Laxman Singh vs Vijay Kumar (2024:Rj-Jd:20628) on 8 May, 2024

[Cites 5, Cited by 0]

Rajasthan High Court - Jodhpur

Laxman Singh vs Vijay Kumar (2024:Rj-Jd:20628) on 8 May, 2024

1. The petitioner has preferred this writ petition assailing the validity of the orders dated 05.07.2021 (Annex.11) and 28.02.2024 (Annex.15) passed by learned Revenue Appellate Authority, Nagaur and Board of Revenue, Ajmer respectively.

2. The brief facts of the case, from which the controversy originates are that the petitioner purchased the land in question ad-measuring 10 Bigha comprising of Khasra No.494, new Khasra number whereof is 912, of Village Mithdi, Teshil Nawa, District Nagaur from one Harchand by an Agreement to Sale dated 31.07.1985 (Annex.16) for a consideration of Rs.15,000/-. It is alleged in the writ petition the petitioner was put in possession of the land in question in the year 1985 soon after execution of the agreement i.e. during the lifetime of Sh. Harchand, however, the registered sale-deed could not be executed despite petitioner's repeated request of said Sh. Harchand. Later on, Sh. Harchand died and thereafter the petitioner filed a suit for Specific Performance against the legal representatives of Sh. Harchand, who are respondents No.1 to 5 herein, in the court of Civil Judge, Nawa. The suit filed by the petitioner came to be decreed in favour of petition vide judgment and decree dated 13.05.2016 (Annex.1). Along with the suit, the petitioner got exhibited the agreement to sale as Ex.1 executed by late Sh. Harchand qua land ad- measuring 10 Bigha of Khasra No.494 and also produced other documents viz. Khasra Milan, Jamanbandi etc. Pursuant to the judgment and decree dated 13.05.2016 and in execution of the (Downloaded on 14/05/2024 at 08:34:37 PM) [2024:RJ-JD:20628] (3 of 12) [CW-4358/2024] said decree the sale-deed was executed in favour of petitioner on 06.03.2017 (Annex.3) and mutation entry was also made in the name of petitioner in the revenue record on 12.04.2017 (Annex.4).

3. In the writ petition, it has been alleged that even prior to agreement to sale, the predecessor in title of the petitioner i.e. late Sh. Harchand filed a suit for regularization of the land in question in his name before the S.D.M. in the year 1984, which suit came to be decreed on 25.05.1985 (Annex.5). The agreement to sale executed in favour of petitioner on 31.07.1985 was subsequently registered under the orders of the competent court on 13.05.2016.

4. The petitioner has also referred the facts of a suit for permanent filed by the petitioner in the year 2020 against Mehboob S/o Liyakat Ali, who when tried to encroach over the land of the petitioner of Khasra No.494 (New Khasra No.912) and said Mehoob also filed counter claim claiming himself to be in possession of land of Khasra Nos.911, 157/912 and 1580/941. The suit filed by the petitioner and the counter claim filed by said Mehboob, came to be disposed of by learned S.D.O., Nawa vide its order dated 16.09.2020 (Annex.7), whereby the suit filed by the petitioner and the counter claim were allowed and Mehboob was restrained from disturbing the possession of the petitioner and it was also held that the petitioner would not be concerned with the land possessed by Mehboob.

5. The private respondents No.6 to 12, who have been styled as stranger (who are local residents of Nawa city) to the lis, after lapse of almost 35 years filed appeal before the Revenue Appellate (Downloaded on 14/05/2024 at 08:34:37 PM) [2024:RJ-JD:20628] (4 of 12) [CW-4358/2024] Authority, Nagaur ('RAA') in the year 2021 assailing the validity the decree dated 25.05.1985 passed by S.D.M., Nawa in Suit No.490/1984 taking advantage of wrong mentioning of Khasra number in the order. Alongwith the said appeal, application under for condoning the delay and right to file appeal was also filed.

6. In the writ petition, it is averred that the summons of the appeal were never served upon the petitioner or the legal heirs of late Sh. Harchand, and merely on the basis of report of the process server with regard to refusal to accept the summons, the learned RAA proceeded to treat said service of the summons to be sufficient/complete. The learned RAA vide its order dated 05.07.2021 (Annex.8) proceeded to allow the appeal filed by respondents No.6 to 12 while deciding the issue of limitation as also their locus to file appeal and thereby set aside the decree dated 25.05.1985 passed by S.D.M., Nawa and directed the revenue authorities to restore the position with regard to revenue record which existed prior to passing of the decree dated 25.05.1985.

7. The petitioner feeling aggrieved of the order dated 05.07.2021 (Annex.8) passed by learned RAA and after having come to know of passing of the said order, filed appeal before the learned Board of Revenue, Ajmer on 09.09.2022 alongwith an application under Section 5 of the Limitation Act. The appeal preferred by the petitioner was registered as Appeal No.5124/2022.

8. The learned Board of Revenue, Ajmer after hearing the respective parties vide its judgment and order dated 28.02.2024 (Annex.15) proceeded to dismiss the appeal filed by the petitioner. (Downloaded on 14/05/2024 at 08:34:37 PM)

 [2024:RJ-JD:20628]                    (5 of 12)                        [CW-4358/2024]



9.    The    petitioner     has     preferred        this     writ   petition   being

aggrieved     by     and   dissatisfied       with     orders      impugned     dated

05.07.2021 (Annex.11) and 28.02.2024 (Annex.15) passed by learned RAA and the Board of Revenue, Ajmer respectively.

10. Learned counsel for the petitioner submits that both the courts i.e. learned RAA and Board of Revenue have not considered the facts and law while passing the orders impugned. Learned counsel for the petitioner submits that the appeal before the learned RAA challenging the decree dated 25.05.1985 was preferred by strangers viz. Respondents No.6 to 12, who were not even party in the proceedings of Suit No.490/1985 and further the appeal was filed after inordinate and unexplained delay of 35 years. Learned counsel for the petitioner further submits that revenue suit was filed by late Sh. Harchand (predecessor in title of the petitioner) for regularization of his possession over the land comprising of Khasra No.494 as is evident from Annex.12, which is certified copy of suit filed by late Sh. Harchand before the learned S.D.M., Nawa, wherein the Khasra No.494 was specifically mentioned. He further submits that in the prayer clause of said suit, late Sh. Harchand specifically prayed for declaring him Khatedar of land in question i.e. of Khasra No.494 ad-measuring 12 Bigha and for entering his name in the revenue record.

10. Learned counsel for the petitioner submits that inadvertently in the decree dated 25.05.1985 passed by S.D.M., Nawara, the Khasra number was wrong mentioned as '414' in facts, whereas as per the pleadings of the suit and the relief claimed therein, it is manifestly clear that the Khasra number was 494 and not 414. Counsel for the petitioner further submitted while passing the (Downloaded on 14/05/2024 at 08:34:37 PM) [2024:RJ-JD:20628] (6 of 12) [CW-4358/2024] decree, the correct Khasra number was mentioned as 494 and there was no overwriting in the same. Learned counsel for the petitioner submits that the respondents No.6 No.12, who are stranger to the lis involved, and taking advantage of such inadvertent mistake being crept in the decree dated 25.05.1985, they had assailed the decree dated 25.05.1985 by filing appeal after a delay of more than 35 years. Learned counsel for the petitioner further submits that the petitioner in possession of the land in question since 31.07.1985 i.e. the date of execution of agreement to sale and that the petitioner was never ever dispossessed from the land in question.

11. Learned counsel for the petitioner further submits that the petitioner had purchased the land from its lawful owner and after death of Sh. Harchand, a registered sale-deed was executed on 06.03.2017 in pursuance of the judgment and decree dated 13.05.2016 passed by a competent civil court in the suit filed by the petitioner for Specific Performance of the agreement dated 31.07.1985 (Annex.16). Learned counsel for the petitioner thus submits that the petitioner was and is thus bonafide purchaser of the land in question from his predecessor in title for consideration.

12. An additional affidavit was also filed by the petitioner on 03.04.2024 alongwith which the petitioner has annexed copy of agreement to sale dated 31.07.1985 as Annex.16 and copies of orders dated 21.102022 and 28.09.2022 as Annex.17 and 18 respectively. Copies of 'Khatoni Bandobast' of Samvat Year 2008 to 2026 alongwith Khasra Milan of Khasra No.494 and the revenue entry made by the Settlement Department in Khasra No.912 in the name of Sh. Harchand have also been filed.

(Downloaded on 14/05/2024 at 08:34:37 PM)

[2024:RJ-JD:20628] (7 of 12) [CW-4358/2024]

13. Learned counsel for the petitioner in support of his case placed reliance on judgment in Jashbhai Motibhai Desai v. Roshan Kumar & Ors. : (1976) 1 SCC 671 and Sohanlal vs. The Union of India (UOI) : AIR 1957 SC 529.

14. Mr. Vishal Sharma, learned counsel entered Caveat on behalf of respondents No.6 to 12.

15. On behalf of respondents No.6 to 12, a reply to petition came to be filed while raising various preliminary objections. In the reply, it is inter-alia alleged that the petitioner has concealed material facts from this Court, inasmuch as the petitioner has not deliberately place on record the judgment dated 05.12.2014 (Annex.R/6/1) passed by S.D.O., Nawa whereby suit filed by the petitioner for declaration of 'Khatedari' rights and correction in revenue record, was rejected. In the reply, it is submitted that in the aforesaid suit, the petitioner claimed his Khatedari right of the land comprising of Khasra No.444 and not qua Khasra No.494, which is the subject matter of the present writ petition. It is further alleged in the reply that in the proceedings initiated against the petitioner under Section 91 of the Land Revenue Act, 1956, the revenue authority has found the petitioner to be encroacher over the land in question and that the petitioner was not in possession. Allegation of pleading false facts on oath have also been levelled while relying and annexing manipulated documents. In the reply, it is stated that in the decree dated 25.05.1985, the Khasra No.414 ad-measuring 12 Bigha was mentioned, however, in the decree, while manipulating in Khasra number, the same was made as '494' instead of '414' that too ad- measuring 10 Bigha. In the reply, the respondents No.6 to 12 (Downloaded on 14/05/2024 at 08:34:37 PM) [2024:RJ-JD:20628] (8 of 12) [CW-4358/2024] have alleged that land comprising of Khasra No.494 is a Government land and the petitioner while manipulating the things claiming his right over land comprising of Khasra No.494. Alongwith reply, the respondents No.6 to 12 have annexed copy of attachment order dated 20.09.2022 (Annex.R/6/2) and relevant mutation entries (Annex.R/6/3 and R/6/4).

16. Learned counsel for the respondents No.6 to 12 submits that while reiterating the preliminary objections raised in the reply vehemently submitted that the petitioner never put in possession of the land in question and that the land in question was in fact a public utility land and the same was being used for 'Holika Dahan' since time immemorable. Learned counsel for the respondents further submits that since the rights of Sh. Harchand qua the land in question of Khasra No.494 were never crystallized, therefore, the said rights or land count not have been transferred in the name of petitioner. Learned counsel for the respondents No.6 to 12 further contended that suit for specific performance of agreement itself was filed with a delay of 30 years. Learned counsel for the respondents further submitted that even if it assumed that inadvertently Khasra No.414 was mentioned in the decree dated 25.05.1985, however, no efforts were made for correcting the said inadvertent error either by late Sh. Harchand or the petitioner. Learned counsel for the respondents further submits that

17. Learned counsel for the respondents No.6 to 12 submits that learned RAA has considered the reasons assigned for delay in filing the appeal and the locus of the respondents No.6 to 12 and thus no error has been committed by the learned RAA while (Downloaded on 14/05/2024 at 08:34:37 PM) [2024:RJ-JD:20628] (9 of 12) [CW-4358/2024] passing the order dated 05.07.2021 (Annex.11). Learned counsel for the respondents further submits that summons were duly served upon the petitioner and other respondents, however, even after service of the notice by affixing the summons at the premises of the petitioner and respondents No.1 to 5, they deliberately chose not to appear in the proceedings being initiated by the respondents No.6 to 12 by filing appeal. Learned counsel for the respondents submits that report of the process server with regard to refusal to accept summon was duly supported by the affidavits of the nearby place and the has rightly been considered by the learned RAA.

18. Learned counsel for the respondents No.6 to 12 further submits that the learned Board of Revenue has considered the contentions and grounds raised by the petitioner and after considering the entire record, rightly dismissed the appeal preferred by the petitioner. Learned counsel for the respondents thus prayed that the writ petition be dismissed.

19. I have considered the submissions made by counsel for the parties and have perused the material available on record and the judgment cited at Bar.

17. This Court finds that the petitioner is claiming himself to be rightful owner of the land in question of Khasra No.494 of Village Mithdi, Teshil Nawa, District Nagaur, which he purchased from late Sh. Harchand vide Agreement to Sale dated 31.07.1985 (Annex.16) and pursuant to decree dated 13.05.2016 (Annex.1) passed by the civil court, the registered sale-deed qua the said land was executed on 06.03.2017 (Annex.3) in favour of petitioner. This Court perused the Agreement to Sale dated (Downloaded on 14/05/2024 at 08:34:37 PM) [2024:RJ-JD:20628] (10 of 12) [CW-4358/2024] 31.07.1985 (Annex.16), copy whereof was filed alongwith additional affidavit; a perusal of the Annex.16 reveals that though 'Khasra No.494' is mentioned in the agreement to sale, however, overwriting with regard to measurement of the land is clearly discernible, inasmuch as initially it was shown as '12 Bigha', and the same has been done as '10 Bigha'. This, in the opinion of the Court, creates a suspicion. This Court further observes that the specific performance of the agreement dated 31.07.1985 (Annex.16) was sought after a delay of 30 years after death of late Sh. Harchand.

18. This Court also perused the decree dated 25.05.1985 (Annex.5) passed by S.D.M., Nawa allowing Suit No.490/1985 filed by Sh. Harchand. Although, in the suit (Annex.12) (Page 121 of the paper book), Sh. Harchand sought regularization of his possession over the land of Khasra No.494 ad-measuring 12 Bigha, however, while passing the decree 25.05.1985 (Annex.5), the Khasra No.414 was mentioned in the order. Even if it assumed that the same was an inadvertent mistake on the part of the court concerned, no efforts were ever made for seeking correction of the said error either by Harchand, legal heirs of Harchand or even by the petitioner. Further, a perusal of the decree dated 25.05.1985 (Annex.5) would reveal there is some manipulation in the 'Decree Parcha' (Page 57 of the paper book) where 'Khasra No.494' has been changed by stroke of pen, and no there was initials or signature of the authority concurring with such correction. Furthermore, the measurement of the land has been shown as '10 Bigha' instead of '12 Bigha', of which regularization was sought by Sh. Harchand. Counsel for the petitioner upon a query being made (Downloaded on 14/05/2024 at 08:34:37 PM) [2024:RJ-JD:20628] (11 of 12) [CW-4358/2024] in this regard, could not answer the same, and simply pleaded that it was an inadvertent mistake.

19. Insofar as contention of learned counsel for the petitioner that the appeal against the decree dated 25.05.1985 was preferred by strangers and the same was barred by limitation is concerned, this Court finds that the learned RAA has considered the said aspects. This Court finds that learned RAA has considered the reasons assigned application under Section 5 of the Limitation Act and 96 of CPC and condoning the delay in filing assailing the validity of the decree dated 25.05.1985. The learned RAA considered the pleadings that initially the land was Government land and no revenue record viz. Jamabandi in relation to possession of Harchand of the land in question were submitted before the S.D.M., Nawa. The learned RAA after perusing the revenue record has rightly came to the conclusion that the land was being used for public purposes and while manipulating/over writing in the decree dated 25.05.1985, the sale-deed was got executed in favour of petitioner. This Court also finds that summons were duly served upon the petitioner and other co- respondents, however, even after gaining knowledge about filing of appeal, the petitioner has chosen not to appear before the learned RAA, Nagaur and no reasons have been assigned for his non-appearance despite gaining knowledge about filing of appeal by respondents No.6 to 12.

20. This Court also perused the judgment dated 05.12.2014 (Annex.R/6/1) passed by S.D.O., Nawa filed by the respondents No.6 to 12, whereby suit filed by the petitioner for declaration of 'Khatedari' rights and correction in revenue record, was rejected. (Downloaded on 14/05/2024 at 08:34:37 PM)

[2024:RJ-JD:20628] (12 of 12) [CW-4358/2024] In the aforesaid suit, the petitioner claimed that he is in possession of land comprising of 'Khasra No.444' and not in 'Khasra No.494', as pleaded in the present writ petition. Be that as it may, the suit preferred by the petitioner for declaration and correction in the record under Section 88 of the R.T. Act was dismissed, inasmuch as the said suit was filed while relying on sale-deed and not claiming rights on the basis of adverse possession. This Court also finds that since the rights of Sh. Harchand qua the land in question of Khasra No.494 were never crystallized by any competent court, therefore, the said rights or land count not have been transferred in the name of petitioner, even by way of execution of registered sale-deed.

21. This Court also finds that the learned Board of Revenue has also minutely considered the grounds raised by the petitioner, which are now sought to be raised before this Court. It is also seen that the documents which have been filed in the instant writ petition, were not produced before the learned Board of Revenue.

22. In view of above discussion and looking to the fact that there are two concurrent findings of learned RAA and Board of Revenue, no interference is called for in the impugned orders. The writ petition is, accordingly, dismissed. Stay Petition as also any misc. application, if any pending, also stand dismissed.

(DR. NUPUR BHATI),J 52-DJ/-

(Downloaded on 14/05/2024 at 08:34:37 PM) Powered by TCPDF (www.tcpdf.org)

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jodhpur