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2022 DIGILAW 1811 (RAJ)

Rambabu Sharma v. State

2022-05-27

MAHENDAR KUMAR GOYAL

body2022
JUDGMENT 1. This writ petition has been filed by the petitioners/plaintiffs against the judgment dated 18.10.2019 passed by the Board of Revenue Rajasthan, Ajmer (for brevity, "BoR") whereby, the appeal no.TA/18/449/Jaipur preferred by the respondent no.2- Jaipur Development Authority, against the judgment dated 29.05.2017 passed by the Revenue Appellate Authority (for brevity, "RAA"), Jaipur dismissing the appeal no.277/2016 against the judgment dated 23.11.2015 passed by the Court of Assistant Collector, Jaipur City-I in Revenue Suit no.182/2010 decreeing the suit of the petitioners/plaintiffs for declaration and permanent injunction, has been allowed as also against the judgment dated 23.02.2022 passed by the BoR dismissing the Review Petition no.TA/2019/6771/Jaipur filed by the petitioners. 2. The facts in brief are that the petitioners/plaintiffs filed a suit for declaration and permanent injunction qua the land of Khasra no.1/84 measuring 10 Bigha Village Dharampura Tehsil and District Jaipur on the premise that their late father Kanhaiya Lal was in possession of the land and on his application, the Sub- Tehsildar, Kalwar, vide its orders dated 16.03.1983, 10.10.1983 and 1.10.1984, entered him as "Shikmi Kashtkar" of the aforesaid land and its subsequent mutation in favour of Jaipur Development Authority was bad in law. The suit was decreed by the Court of Assistant Collector vide its judgment dated 23.11.2015 and the appeal preferred thereagainst by the respondent no.2, the Jaipur Development Authority came to be dismissed by the RAA vide its judgment dated 29.05.2017 on the ground of limitation. The second appeal preferred by the respondent no.2 against dismissal of their appeal, has been allowed by the BoR vide its judgment dated 18.10.2019 and the review petition filed thereagainst by the petitioner has also been dismissed vide order dated 23.02.2022. 3. Learned counsel for the petitioners made two-fold submissions while assailing the legality and validity of the judgment dated 18.10.2019. Firstly, he submitted that the BoR erred in allowing the second appeal preferred by the respondent no.2 without setting aside the judgment passed by the RAA dismissing the appeal on the ground of limitation. Learned counsel submitted that the BoR has only, in its para 12 of the judgment, condoned the delay in preferring the second appeal but, nowhere recorded a finding that dismissal of the first appeal by the RAA on limitation was bad in law. 4. Learned counsel submitted that the BoR has only, in its para 12 of the judgment, condoned the delay in preferring the second appeal but, nowhere recorded a finding that dismissal of the first appeal by the RAA on limitation was bad in law. 4. Second limb of contention of the learned counsel for the petitioners is that findings of the learned BoR that the judgment and decree passed by the learned trial Court are not sustainable in the eye of law being based on photocopies of the orders dated 16.03.1983, 10.10.1983 and 1.10.1984 which were inadmissible in evidence, are perverse in as much as it did not appreciate that vide its order dated 24.03.2015, the learned trial Court has allowed the application filed by the petitioners under Section 65 of the Indian Evidence Act, 1872 qua these documents. 5. With regard to findings of the BoR in its judgment holding that the orders passed by the Sub-Tehsildar, Kalwar were without jurisdiction, learned counsel, relying upon a judgment of Hon'ble Apex Court of India in case of Anita International v. Tungabadra Sugar Works Mazdoor Sangh: (2016) 9 SCC 44 , submitted that unless the orders were declared void by a competent Court, they were valid. 6. He, therefore, prayed that the writ petition be allowed and the impugned order dated 18.10.2019 as also the judgment dated 23.02.2022 passed by BoR be quashed and set aside. 7. Heard. Considered. 8. Contention of the learned counsel for the petitioners that the BoR has allowed the second appeal preferred by respondent no.2 without meeting with the reasoning assigned by RAA dismissing the appeal on the ground of limitation, does not merit acceptance. In para 15 of the judgment dated 18.10.2019, the BoR has observed that the RAA was obliged to take into consideration merits of the case and ought not to have dismissed the first appeal only on ground of limitation. Further, in para 38 a categorical finding has been recorded by the BoR that dismissal of the first appeal by the RAA only on the ground of limitation without taking into consideration the merits of the case, could not be justified and the judgment deserved to be set aside. Therefore, the BoR has set aside the judgment passed by the RAA in unequivocal terms assigning cogent reasons. 9. Therefore, the BoR has set aside the judgment passed by the RAA in unequivocal terms assigning cogent reasons. 9. Although, it is true that the learned trial Court has, vide its order dated 24.03.2015, permitted the petitioners to lead secondary evidence qua the three orders, i.e., 16.03.1983, 10.10.1983 and 1.10.1984 passed by the Sub-Tehsildar, Kalwar and findings of the BoR to this extent are perverse but, the judgment cannot be set aside on this account alone in as much as the BoR has also recorded a categorical finding that the father of the petitioners could not have been reckoned as "Shikmi Kashtkar" by the Sub-Tehsildar as this power vests with the Assistant Collector/Sub Divisional Officer only. It has also been observed by the BoR that the learned trial Court did not record a finding as to under what authority and under which provision of law, father of the petitioners was declared as "Shikmi Kashtkar" by the Sub- Tehsildar. Learned counsel for the petitioners did not dispute merits of the aforesaid observations made by the BoR with regard to incompetence of the Sub-Tehsildar, Kalwar in recording their father as "Shikmi Kashtkar", rather, he relied upon a judgment of Hon'ble Apex Court of India in case of Anita International (supra) to canvass that even if the orders were void, in absence of any declaration so made by a competent Court, the BoR could not have rejected the same, a contention which is wholly misconceived and misplaced. The Hon'ble Apex Court of India, relying upon its earlier judgment in case of Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group- (2011) 3 SCC 363 held that it is not open for either of the parties to a lis or to any third party to determine by their own that an order passed by the competent Court is valid or void. Herein, indisputably, the orders which have been held by the BoR to be null and non est having been passed without authority, have not been passed by any competent Court. 10. Herein, indisputably, the orders which have been held by the BoR to be null and non est having been passed without authority, have not been passed by any competent Court. 10. Since, the edifice of the petitioners' case has been the orders dated 16.03.1983, 10.10.1983 and 1.10.1984 passed by Sub- Tehsildar, Kalwar whereby, petitioners' father was recorded as "Shikmi Kashtkar" qua the land in question and the same have been found to be non est, in the considered opinion of this Court, the BoR did not err in allowing the appeal preferred by the respondent no.2. 11. The upshot of the aforesaid discussion is that the writ petition is devoid of merit and is dismissed accordingly.