and the transfers were declared as void, which decree was never challenged by the petitioner, though it is also submitted that as the petitioner did not appear before the Assistant Commissioner the decree was passed ex-parte. 16. Further submissions were made that there is no material available on record to support the contention made by the petitioner that the so called interim order passed by the Board of Revenue regarding the stay of suit proceedings was ever brought to the notice of S.D.O. before the decree was passed on 27.7.1998 and, therefore, the allegations in this regard are absolutely baseless. It was submitted that the allegations about the suit being collusive has no substance inasmuch as the same was filed by the respondent-plaintiff seeking partition of the land in question and amendment in the mutation entries and consequently the allegations about collusion are baseless. 17. Further submissions were made that law regarding exercise of jurisdiction under Section 221 of the Act is well settled as laid down by Supreme Court in Devi Singh vs. Board of Revenue for Rajasthan and Others, (1994) 1 SCC 215 , which power of the Board of Revenue is not a substitute for filing regular appeals/revision under the provisions of the Act and, therefore, the order impugned does not call for any interference. 18. 18. Besides the judgment in the case of Devi Singh (supra) reliance was also placed on Surendra Singh and Others vs. Kisturi and Others, 2009 (2) RRT 1094. 19. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 20. The petitioner approached the Board of Revenue under Section 221 of the Act against the decree dated 27.7.1998 essentially on two grounds (i) that despite stay order granted by Board of Revenue on a revision petition filed by the petitioner, the S.D.O. passed the decree and (ii) that the suit was collusive. 21. A bare look at the writ petition filed by the petitioner indicates that the petitioner has chosen not to make any averment in the body of petition regarding the fact of passing of stay order by the Board of Revenue and that the fact that order was communicated to the S.D.O. the nature of stay order granted and whether any application was made to the S.D.O. even after the decree was passed on 27.7.1998 based on the passing of interim order. A ground though has been raised in the writ petition that the revision petition was admitted on 22.7.1998 and stay order was passed and communicated to the trial court i.e. S.D.O. on 25.7.1998, however, no material whatsoever is available on record either regarding nature of stay order granted and as to by what manner the interim order was communicated to the S.D.O. A bare look at the order sheet of 25.7.1998 produced by the respondent as Annex. R-6/1 indicates that there is no reference whatsoever in the said order sheet regarding production of any stay order on which date the matter was finally heard and was posted for judgment on 27.7.1998. The said allegations made, if had any substance, the same were required to be fortified by the petitioner by production of sufficient material before this Court, however, besides there being very sketchy submissions, that also as part of the ground in the memo of writ petition, no material whatsoever has been produced to support the said allegation and, therefore, for lack of any material, allegation made in this regard, on its face, has no substance. 22. 22. Coming to the other allegation regarding the decree being collusive is concerned, despite repeatedly putting query to the counsel as to whether the allegation of a decree being collusive cannot be examined by the appellate forum i.e. Revenue Appellate Authority on first appeal and by Board of Revenue on second appeal, the counsel for the petitioner insisted that the proceedings under Section 221 of the Act were not barred. Even after passing of the decree on 27.7.1998, the petitioner, after losing limitation under the provisions of Section 223 of the Act, which appeal could very well be filed by the petitioner after seeking leave to file appeal as she was not a party to the suit and application filed by her for impleadment had already been rejected, chose to file the proceedings under Section 221 of the Act after passage of over 08 months before the Board of Revenue, the allegation of so called collusion between the plaintiff and defendants in a suit for partition could very well be examined by the appellate forum. 23. In the circumstances, what needs to be examined is whether the action of the petitioner in filing the petition under Section 221 of the Act and decision of the Board not to exercise the jurisdiction was justified. 24. The provisions of Section 221 of the Act read as under: "221. Subordination of revenue courts- The general superintendence and control over all revenue courts shall be vested in and all such courts shall be subordinate to the Board and subject to such superintendence, control and subordination:- (a) xxx xxx xxx (b) all Additional Collectors, Sub-Divisional Officers, Assistant Collectors and Tehsildars in a district shall be subordinate to the Collector thereof. (c) All Assistant Collectors, Tehsildars and Naib-Tehsildars in a sub-division shall be subordinate to the Sub-Divisional Officer thereof. (d) All Additional Tehsildars and Naib-Tehsildars in a Tehsil shall be subordinate to the Tehsildar thereof." 25. The provisions on plain reading indicate general superintendence and control over all revenue courts being vested in and that all such courts shall be subordinate to the Board of Revenue. (d) All Additional Tehsildars and Naib-Tehsildars in a Tehsil shall be subordinate to the Tehsildar thereof." 25. The provisions on plain reading indicate general superintendence and control over all revenue courts being vested in and that all such courts shall be subordinate to the Board of Revenue. The power of superintendence, as indicated in the above section, whether includes within its sweep the power to set aside the orders passed by the courts in judicial capacity, though has been subject matter of conflicting judgments, the law is well settled that the said power of superintendence is required to be exercised sparingly and in exceptional circumstances and the power of superintendence is not a substitute for filing appeal and/or revision as available under the provisions of the Act. 26. The Hon'ble Supreme Court in the case of Devi Singh (supra) laid down as under:- "(4) Having heard learned counsel for the appellants, since he alone is here to assist us, and no one is appearing on behalf of State of Rajasthan, we view it with surprise the approach of the Board of Revenue. Section 221 of the Rajasthan Tenancy Act provides vesting a general power of superintendence and control in the Board over all revenue courts and all such courts as are subordinate thereto. Besides that provision there are provisions beginning with Section 222 up to Section 228 which provide for appeals and the manner in which they need be presented in the fora given therein and the Board of Revenue is one such. Section 229, inter-alia, thereafter provides that subject to the provisions of the Code of Civil Procedure, 1908 the Board of its own motion or on the application of a party to a suit or proceeding may review and may rescind, alter or confirm any decree or order made by itself or by any of its members. In the face of these provisions it is not understandable how could the Board exercise power of general superintendence under Section 221 of the Act for it had beforehand in exercise of its appellate powers confirmed the decree of the trial court i.e. of the Assistant Collector's Court. By the doctrine of merger, the Judgment and decree of the first court got merged in that of the first appellate court and sequelly on second appeal with that of the Board of Revenue. By the doctrine of merger, the Judgment and decree of the first court got merged in that of the first appellate court and sequelly on second appeal with that of the Board of Revenue. The order, if at all, was reviewable, subject to its falling within the scope of Section 229 of the Rajasthan Tenancy Act. It is worth noting that two sets of appeals, one after the other, had been preferred by the State of Rajasthan and on their dismissal were not put to further challenge by it in the High court. The State seems to have rested content with the result. Later when some other elements chose to intervene and sought stalling of these orders and their effort in that regard was negatived by the Board of Revenue, it misapplied Section 221 in setting aside a confirmed order of the trial court. That provision being not applicable Section 229 did not come in the picture it having been not invoked. It is patently clear in these circumstances that the Board of Revenue assumed jurisdiction which it did not have to upset its own final judgment, arrived may be wrong on facts, in the manner it has done. Sequelly, the High Court too was in error in approving the same when the jurisdictional error was glaring on the face of it." 27. The judgment supra clearly takes into consideration the availability of remedies to a party under the provisions of Section 229 of the Act and it was noticed that instead of invoking powers under Section 229 of the Act, exercise of powers under Section 221 of the Act was not justified. 28. So far as the reliance placed on the judgment in the case of Surendra Pal Singh (supra), another judgment of Supreme Court is concerned, in the said judgment also the Hon'ble Supreme Court approved the observations made in Kana and Others vs. Board of Revenue, ILR (1955) 5 (Raj.) 55, which pertained to the exercise of power by the Board of Revenue under the Rajasthan Board of Revenue Ordinance, 1949 having pari materia provisions, that the powers would generally not be exercised where a party had remedy of revision and appeal and did not avail of it and power may be exercised sparingly in extraordinary cases where interest of justice requires that the Board should exercise the power. Further, the Hon'ble Supreme Court also observed that if the subordinate courts disregards any specific provision of law and does something illegal it is open to the Board of Revenue to interfere and set the matter right. 29. In the present case, as already observed, the remedy of appeal has not been availed and further no violation of any specific provision of law has been alleged/brought to the notice except for terming the decree as collusive, which cannot be said to be violation of any provision of law. 30. In view of the above circumstances and the discussion, it cannot be said that the Board of Revenue committed any error in refusing to exercise power under Section 221 of the Act. 31. The other submissions made by learned counsel for the parties regarding merit of the dispute i.e. the validity of sale deed, decree passed by S.D.O. and other submissions made in this regard, do not call for any determination by this Court. 32. Consequently, there is no substance in the writ petition and the same is, therefore, dismissed.