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2024 DIGILAW 217 (RAJ)

Ajimadin S/o Noor Mohammad v. State of Rajasthan

2024-02-06

NUPUR BHATI

body2024
ORDER : 1. The instant writ petition has been filed under Articles 226 and 227 of the Constitution of India with the following prayers: “It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuing an appropriate writ, order, or direction: (i) The order dated 23.02.2017 (Annex.4), passed by the Learned SDM, Kolayat, Bikaner; order dated 03.04.2017 (Annex.6), passed by the Learned Revenue Appellate Authority, Bikaner and the order dated 16.11.2023 (Annex.9) passed by the Learned Board of Revenue, Ajmer, may kindly be set aside. (ii) That the suit filed by the respondent against the petitioner under Section 175 of the Rajasthan Tenancy Act, 1955 (Annex.1), may kindly be dismissed. (iii) Any other order favorable to the Petitioners may also be passed. (iv) Cost of the writ petition may be awarded.” 2. Brief facts of the case are that the respondent-State filed a suit against the petitioner under Section 175 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as ‘the Act of 1955’) for ejectment of the petitioner from the property in question. The property in question was originally allotted to one Faujiya S/o Manaram Nayak, who belonged to a ‘Scheduled Caste’ category. Thereafter, Faujiya, by way of a sale deed dated 21.08.1983, sold the property in question to one Setharam, who did not belong to the ‘Scheduled Caste’ category. The revenue entry No. 1963 dated 21.08.1983 was entered into the revenue record accordingly. Thereafter, Setharam, further sold the said property in question to the petitioner on 28.09.2001 for which, the revenue entry No. 2807 dated 29.11.2001 was made. 3. The petitioner filed an application under Order 7 Rule 11 of Civil Procedure Code (hereinafter referred to as ‘CPC’) on the ground that the suit is barred by limitation and therefore, the same deserves to be dismissed. The learned Sub-Divisional Magistrate, Kolayat, District Bikaner, dismissed the application of the petitioner vide order dated 29.12.2016 (Annexure-3). 4. Thereafter, the suit filed by the respondent-State came to be allowed vide order dated 23.02.2017 (Annexure-4). The petitioner being aggrieved of the decree dated 23.02.2017 (Annexure-4), preferred an appeal under Section 223 of the Act of 1955 before the Revenue Appellate Authority (RAA), Bikaner, which came to be dismissed vide order dated 03.04.2017 (Annexure-6). 5. 4. Thereafter, the suit filed by the respondent-State came to be allowed vide order dated 23.02.2017 (Annexure-4). The petitioner being aggrieved of the decree dated 23.02.2017 (Annexure-4), preferred an appeal under Section 223 of the Act of 1955 before the Revenue Appellate Authority (RAA), Bikaner, which came to be dismissed vide order dated 03.04.2017 (Annexure-6). 5. The petitioner being aggrieved of the order dated 03.04.2017 (Annexure-6), preferred the second appeal before the Board of Revenue, Ajmer, under Section 224 of the Act of 1955, which also came to be rejected vide order dated 11.07.2023 (Annexure-8). 6. Learned counsel for the petitioner submits that: (a) All the revenue courts have failed to adjudicate the matter on the ground raised by the petitioner as the suit was barred by limitation. As per Section 214 of the Act of 1955, every suit specified in the Third Schedule ought to be filed within a period of 30 years as prescribed under the Schedule. (b) Though, initially, the property in dispute vested with one Shri Faujiya belonging to ‘Scheduled Caste’ category, who sold the property to one Setharam and Setharam further sold the said property to the petitioner on 28.09.2001 and therefore, the petitioner could not have been ejected from the said property based on the fact that the property vested with the person belonged to ‘Scheduled Caste’ category. (c) The suit has not been adjudicated by the revenue courts, on the point that it is barred by limitation and therefore, the matter ought to be remanded back to the revenue courts in order to adjudicate the issue of limitation. Heard learned counsel for the petitioner as well as perused the material available on record. 7. It is seen from the orders passed by the revenue courts that the revenue courts, after examining all the documents and record placed before it, has held that the property in dispute being an agricultural property belonging to a ‘Scheduled Caste’ person, could not have been sold to a person, who is belonging to a ‘General’ category, which is violation of Section 42 (b) of the Act of 1955. The revenue courts have further held that the said sale is void-ab-initio, as the sale is in blatant violation of Section 42 of the Act of 1955. 8. The revenue courts have further held that the said sale is void-ab-initio, as the sale is in blatant violation of Section 42 of the Act of 1955. 8. The petitioner has not disputed the fact that initially, the property in dispute being an agricultural property in nature, was vested with the person belonging to the ‘Scheduled Caste’ category and therefore, even if the petitioner has purchased the property from a ‘General’ Category person, then too such a sale is in violation of the provisions as laid down under Section 42 (b) of the Act of 1955. Section 42 (b) of the Act of 1955, is reproduced hereunder: “42. General restrictions on sale, gift and bequest - The sale, gift or bequest by a Khatedar tenants of his interest in the whole or part of his holding shall be void, if: (a) Omitted. (b) such sale, gift or bequest is by a number of Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who in not a member of the Scheduled Tribe. (bb) such sale, gift or bequest, notwithstanding anything contained in clause (b), is by a member of Saharia Scheduled Tribe in favour of a person who is not a member of the said Saharia tribe. (c) Omitted.” 9. Under Section 42 (b) of the Act of 1955, it has been specifically laid down that the sale, gift and bequest of khatedar tenants of his interest in the whole part of his holding shall be void if such sale, gift or bequest is by a number of ‘Scheduled Caste’ in favour of a person who is not a member of ‘Scheduled Caste’ and admittedly in the present case, the original land in question, an agricultural land, vested with one Shri Faujiya S/o Manaram Nayak, who in turn, sold the property to one Setharam on 21.08.1983, who did not belong to the ‘Scheduled Caste’ category, and further, the land was sold by him to the present petitioner on 28.09.2001, who is admittedly not belonging to the ‘Scheduled Caste’ category. 10. 10. This Court also takes note of the fact that the application filed by the petitioner under Order 7 Rule 11 of Civil Procedure Code while objecting that the suit is barred by limitation, was dismissed by the learned Sub-Divisional Magistrate, Kolayat, District Bikaner, vide order dated 29.12.2016 (Annexure-3) and the said order dated 29.12.2016, was not challenged by the petitioner. It is also seen from the documents placed on record that the suit was filed on 01.02.2016 (Annexure-1) and the application under Order 7 Rule 11 of CPC was filed by the petitioner on 24.02.2016. The learned Sub-Divisional Magistrate, Kolayat, District Bikaner, vide order dated 29.12.2016 has observed that the petitioner was present before the Court on 24.02.2016 through his counsel, however, despite passing of about 9 months, the petitioner did not bother to file the written statements and thereafter, the Sub-Divisonal Magistrate closed the written statements of the petitioner vide order dated 23.02.2017 (Annexure-4). The suit filed by the State was allowed and the petitioner preferred an appeal under Section 223 of the Act of 1955 which came to dismissed on 03.04.2017 (Annexure-6). The petitioner filed a revision under Section 224 of the Act of 1955 against the Appellate Authority and the said revision petition was also dismissed vide order dated 11.07.2023 (Annexure-8). The petitioner did not challenge the order dated 29.12.2016 (Annexure-3) by which the application dated 24.02.2016 filed by the petitioner under Order 7 Rule 11 of CPC was dismissed. The State specifically submitted in the suit that both the sale deeds had come to the notice of the State for the first time on 06.08.2015 when the revenue report was called upon from the concerned Patwari and thereafter, the suit was preferred on 01.12.2016 by the State. The first sale deed was entered on 21.08.1983 and thereafter, the second sale deed was entered between the parties on 29.11.2001 and the same had come to the knowledge of the respondent State on 06.08.2015. Thus, as per Section 17 of the Limitation Act, 1963, the period of limitation is to be counted from the discovery of the date when the respondents had come to know of the said sale deeds i.e. 6.08.2015 and therefore, the revenue courts have rightly rejected the application filed by the petitioner under Order 7 Rule 11 vide order dated 29.12.2016 (Annexure-3). Since the petitioner has not raised the ground of limitation in the original suit, the appellate authority and revisional authority were not required to give any observation in their orders in respect to the point of limitation. The relevant provision has been reproduced as under: “17. Effect of Fraud or Mistake: (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act: (a) the suit or application is based upon the fraud of the defendant or respondent or his agent. (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid. (c) the suit or application is for relief from the consequences of a mistake. (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which: (i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed. (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made. (iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.....” 12. (iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.....” 12. In the case of Pallav Sheth vs. Custodian, (2001) 7 SCC 549 and in the case of P. Radhabhai vs. P. Ashok Kumar, (2019) 13 SCC 445 , The Hon’ble Apex Court has held that: “Therefore in the event the plaintiff makes out a case that falls within any or more of the four clauses to sub-section (1) to Section 17 of the Limitation Act, the period of limitation for filing of the suit shall not begin to run until the plaintiff or applicant has discovered the fraud/mistake or could with reasonable diligence have discovered it or if the document is concealed till the plaintiff has the means of producing the concealed document or compelling its production a fortiori. The word ‘diligence’ read with the word ‘reasonable’ in the context of Section 17(1) of the Limitation Act is subjective and relative and would depend upon circumstances of which the actor called upon to act reasonably, knows or ought to know. Vague clues or hints may not matter. Whether the plaintiff/applicant had the means to know the fraud is a relevant consideration. It is manifest that Section 17(1) of the Limitation Act does not protect a party at fault for failure to exercise reasonable diligene when the circumstances demand such exercise and on exercise of which the plaintiff/applicant could have discovered the fraud. When the time starts ticking subsequent events will not stop the limitation. The time starts running from the date of knowledge of the fraud/mistake; or the plaintiff/applicant when required to exercise reasonable diligence could have first known or discovered the fraud or mistake. In case of a concealed document, the period of limitation will begin to run when the plaintiff/applicant had the means of producing the concealed document or compelling its production.” 13. This Court also finds that it is not open for the petitioner to raise the ground of limitation at the appellate stage, as the petitioner failed to take the said objection in the written statement to the suit and rather, the petitioner chose not to file the written statement before the revenue court. This Court also finds that it is not open for the petitioner to raise the ground of limitation at the appellate stage, as the petitioner failed to take the said objection in the written statement to the suit and rather, the petitioner chose not to file the written statement before the revenue court. Also, where the party omits to raise the objection to the observation/direction given by the concerned court in its order/judgments, then, it is deemed that the person has waived his right and here, the petitioner has not challenged the order dated 29.12.2016 (Annexure-3) passed by the learned trial court while dismissing the application filed by the petitioner under Order 7 Rule 11 of CPC, meaning thereby, that the petitioner has waived his right of raising the said objection of limitation before the Appellate and Revisional Courts. The petitioner, thus, cannot for the first time in the appeal from the decision of that court, raise such objection. 14. In view of the facts noted hereinabove and more particularly the fact that the sale in question is void-ab-initio under the provisions of Section 42 (b) of the Act of 1955 as the property in question, an agricultural land belonging to the ‘Schedule’ Caste Category had been sold to a ‘General’ category person, this Court is of the opinion that the same is dehors the provisions of Section 42 of the Act of 1955 and the State has specifically submitted in the suit that it was only on 06.08.2015, the fact of sale came to their knowledge. 15. The order dated 23.02.2017 (Annexure-4) passed by the learned Sub-Divisional Magistrate, Kolayat, District Bikaner and the orders dated 03.04.2017 (Annexure-6) and 16.11.2023 (Annexure-9) passed by the learned revenue courts, do not require any interference and hence, the writ petition fails and is dismissed as being devoid of any merit. 16. Stay application as well as all other pending applications, if any, also stand rejected.