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2022 DIGILAW 2131 (RAJ)

Parmeshwar v. Naurang

2022-07-27

MAHENDAR KUMAR GOYAL

body2022
ORDER 1. This writ petition has been filed by the petitioner/applicant assailing the legality and validity of the judgment dated 17.02.2020 passed by the Board of Revenue Rajasthan, Ajmer (for brevity, 'the BoR') in Special Appeal/LR/2019/2504/Sikar whereby, the special appeal filed against the judgment dated 14.05.2019 passed by the BoR in Appeal/LR/6430/2013/Sikar affirming the judgement dated 28.10.2013 passed by the Court of Additional Divisonal Commissioner, Jaipur in Appeal No.71/2012 reversing the judgement dated 29.06.2012 passed by the Sub- divisional Officer, Sikar allowing the application filed by the petitioner/applicant under Section 136 of Rajasthan Land Revenue Act, 1956 (for brevity, 'the Act of 1956'), has been dismissed. 2. The facts in brief relevant for decision of the writ petition are that the petitioner filed an application under Section 136 of the Act of 1956 stating therein that land measuring 2 bigha 17 biswa (0.72 hect.) of the erstwhile Khasra No.342/2, Village Radhakishanpura, Tehsil & District Sikar was recorded in his khatedari; however, in the new revenue record, while carving out new Khasra No.192/1056, the area has been reduced to 0.35 hect. The application was allowed by the SDO, Sikar vide its order dated 29.06.2012 on the basis of report of Tehsildar dated 28.06.2012. An appeal preferred thereagainst by the respondents/non-applicants was allowed by the Court of Additional Divisional Commissioner, Jaipur vide its judgement dated 28.10.2013 which was unsuccessfully challenged by the petitioner by way of an appeal which came to be dismissed by the BoR vide its judgement dated 14.05.2019 and a special appeal preferred thereagainst has also been dismissed by Division Bench of the BoR vide its judgement dated 17.02.2020. 3. Learned counsel for the petitioner, drawing attention of this Court towards the judgement dated 24.04.2008 passed by the Court of Sub-divisional Officer, Sikar in Revenue Suit No.80/2005 filed by him, contended that no findings on the merits of the case were recorded therein as to his rights qua the subject land which necessitated filing of an application under Section 136 of the Act of 1956. He submitted that since, the error, whereby, area under his khatedari was reduced while carving out a new Khasra No.192/1056, was clerical in nature, the appellate authority erred in setting aside the order dated 29.06.2012 passed by the SDO. He submitted that since, the error, whereby, area under his khatedari was reduced while carving out a new Khasra No.192/1056, was clerical in nature, the appellate authority erred in setting aside the order dated 29.06.2012 passed by the SDO. Learned counsel submitted that the BoR seriously erred in recording a finding that since the dispute was beyond the scope of Section 136, the SDO committed illegality in entertaining the application. Referring to the provisions of Section 136 of the Act of 1956, learned counsel submitted that even assuming that error was not clerical in nature, if the error was noticed by a Revenue Officer in any record of rights during the course of his inspection, the same could have been corrected after serving a show cause notice to the parties as provided under proviso to the section. He, therefore, prayed that the writ petition be allowed, the judgement impugned be quashed and set aside and the matter may be remanded back to the SDO for decision afresh under Section 136. He, in support of his submission, relied upon a judgement of this Court in case of Poosa Ram Vs. The Board of Revenue & Ors.; 1995 (2) RLW 561. 4. Heard. Considered. 5. The SDO has passed the order dated 29.06.2012 relying upon Tehsildar's report dated 28.06.2012. A perusal of the Tehsildar's report placed on record as Annexure 4 reveals that shortfall in land under khatedari of the petitioner was recommended to be made up by reducing the corresponding land under the khatedari of the respondents herein. In these circumstances, in the considered opinion of this Court, the learned appellate authority did not err in setting aside the order dated 29.06.2012 passed by the SDO whereby, land under khatedari of the respondents was directed to be recorded in the name of the petitioner without giving them an opportunity of hearing. 6. Contention of the learned counsel for the petitioner that in such case, it was obligatory upon the appellate authority to have remanded the matter back to the SDO under Section 136 of the Act of 1956, does not merit acceptance in view of the statutory provisions contained therein. 7. 6. Contention of the learned counsel for the petitioner that in such case, it was obligatory upon the appellate authority to have remanded the matter back to the SDO under Section 136 of the Act of 1956, does not merit acceptance in view of the statutory provisions contained therein. 7. Section 136 reads as under:- '[Correction of errors - The land Records Officer may, at any time, correct or cause to be corrected in the prescribed manner any clerical errors and any errors which the parties interested admit to have been made in the record of rights or register, or which a Revenue Officer may notice during the course of his inspection in any Register: Provided that when any error is noticed by a Revenue Officer in any record of rights during the course of his inspection, no error shall be corrected unless a notice to show cause has been given to the parties.]' 8. For an application under Section 136, any of the following requirements has to be satisfied:- '(i) the error is clerical in nature; (ii) errors which the parties interested admit to have been made in the record of rights or registered; (iii) error, which a Revenue Officer may notice during the course of his inspection.' 10. Indisputably, the controversy in hand does not satisfy any of the aforesaid contingencies. Rather, as is apparent from the material on record, it is a contested claim by the rival parties. In view thereof, the appellate authority did not err in not remanding the matter back to the SDO to decide afresh under Section 136 of the Act of 1956, the proceedings under which are summary in nature. 11. A Division Bench of this Court has, in case of Kesar Kanwar & Ors. Vs. State of Rajasthan & Ors.; D.B. Civil Special Appeal No.948/1999 decided on 02.04.2002, held as under:- '20. It is not in dispute before us that in the proceedings initiated under Section 91 and 136 of the Rajasthan Land Revenue Act for eviction and making correction in the land records are both summary in nature and rights of the parties can be decided where there is any bonafide dispute about the sale.' 12. Contention of the learned counsel for the petitioner that the application is maintainable under proviso to Section 136 is wholly misconceived and misplaced. Contention of the learned counsel for the petitioner that the application is maintainable under proviso to Section 136 is wholly misconceived and misplaced. The proviso applies only when a Revenue Officer notices during the course of his inspection any error which was not corrected and to correct it after service of a show cause notice to the parties. In the present case, no such situation is obtaining; rather, the petitioner has filed an application under Section 136 seeking correction in the revenue record. 13. The judgement relied upon by the learned counsel for the petitioner in case of Poosa Ram (supra) is of no help to him inasmuch as the specific issue which arose for consideration of the Division Bench, as is apparent from Para 2 of the judgement, was as to whether correction of the entry in the record of rights/annual register could be made by the Land Record Officer under Section 136 of the Act of 1956 after the survey or settlement operations are over. Undeniably, in the present case, no such issue is involved. Rather, a co-ordinate Bench of this Court has, in case of Sanga Builders Private Ltd. & Ors. Vs. Jaipur Development Authority & Ors.: S.B. Civil Writ Petition No.14026/2012 decided on 10.03.2014 held as under:- 'The first ground to accept the appeal preferred by the JDA is in reference to section 136 of the Rajasthan Land Revenue Act. It is true that section 136 is applicable for correction of clerical error or any error which parties interested admit to have been made in the record of rights. It is no doubt that true controversy herein cannot be said to be correction of error simplicitor, however, it is settled law that mere making reference of incorrect provision, the court should not frustrate the claim as otherwise made out from the pleadings.' 14. The upshot of the aforesaid discussion is that the writ petition is devoid of merit and is dismissed accordingly.