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2017 DIGILAW 1896 (RAJ)

Siyaram v. Ratan

2017-08-24

M.N.BHANDARI

body2017
JUDGMENT M.N. Bhandari, J. - By this writ petition, a challenge is made to the order dated 16.6.2017, whereby, order passed by the Revenue Appellate Authority was reversed while maintaining order passed by the Sub Divisional Officer. The petitioner preferred a suit based on unregistered agreement to sale and also adverse possession of 30 years. The suit was dismissed. The petitioner preferred an appeal which was allowed by the Revenue Appellate Authority, however, on further appeal by the non-petitioners, order of the RAA was reversed. 2. Learned counsel submits that petitioner entered into possession of the land based on unregistered agreement to sale. The possession was existing for last 30 years before filing of the suit. Learned SDO failed to consider that declaration was based on the possession, that too, with knowledge of the other party who had executed agreement to sale. In view of the above, the suit should have been decreed. The aforesaid aspect was considered by the RAA which should not have been reversed by the Board of Revenue. The prayer is accordingly made to set aside the order passed by the Board of Revenue as the petitioner acquired right in the property by adverse possession of 30 years. 3. I have considered submissions of the learned counsel and perused the record. 4. The petitioner preferred a suit for declaration and permanent injunction based on unregistered agreement to sale though it was to show possession for last 30 years thus based on the possession adverse to the title of the owner. A suit claiming adverse possession is not maintainable because it is considered to be a defence in view of the judgment of this court in the case of "Shriya vs. Gram Panchayat, Ranoli, Tehsil, Sikarai & ors", SB Civil Writ Petition No. 3650/1999, decided on 10.7.2017. Therein, judgment of the Apex Court has been relied. 5. In view of the above, suit to claim right based on possession adverse to the title of the owner was not maintainable. The court below, however, considered case of the petitioner and decided it on merit finding that even the document referred by the petitioner is unregistered one and otherwise only an agreement to sale. An agreement to sale does not create a right unless the sale deed is executed. The court below, however, considered case of the petitioner and decided it on merit finding that even the document referred by the petitioner is unregistered one and otherwise only an agreement to sale. An agreement to sale does not create a right unless the sale deed is executed. The suit for performance can be filed in the civil court but no suit for performance was filed, rather, right has been claimed based on unregistered document. The court below thus rightly dismissed the suit even in reference to the document. So far as plea of possession in reference to the document is concerned, it has already been clarified that a suit cannot be filed based on adverse possession as it is considered to be a defence. It can be claimed when a suit is preferred against the possessee who is having permissive possession adverse to the title of the owner. 6. Another issue is as to whether a claim for adverse possession can be made under the Rajasthan Tenancy Act, 1955. The issue aforesaid was considered and decide by this court in the case of "Chenram & ors vs. Board of Revenue & ors", SB Civil Writ Petition No. 13043/2015, decided on 18.1.2016 by this court at Principal Seat, Jodhpur (reported as 2016 RBJ 340). Relevant paras of the judgment are quoted hereunder for ready reference - "6. The learned counsel for the petitioners submits that Revenue Appellate Authority allowed the appeal filed by the appellants on the ground of adverse possession, but the learned Board of Revenue quashed and set aside the finding of adverse possession on the ground that suit was not filed upon the ground of adverse possession and held that Revenue Appellate Authority has committed a grave error while allowing the appeal on the ground of adverse possession in view of the judgment reported in 1981 RRD 549 and reported in 1985 RRD 648 in which it has been held that once permissive possession has been pleaded then no decree can be passed on the basis of adverse possession. It is also observed that in 2011 RRD 508 the 4 Full Bench of the Board of Revenue held that no Khatedari rights can be awarded on the basis of adverse possession. It is also observed that in 2011 RRD 508 the 4 Full Bench of the Board of Revenue held that no Khatedari rights can be awarded on the basis of adverse possession. The said proposition has further been reiterated by the Hon''ble Larger Bench of the Rajasthan High Court vide judgment dated 15.7.2015 I the case of Tara vs. State of Rajasthan. 7. After perusing the finding given by the learned Board of Revenue and upon the fact that land in question was purchased by respondent no.4 by registered sale deed dated 5.4.1962 and on same day possession was taken by the defendant no error has been committed by the learned Board of Revenue to set aside the judgment of the learned Revenue Appellate Authority-cum-Settlement Officer dated 19.7.2001. Therefore, the instant writ petition is hereby dismissed." 7. In view of the judgment aforesaid, if the sole basis to claim khatedari is adverse possession of 30 years then even if it was with knowledge of the title holder, claim of adverse to the rights of the title holder cannot be granted for khatedari rights in view of the judgment in the case of Chenram (supra) thus for the reason aforesaid, I do not find any ground to cause interference in the impugned order. 8. A reference of section 63(4) of the Act of 1955 has been given to claim right. The provision aforesaid is not applicable to the case in hand. The interest of the tenant in his holding or part thereof shall be extinguished when he is not in possession or his right is taken by limitation. I find that a suit cannot be decreed only for the reason that other party has extinguished right to claim possession or khatedari right. The issue can be determined when a suit is preferred by the person whose rights are already effected by section 63(4) of the Act of 1955. It cannot be taken as a basis to make a claim of khatedari right by other party. The consequence arising out of section 63 (4) can be only when such a claim is made by a person whose right has been extinguished and not in the hands of the person who is claiming khatedari right based on his own possession for last 30 years. In view of the above also, I do not find any ground to cause interference in the impugned order. In view of the above also, I do not find any ground to cause interference in the impugned order. Hence, writ petition is dismissed.