Rajasthan High Court - Jaipur
Chand Mal And Anr vs B O R Ajmer And Ors on 6 December, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4457/2013 With Stay Application No.3461/2013 Chand Mal and Others Vs. Board of Revenue, Ajmer and Others Date of Order ::: 06.12.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Shri N.K. Maloo, Senior Counsel with Shri Vinod Kumar Tamoliya, for petitioners Shri K.K. Mehrishi, Senior Counsel with Shri Sanjay Mehrishi, for respondents #### //Reportable// By the Court:-
This writ petition has been filed by three petitioners against judgment dated 29.11.2012 passed by the Board of Revenue, whereby their second appeal filed against judgment dated 28.04.2004 of the Revenue Appellate Authority, Jaipur, in Appeal No.135/2001 was dismissed and the judgment and decree dated 30.04.2001 in Revenue Suit No.83/1996 passed by Assistant Collector, Chaksu, was affirmed and their suit for declaration and possession was dismissed.
According to petitioners, the land of Khasra Nos.1185, 1187, 1188, 1189, 1190, 1191, 1192, 1193 and 1196, total measuring 6 bighas and 9 biswas, situated in Village Chandlai, was in khatedari of Bhuriya, grandfather of petitioners. Upon death of Bhuriya in 1959, the said land was mutated in the name of Guliya, father of the petitioners, vide mutation no.103 on 20.05.1960. It was thereafter that Patwari concerned fraudulently attested mutation of the said land vide mutation no.235 in favour of Kalyan on the basis of oral statement of the then Sarpanch that Bhuriya told him that he would have no objection if the land is mutated in the name of Kalyan, which was mutated in his name on 30.06.1960. In fact, the land was given to Kalyan, father of the defendants only for cultivation on crop sharing basis in 1960. Kalyan, however, stopped giving share in the crop and, therefore, he was ousted from the said land in 1978 and another cultivator was put in possession with the same understanding that cultivation would be on crop sharing basis. Kalyan died in the year 1981. Defendant illegally took possession of the said land in 1985 from that another cultivator. When petitioners learnt about fraudulent entry of the names of the defendants in the revenue record and the mutation attested in favour of their father Kalyan on 30.06.1960, petitioners filed a suit for declaration and recovery of possession against the defendants on 06.10.1996 under Sections 88, 89, 183 and 188 of the Rajasthan Tenancy Act. The suit was contested by the defendants. They filed written statement on 13.09.2000. Assistant Collector, Chaksu, vide order dated 30.04.2001, dismissed the suit. Petitioners then filed an appeal against the said judgment, which too was dismissed by the Revenue Appellate Authority vide order dated 28.04.2004. The Board of Revenue however, subsequently allowed the appeal of petitioners vide order dated 26.08.2010 and set aside the judgment of two courts below and decreed the suit in favour of petitioners. Aggrieved thereby, respondents approached this court by way of filing writ petition, being Writ Petition No.12415/2010, assailing the said judgment of the Board of Revenue. This court, vide judgment dated 19.11.2010 set aside the judgment of the Board of Revenue and remanded the matter observing that the Board has not examined the issue of limitation while reversing the judgment passed by two courts below. The Board of Revenue has now, dismissed the appeal filed by the petitioners vide judgment dated 29.11.2012. It is against the backdrop of these facts that present writ petition has been filed by petitioners assailing aforesaid three judgments.
Shri N.K. Maloo, learned Senior Counsel, appearing for petitioners, argued that learned courts below failed to appreciate that mutation attested in favour of Kalyan, father of the defendants, on 30.06.1960 vide Exhibit 7, was a fraudulent entry and on that basis, all entries made thereafter are also fraudulent. Thereafter, the defendants were named as khatedars in the revenue record, which was based on fraud and therefore was void-ab-initio. Learned courts below have failed to appreciate that delay in a case of fraud would be inconsequential. Though, even otherwise, there is no limitation prescribed in law for a suit for declaration. Learned Senior Counsel referred to Section 183 of the Rajasthan Tenancy Act, which is one of the provisions under which the suit was filed, and argued that though it was a combined suit for declaration and recovery of possession. Section 183 provides that a trespasser, who has taken or retained possession of any land without lawful authority shall be liable to ejectment on the suit of the person or persons entitled to eject him. In the present case the first issue that was required to be determined was as to the entitlement of the petitioners in their declaratory suit and limitation of 12 years for ejectment with reference to Entry 23 of the third schedule appended to the Rajasthan Tenancy Act, would start to run only from the date of such declaration. Learned Senior Counsel argued that the courts below have recorded an erroneous finding that the land was mutated in favour of defendants/their predecessor-in-title on the basis of long possession prior to 1954, whereas it has also given a contrary finding ignoring the fact that prior to 1960 the land was recorded in the khatedari of Bhuriya, grandfather of the petitioners. Learned Senior Counsel referred to the entry of mutation (Annexure-5) and argued that mutation was attested in the name of Kalyan, father of the defendants, only because the Sarpanch made an endorsement therein that Guliya appeared and told him that disputed land has wrongly been entered in his khatedari and that he would have no objection if it is now entered in the name of Kalyan, who too was present. Learned Senior Counsel submitted that change in the entry of mutation can be made only on the basis of transfer by registered document or by succession or otherwise on the strength of the order passed by a competent court. The proprietary rights of an immovable property cannot be transferred by oral transaction and the same is void and illegal. Sarpanch had no legal authority to change the said mutation.
Shri N.K. Maloo, learned Senior Counsel argued that learned courts below have recorded an erroneous finding on issue no.4 making out a new case that mutation (Exhibit-7) was rightly attested in favour of Kalyan as he was in possession of the land being a mortgagee and mortgage not redeemed. This finding is perverse as there was neither any pleading in the written statement of the defendants to that effect nor was any such evidence led. On the contrary, the land was mortgaged by Guliya, father of Mangilal and document of redemption was attested by Mahadev, father of defendant Kalyan. Learned Senior Counsel further argued that finding recorded by the courts below on issue no.11 with regard to the suit being time barred and having been filed beyond the period of limitation is perverse and erroneous. The defendants haven not taken any specific objection/plea in their written statement as to how the suit filed by the plaintiff was barred by limitation. The courts below have not given any justification and have not even specified as with reference to which provision of law the suit filed by the petitioners could be said to be time barred. A specific case was set up by the plaintiff-petitioners that they came to know about mutation entry only in the year 1996. There was no contrary plea set up by the respondent regarding previous knowledge of the plaintiff petitioners. The limitation should therefore be counted from the date of knowledge. Learned Board of Revenue has recorded an illegal finding that declaratory suit could be filed only if the plaintiff was in possession of the property. Such a finding is contrary to the settled proposition of law. Neither the law requires that the plaintiff seeking a declaration from a court, should be in possession at the time of filing of the suit, nor the law provides for any limitation for filing the suit for declaration.
Shri N.K. Maloo, learned Senior Counsel, argued that according to Article 64 of the Schedule appended to the Limitation Act, when the suit for recovery of possession of immovable property is based on previous possession and not on title, and the plaintiff, who was in possession of the property, has been dispossessed, the limitation would be 12 years from the date of dispossession. This Article would be applicable in cases where suit is filed on the basis of possessory title. However, in the present case Article 65 of the Schedule appended to the Limitation Act would be attracted. According to that Article, though period of limitation for filing a suit for recovery of possession of immovable property, based on title, is 12 years but shall begin to run only when possession of the defendants becomes adverse to the plaintiff. In the present case, the defendants have not claimed their adverse possession and no such plea has been taken by the defendants with regard to adverse possession and admittedly the mutation in their favour has been illegally attested, father of the petitioners being lawful khatedar of the land in dispute. The suit should be taken to have been filed within prescribed period of limitation.
Shri N.K. Maloo, learned Senior Counsel appearing on behalf of the petitioners, in support of his arguments, has relied on the judgments of the Supreme Court in Santosh Vs. Jagat Ram and Another (2010) 3 SCC 251, Md. Mohammad Ali Vs. Jagadish kalita (2004) 1 SCC 271, A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (2012) 6 SCC 430, and that of this court in Kamad and Others Vs. Board of Revenue and Others 1985 RLR 553 and Budh Dan Vs. Board of Revenue 1987 RRD 97, and that of Gujarat High Court in Niranjan Amritlal Vs. Manharlal Jivanlal Parikh AIR 1984 Gujarat 24.
Per contra, Shri K.K. Mehrishi, learned Senior Counsel appearing on behalf of the respondents, argued that mutation in favour of Kalyan, father of the defendant/predecessor-in-title was admittedly attested in the year 1960 on 30.06.1960 and the suit for declaration and recovery of possession was filed by the plaintiff petitioners on 16.10.1996, thus clearly after 36 years from the date of accrual of the cause of action. Learned Senior Counsel argued that according to Section 63(1)(iv) of the Rajasthan Tenancy Act, interest of tenant in a holding shall stand extinguish when he has been deprived of possession and his right to recover possession is barred by limitation. Learned Senior Counsel argued that Entry 23 of the third schedule appended to the Rajasthan Tenancy Act prescribes 12 years as the period of limitation for recovery of possession. The suit in the present case having been filed after 36 years has rightly been held to be time barred. It is argued that a false plea was set up by the plaintiff that the possession of the defendants/their father was permissible as the land was given to them by the plaintiffs/their father for cultivation on crop sharing basis, and then further a false plea was set up that the defendants stopped giving share in the crop therefore they put another cultivator in possession in 1978, who continued in possession till 1985 when he was forcibly evicted by the defendants. The learned courts below have refused to believe such assertion wherefor there was absolutely no evidence. Learned Senior Counsel, in this respect, referred to the findings recorded by the learned Board of Revenue in Para 15 of its judgment, rejecting this argument with observation that the petitioners have not given the name of the cultivator, who was put in possession to cultivate the land on their behalf on crop sharing basis. If at all there existed any such cultivator, he should have been produced in evidence. Not only that, he was not produced in evidence, the plaintiff-petitioners have not given his name even in their pleadings. Their plea is palpably false and is intended only to cover up inordinate delay in filing the suit. The Board of Revenue has therefore rightly, on failure of the petitioners to prove this plea, held that the defendants have throughout remained in possession right from 1960. Issue no.11 has rightly been decided against the petitioners.
Shri K.K. Mehrishi, learned Senior Counsel argued that one wrong finding by the Board of Revenue that the suit for declaration could be filed only when the plaintiffs were in possession, would not have the effect of conferring jurisdiction of the court in a suit which is barred by as many as 36 years after accrual of the cause of action. Learned Senior Counsel, argued that Article 65 would have no application to the facts of the present case as the Rajasthan Tenancy Act is a special Statute, which has been enacted with a view to consolidate and amend the law relating to tenancies of agricultural lands and to provide for certain measures of land reforms and matters connected therewith. When the special Statute has provided for a special procedure, and in this case specific period of limitation for specific purpose, only that provision will apply and not the general provisions of the Limitation Act. It is therefore prayed that the writ petition be dismissed.
I have given my anxious consideration to rival submissions and perused the material on record.
Contention that limitation for a suit filed under Section 183 of the Rajasthan Tenancy Act in the present case should be taken to have commenced or for that matter cause of action should be taken to be accrued to plaintiff-petitioners, only when a declaration was issued in their favour, is indeed indigenous argument, which is noted only to be rejected. Entry 23 of the third schedule appended to the Rajasthan Tenancy Act is direct answer to this, which prescribes 12 years as the period of limitation for a suit for ejectment of trespassers filed under Section 183 of the Rajasthan Tenancy Act. In column 5 thereof, it has been clearly stated that time for counting the limitation in such a case would be from the date of accrual of cause of action. The cause of action for filing the suit for recovery of possession would be the date when the person lawfully entitled to retain its possession has been dispossessed and the trespassers have taken possession of the land. The Board of Revenue has on sound reasoning and correct appreciation of evidence, has rightly held that cause of action had arisen in 1960, the date on which the mutation was attested in favour of Kalyan, father of the defendants. This finding is quite justified in the light of prayer seeking declaration. First prayer in the suit is that the plaintiff be declared khatedar of the disputed land and the name of the defendants/their predecessors-in-title as khatedar be removed from the revenue record. After this prayer, combined prayer that was made for ejectment of the defendants and restoration of possession to the plaintiff. If the argument of the learned Senior Counsel, Shri N.K. Maloo, were to be countenanced, it would mean that though it was a joint suit for both declaration and recovery of possession, but the limitation for filing of the suit for recovery of possession would begin only after declaration has been made in favour of the plaintiff, which could keeping in view the prevalent scenario in revenue litigation, length of time a revenue suit is known to take upto conclusion, could be even 12 years after filing of the suit itself. Such an argument merits rejection and is accordingly repelled.
Contention that the Board has recorded an erroneous finding that the suit for declaration could be filed only by a party in possession, has rightly been countered by the learned Senior Counsel Shri K.K. Mehrishi appearing for the respondents, saying that such a finding even though erroneous, cannot have the effect of bringing the suit within limitation and cannot form basis for validating the time barred suit, which was otherwise grossly barred by limitation. I may in this connection usefully refer to Section 63(1)(iv) of the Rajasthan Tenancy Act, which reads as under:-
63. Tenancy When Extinguished (1) The interest of tenant in his holding or a part thereof, as the case may be, shall be extinguished-
(i) ...
(ii) ...
(iii) ...
(iv) when he has been deprived of possession and his right to recover possession is barred by limitation;
(v) ...
(vi) ...
The law thus ordains that interest of a tenant in his holding or a part thereof, as the case may be, shall be extinguished when he has been deprived of his possession and his right to recover the possession by a suit is barred by limitation. The said provision would squarely apply to the facts of the present case and right of the petitioners/their predecessor-in-title would be taken to have extinguished on expiry of 12 years from 30.06.1960, the date the land was mutated in the name of Kalyan since when respondents have been accepted to be or held to have been in possession of the disputed land.
A Division Bench of this court in Babu Singh Vs. state of Rajasthan 2002 (1) WLC (Raj.) 490, was dealing with a case where original tenant Akura had transferred his tenancy rights in 1963 to one Nihal Singh, who in turn, sold his rights to Babu Singh, petitioner therein, in 1975 and put him in possession. Original tenant Akura was not in possession since transfer made by him in 1963, but since Akura was a member of Scheduled Caste, no right or interest of Akura passed to Nihal Singh in view of bar contained in Clause (b) of Section 42 of the Rajasthan Tenancy Act. Akura was thus held to have remained in possession of the disputed land on the basis of a void deed of transfer. Yet it was held that though the right to recover possession remained with tenant but it was subject to Section 63(1)(iv) of the Rajasthan Tenancy Act. If he fails to sue for recovering possession within 12 years from the date the transferee under void transfer was put in possession, and his suit for recovering that possession has become barred by time, his tenancy rights otherwise extinguishes in terms of Section 63(1)(iv) of the Rajasthan Tenancy Act. The suit filed by widow of Akura for recovery of possession thus was held to be time barred and not maintainable as the tenancy rights of her husband had already become extinguished.
Let me now examine the judgments cited by Shri N.K. Maloo, learned Senior Counsel. In Santosh, supra, although the Supreme Court held that declaratory suit filed in that case would not be barred by limitation as a fraud puts an end to everything. There can be no quarrel with the proposition of law laid down therein but that is not the right answer to the question posed in the present case. No observation has been made by the Supreme Court with regard to suit for ejectment and recovery of possession. In that case, a fraudulent decree of family partition was obtained on 26.03.1985 by deceiving a widow and obtaining her thumb impression imparting a wrong impression that it was being so obtained for mutating the property of her husband in her name. The widow filed a suit for declaration. It was in those facts, their Lordships held that a fraud puts an end to everything. Such are not the facts of the present case.
In A. Shanmugam, supra, though the observation was made by the Supreme Court that the court must ensure that there is no incentive for wrong doer in the temple of justice as the truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. That observation was also made in the facts of that case and would perhaps have no application to the present matter, where the plaintiff-petitioners have by their own inaction, lost their remedy, having filed the suit with enormous delay of 36 years.
In Md. Mohammad Ali, supra, a suit for declaration of title of property was filed and it was held that the plaintiff has to only prove his title and not his possession.
The Division Bench of this Court in Buddha, supra, laid down certain guidelines to be followed while giving effect to provisions of Section 135 of the Rajasthan Land Revenue Act to alter the land records through mutation. We in the present case are not concerned with the manner in which the mutation was attested in order to examine the correctness of the mutation. The plaintiff-petitioners will have to first overcome the hurdle of limitation and unless that barrier is crossed, the court cannot go into the legality of the mutation entry. The Single Bench judgment of this court in Kamad and Others, arose out a case where the plaintiffs, who were members of the Scheduled Castes, were khatedar-tenant upto 13.09.1963 and defendants, who were neither the members of Scheduled Caste nor Scheduled Tribe, claimed their right on the basis of alleged sale made in their favour on 13.09.1963. The plaintiff filed a suit on 10.12.1970 for recovery of possession. The suit was obviously within limitation on plain reading of Section 83 of the Rajasthan Tenancy Act read with Entry 23 of the third schedule appended to the Rajasthan Tenancy Act.
The Gujarat High Court in Niranjan Lal Amrit Lal, supra, while considering the point of limitation, held that Article 65 would apply in a suit for possession based on title against trespasser because relief of possession is main relief and it would not be affected by lesser period of limitation applicable to ancillary reliefs.
Contention that as per Article 65 of the Schedule appended to the Limitation Act, the period of limitation in this case should begin from the date possession of the defendants became adverse to the plaintiff even though such limitation may be 12 years and since the defendants have not set up a case of adverse possession. So long as they do not do so, the limitation would not start to run, is noted to be rejected as the Rajasthan Tenancy Act is special Statute, and is a complete Code in itself. For whatever it has specifically provided, this special law shall prevail on the general law.
The Rajasthan Tenancy Act, as would be evident from its preamble, this is Act to consolidate and amend the law relating to tenancies of agricultural lands, and to provide for certain measures of land reforms and matters connected therewith. Section 7 of the Act provides that in respect of the land held by the tenants directly from the State Government, the provisions of this Act shall apply, unless expressly provided otherwise, as if the State Government were the landholder acting through the Tehsildar.
Section 88 of the Act provides that any person claiming to be a tenant or a co-tenant may sue for a declaration that he is a tenant or for a declaration of his share in such joint tenancy. Section 89 provides that at any time during the continuance of a tenancy, the tenant or a landholder other than the State Government may sue for declaration as to all or any of the matters enumerated therein. Section 91 provides for a suit for declaration of the rights and Section 92A provides for a suit for injunction. Section 183 provides for a suit for ejectment of certain trespassers and recovery of possession. Section 207 of the said Act provides that all suits and application of the nature specified in the Third Schedule appended to the said Act shall be heard and determined by a revenue court and no court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. Section 208 provides that provisions of the Code of Civil Procedure, except provisions inconsistent with anything in this Act, so far as the inconsistency extends, the provisions applicable only to special suits or proceedings outside the scope of this Act, and provisions contained in List I of the Fourth Schedule, shall apply to all suits and proceedings under this Act, subject to the modifications contained in List II of the Fourth Schedule. Section 214 of the Rajasthan Tenancy Act provides for limitation in cases filed under this Act and it is with reference to this Section that Third Schedule has been appended to the Act, which in its clause 23 provides 12 years as the period of limitation for filing the suit for ejectment of trespasser from the date when the cause of action arises. Under Clause 23-A three years for suit for recovery of possession or for compensation or for both, from the date of wrongful ejectment or dispossession takes place or tenant is prevented from obtained possession of his holding or any part thereof, which ever may be later, is provided as the limitation. The suit, which was filed by the plaintiff in the present case, as would be evident from the copy of the plaint filed at Annexure-1 was a combined suit file under Sections 88, 89, 183 and 188 and in Entry 23, three years has been prescribed as the period of limitation for suit for ejectment of trespasser, from the date when the cause of action arises.
Analysis of the various provisions of the Rajasthan Tenancy Act, thus shows that it is a complete Code in itself and therefore when the period of limitation is prescribed by the third Schedule of the Tenancy Act, it is this provision contained in such schedule, which would apply and not the provisions of Article 64 or 65 of the Schedule appended to the Limitation Act.
Rent Control Act is a special legislation and the provisions contained in Section 18 of the Act has been purposely engrafted therein to provide speedy and summary remedy to the parties wherefrom this Act applies regardless of whether such parties are entitled to benefits of the provisions contained in Chapter II and III of the Act. This is therefore a special Legislation. Section 18 start with non-obstante clause, an overriding effect has been given to this enactment over any other enactment. Therefore this Act will prevail over general provisions of law including the Code of Civil Procedure in so far as the forum provided to landlord and tenant for adjudication of their dispute. The Supreme Court in Pradeep Oil Corporation Vs. Municipal Corporation of Delhi and Another (2011) 5 SCC 270, was dealing with the provisions of Sections 2 and 3 of the Government Grants Act, 1895, which gives an overriding effect over Transfer of Property Act, 1882. Accordingly, the rights and obligations of the parties would be governed by the terms of the provisions of the Government Grants Act, 1895, whereunder the Government is entitled to impose limitations and restrictions upon the grants and other transfer made by it or under its authority.
Similar view was expressed by the Supreme Court in Vilas Pandurang Pawar and Another Vs. State of Maharashtra and Others (2012) 8 SCC 795, in the context of bar on the ground of anticipatory bail under Section 18 of the of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, holding that this being a special Act, cannot be easily brushed aside by elaborate discussion of evidence.
In view of the above discussion, the writ petition is dismissed with no order as to costs. This also disposes of the stay application.
(Mohammad Rafiq) J.
//Jaiman//45 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW