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2023 DIGILAW 1717 (RAJ)

Babu Lal v. Lrs of Mitha Ram

2023-09-11

NUPUR BHATI

body2023
ORDER : (Nupur Bhati, J.) The present writ petition has been filed under Articles 226 and 227 of the Constitution of India with the following prayers:- "1. The impugned orders i.e. order dated 6.2.2020 (Annexure-8) of Board of Revenue, order dated 7.10.2003 (Annexure-7) of Revenue Appellate Authority, Pali and order dated 11.2.2003 (Annexure-3) of the Assistant Collector (SDO), Sirohi may be quashed and set aside and they may be declared to be illegal and contrary to law and facts and may be given effect as if they were never passed. 2. That the suit filed by the plaintiffs-respondent No.1 to 7 may also be dismissed with costs. 3. That the petitioners may be allowed to continue in possession of the land in question. 4. Any other relief which this Hon'ble Court deems fit may be granted in favour of the petitioner. 5. Writ petition may be allowed with costs." 2. The brief facts of the case are that plaintiffs-respondent Nos.1 to 7 filed a suit under Section 54 of the Rajasthan Tenancy Act, 1955 (for short, 'the Act of 1955') for division stating therein that the respondents-plaintiffs and petitioners-defendants were joint khatedars of the land measuring 28 bighas 3 biswas of Khasra No.56 of village Devli, Patwar Circle Badgaon, Tehsil Sheoganj and plaintiff-respondent No.1 has got 1/4th share and plaintiffs-respondent Nos.2 to 6 have 1/4th share and the defendants-petitioners are having 1/4th share. It was also stated in the plaint that the plaintiffs-respondent Nos.1 to 7 and petitioners-defendants dug a well and all the khatedars used to draw water from the well as per their turn. There was also a joint kotdi under their joint possession. The petitioners-defendants started obstructing in the peaceful possession of the plaintiffs-respondents Nos.1 to 7 and also started construction over the site and thus, it became difficult to continue jointly. 3. The petitioner-defendants filed their written statement and submitted that they are the sole khatedars and owner of the land and the well was in fact got dug by one late Shri. Jora Ram after availing loan from Punjab National Bank, which was repaid by them. When the water fell short, the boring was done by them for which expenses were borne by them. It was also submitted that the said Kotdi was constructed by late Shri. Jora Ram and the plaintiffs-respondents Nos.1 to 7 were never in possession. 4. When the water fell short, the boring was done by them for which expenses were borne by them. It was also submitted that the said Kotdi was constructed by late Shri. Jora Ram and the plaintiffs-respondents Nos.1 to 7 were never in possession. 4. The petitioners-defendants also submitted a counter claim stating therein that for the last 50 years late Shri. Jora Ram and after his death, petitioners-defendants are in possession of the land and they have been cultivating the land since them. It was also stated that Virda Ram, Meetha Ram and Sankla Ram (brothers of defendant-petitioner No.1) got their names included as co-tenant and after their death the plaintiffs-respondents Nos.1 to 7 were never in possession. It was also stated that the suit was barred by limitation as per the provisions of Section 63(1)(ii) read with Section 214 of the Act of 1955 and Section 27 of the Limitation Act. 5. It was also stated that the suit was barred by limitation as per the provisions of Section 63(1)(ii) read with Section 214 of the Act of 1955 and Section 27 of the Limitation Act. 5. The Assistant Collector (SDO), Sirohi (for short, 'the SDO'), based on the pleadings of the parties, framed the following issues:- ^^¼1½ vk;k oknhx.k dh ekStk nsoyh iVokj {ks= cMxkao ds [kljk ucaj 56 jdck 24 ch?kk 3 fcLok [kkrsnkjh d`f"k Hkwfe vk;h gS ftlls oknhx.k dk 1@4 fgLlk 2 ls 6 dk 1@4 o 7 dk 1@4 fgLls ds [kkrsnkj d`"kd gSA ¼2½ ;g oknhx.k izfroknhx.k ls jktLo jsdMZ esa ntZ fgLls vuqlkj d`f"k Hkwfe dk cVaokM djus dk vf/kdkj gSA ¼3½ ;g fd oknhx.k ,oa izfroknhx.k ds fgLls vuqlkj la;qDr dqavk dh fढph cU/kokus dk vf/kdkjh gSA ¼4½ vk;k izfroknhx.k d`f"k Hkwfe dk [kkrsnkjh ?kks"k.kk izkIr djus dk vf/kdkjh gSA ¼5½ vk;k izfroknhx.k dk Lo;a vius [kpZ ls dqavk ca/kokus o oknhx.k dqa, ls fढph izkIr djus ds vf/kdkjh ugha gSA^^ The SDO, vide order dated 11.02.2003 (Annex.3), decided issues Nos.1, 2 and 4 in favour of the plaintiffs-respondents Nos.1 to 7 whereas issues Nos.3 and 5 were decided in favour of the petitioners-defendants and decreed the suit as under:- ^^;g vkns'k fn;s tkrs gS fd fookfnr vkjkth ekStk nsoyh iVokj lfdZy cMxkao rglhy f'koxat esa fLFkr d`f"k vkjkth [k0u0 56 jdck 28 ch?kk 3 fcLok fdLe&c&1 esa oknh la[;k 1 dks 1@4 o oknh la0 2 ls 6 dls 1@4 o oknh la[;k 7 dks 1@4 ,oa izfroknhx.k dks 1@4 fg0 dk [kkrsnkj ?kksf"kr fd;k tkrk gSA o mlh vuqlkj caVokM ds vkns'k fn;s tkrs gSA dq, ls ikuh dh ढhaph cuokus laca/kh rudh la[;k 3 o 5 dk fu.kZ; ykxq jgsxkA rglhynkj f'koxat dks caVokM izLrko e; uD'kk Vªsl o i+{kdkjksa dks lgefr i= ds lkFk izsf"kr djus ds funsZ'k fn;s tkrs gSA i{kdkjku viuk&2 [kpkZ ogu djsaA^^ 6. Being aggrieved by the order dated 11.02.2003 (Annex.3), the petitioners-defendants preferred an appeal before the Revenue Appellate Authority (for short, 'the RAA') along with stay application. The RAA granted interim order dated 04.03.2003 (Annex.5) for maintaining status quo. The stay order dated 04.03.2003 (Annex.5) was later on modified vide order dated 08.04.2003 and the effect and operation of the order dated 11.02.2003 (Annex.6) was stayed till further orders. However, the appeal preferred by the petitioners-defendants was dismissed vide order dated 07.10.2003 (Annex.7). 7. The RAA granted interim order dated 04.03.2003 (Annex.5) for maintaining status quo. The stay order dated 04.03.2003 (Annex.5) was later on modified vide order dated 08.04.2003 and the effect and operation of the order dated 11.02.2003 (Annex.6) was stayed till further orders. However, the appeal preferred by the petitioners-defendants was dismissed vide order dated 07.10.2003 (Annex.7). 7. The petitioners-defendants thereafter preferred second appeal before the Board of Revenue, which was also dismissed vide order dated 06.02.2020 (Annex.8). Hence, the petitioners have preferred the present writ petition. 8. Learned counsel for the petitioners submits that the RAA and the Board of Revenue have not appreciated the facts and circumstances of the case and have passed the impugned orders in a mechanical manner, without application of mind and without assigning any reasons. The plaintiffs-respondents Nos.1 to 7 failed to prove that the land was ancestral one or that it was belonging to late Shri. Harta Ram so as to be divided by meats and bounds. The cultivatory possession has been proved by cogent documentary evidence. 9. Learned counsel for the petitioners further submits that the RAA and the Board of Revenue have not given any finding with regard to the right, title or interest of the plaintiffs-respondents Nos.1 to 7. The SDO even did not call for any report from Halka Patwari in this regard and decided issues Nos.1, 2 and 4 in favour of the plaintiffs-respondents Nos.1 to and thus, the impugned orders have been passed without following the provisions of the Section 53 of the Act of 1955. 10. Learned counsel for the petitioners also submits that the RAA and the Board of Revenue have failed to consider the legal position inasmuch as the suit was barred by limitation. The plaintiffs-respondents Nos.1 to 7 have failed to prove as to how they were prevented by sufficient cause from not filing the suit within limitation. 11. Learned counsel for the petitioners also submits that the RAA and the Board of Revenue have also failed to consider that it was a case of extinction of tenancy within the meaning of Section 63(1)(ii) of the Act of 1955. The petitioners-defendants were in cultivatory possession of the land for the last 50 years and thus, the plaintiffs-respondents Nos.1 to 7 shall be deemed to have lost or extinguished their rights in the land in question by adverse possession of the petitioners-defendants. 12. The petitioners-defendants were in cultivatory possession of the land for the last 50 years and thus, the plaintiffs-respondents Nos.1 to 7 shall be deemed to have lost or extinguished their rights in the land in question by adverse possession of the petitioners-defendants. 12. Heard learned counsel for the petitioners and perused the material available on record as well as the impugned orders. 13. This Court finds that the SDO, while deciding issue No.1, has, after considering all the materials and evidence on record, categorically observed that the petitioners-defendants have utterly failed to prove that how and when the plaintiffs-respondents Nos.1 to 7 were extinguished from their khatedari rights. It was also observed that it may be possible that a co-tenant is in possession with the consent of another co-tenant and during cultivation, receipt may have been issued in the name of the said co-tenant and only on the basis of the said receipts it cannot be said that the rights of the plaintiffs-respondents Nos.1 to 7 were extinguished. Since the issue No.1 was decided in favour of the plaintiffs-respondents Nos.1 to 7, therefore, the issues Nos.2 and 4 were also decided in favour of the plaintiffs-respondents Nos.1 to 7 and found the plaintiffs-respondents Nos.1 to 7 entitled to have their shares in the land. So far as issues Nos.3 to 5 with regard to the well is concerned, the SDO has decided the same in favour of the petitioners-defendants. The RAA and the Board of Revenue have also concurred with the findings of the SDO vide orders dated 07.10.2003 (Annex.7) and 06.02.2020 (Annex.8) respectively. 14. This Court also finds that no issue was framed with regard to the limitation and, therefore, at this stage, this issue cannot be considered by this Court. 15. It is well settled proposition of law that this Court should be loath in interfering with the concurrent findings under the writ jurisdiction. In the case in hand, there being three concurrent findings, the writ petition is liable to be dismissed. 16. In view of the above, the writ petition is dismissed being devoid of merit. 17. The stay application and all pending applications, if any, also stand dismissed.