Rajasthan High Court - Jodhpur
Prem Singh & Ors vs B.O.R. & Ors on 4 October, 2013
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
S.B.CIVIL WRIT PETITION NO.624/2000
Prem Singh & Ors. vs. The Board of Revenue & Ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B.CIVIL WRIT PETITION NO.624/2000
Prem Singh & Ors. vs. The Board of Revenue & Ors.
Date of Order : 4th October, 2013
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr M.S.Singhvi, Sr. Advocate assisted by
Mr Varun Singhvi
Mr Manish Patel for the petitioners
Mr Sundeep Bhandawat, for the respondents
BY THE COURT:
This writ petition has been preferred by the petitioners against the order passed by the Board of Revenue, Ajmer in second appeal preferred by the petitioners under section 224 of the Rajasthan Tenancy Act, 1955 (for short 'the Act of 1955' hereinafter), while challenging the order dated 11.03.1998 passed by the Revenue Appellate Authority and the order dated 16.01.1997 passed by SDO, Jodhpur.
S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 2 Brief facts of the case are that the petitioners filed a revenue suit under section 88 and 188 of the Act of 1955 for declaration of khatedari rights and permanent injunction, while claiming that father of the petitioners Heer Singh was granted patta by the Erstwhile State of Jodhpur on 11.04.1950 for the land falling in Khasra No. 511 measuring 7/3 bighas and Khasra No. 512 measuring 29 bighas of village Chainpura, Mandore. It was alleged in the suit that the land of Khasra No.511 was recorded in the name of petitioner Nos. 1 and 2 only while excluding the petitioner No.3 and the land of Khasra No.512 was recorded as Government land, whereas the land of Khasra No.513 was recorded as Rasta.
While claiming possession over the land of Khasra Nos. 511, 512 and 513, it was alleged that the land of Khasra Nos. 512 and 513 has wrongly been recorded as Government land and Rasta and the name of the petitioner No.3 has not been recorded as Khatedar of land of Khasra No.511, S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 3 though names of his two brothers have been recorded. It was prayed that the petitioners be declared as Khatedars of land of Khasra Nos.512 and 513 and name of the petitioner No.3 be entered as Khatedar of land of Khasra Nos. 511, 512 and 513 and respondents be restrained by way of permanent injunction from dispossessing the petitioners from the land of Khasra Nos. 511, 512 and 513 of village Chainpura, Mandore.
In the said suit, a reply was filed by the State Government through Tehsildar, Jodhpur, wherein it was stated that patta was issued by the Jodhpur Riyasat in the name of father of the petitioners in respect of lands of Khasra Nos. 511 and 512 but in that patta, lands of Khasra No. 513 was not mentioned. It was also stated in the reply that in the revenue record, the land of Khasra No. 512 measuring 20 bighas is recorded as Siway Chak and the land of Khasra No.513 is recorded as Rasta (Marg) in the revenue records.
Before the SDO, Jodhpur, in support of the S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 4 revenue suit, the petitioners got recorded the statements of four witnesses including the petitioner Nos.2 and 3, however, no evidence was led on behalf of the State Government. During the pendency of the suit, the petitioners preferred an application under sections 65 and 66 of the Indian Evidence Act seeking permission to lead secondary evidence on the ground that as the original patta issued in favour of father of the petitioners for the lands of Khasra Nos. 511 and 512 is not available, therefore, the petitioners be allowed to produce the photostat of the said patta in secondary evidence. The said application was rejected by the SDO on 16.08.1996.
The learned SDO, after hearing the parties, dismissed the suit preferred by the
petitioners vide order dated 16.01.1997. Aggrieved with the order of the learned SDO, the petitioners preferred an appeal before the Revenue Appellate Authority, however, the learned Revenue Appellate Authority dismissed the said appeal vide order dated 11.03.1998, against which, the petitioners preferred S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 5 a second appeal before the Board of Revenue, however, the same was dismissed by the Board of Revenue vide order dated 23.09.1998 and the review petition preferred by the petitioners had also been rejected by the Board of Revenue on 29.09.1999.
Being aggrieved with the orders passed by the courts below, the petitioners have preferred this writ petition.
The learned counsel for the petitioners has argued that the orders passed by the courts below are contrary to the facts and law and suffer from error apparent on the face of the record as the learned courts below have committed serious error in dismissing the suit, appeals as well as the review petition filed by the petitioners and, therefore, the same are liable to be set aside.
The learned counsel for the petitioners has also argued that the only ground, on which the petitioners were non-suited by the courts below, was that the petitioners have failed to produce the original patta issued in the name of their father, S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 6 whereby the Khatedari rights have been granted by the Erstwhile State of Jodhpur (Riyasat) for Khasra Nos. 511 and 512 of village Chainpura, Mandore. The learned counsel for the petitioners has contended that the learned courts below has failed to take into consideration that when the State, in its reply filed before the SDO in response to the revenue suit filed by the petitioners, has admitted the issuance of the patta in favour of the father of the petitioners in respect of land of Khasra Nos. 511 and 512, the petitioners were not required to prove the said fact or the patta issued in favour of their father. The learned counsel for the petitioners has argued that as per the provisions of Order 12 Rule 6 of the Code of Civil Procedure, the petitioners were not required to prove the patta issued in favour of their father in respect of land of Khasra Nos.511 and 512 in view of the admission made by the respondent-State in its reply and the learned SDO was required to pass a decree in favour of the petitioners declaring them as Khatedars of the land in question. In support of the S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 7 above argument, the learned counsel for the petitioners has placed reliance on the decisions of Hon'ble Supreme Court in Calcutta Port Trust vs. Shalimar Tar Products Ltd., 1991 Supp (2) SCC 513; Uttam Singh Dugal & Co. Ltd. vs. Union Bank of India & Ors., AIR 2000 SC 2740; and Charanjit Lal Mhera & Ors. vs. Kamal Saroj Mahajan (Smt) & anr., (2005) 11 SCC 279.
The learned counsel for the petitioners has also argued that the learned SDO dismissed the suit preferred by the petitioners, while treating it as barred by limitation but as no limitation is prescribed in the Third Schedule of the Act of 1955 for filing suit for declaration, the said finding of the learned SDO was absolutely without jurisdiction and the Revenue Appellate Authority as well as the Board of Revenue have erred in confirming the said finding.
The learned counsel for the petitioners has invited the attention of this Court to Annexure-7 - the copy of patta issued in favour of the father of the petitioners and has also invited the attention of the S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 8 Court to certain documents filed by them along with the application during the pendency of the writ petition and has argued that in the Khatoni of village Chainpura pertaining to Samvat year 1999, the father of the petitioners was shown in possession of the land of Khasra Nos. 511 and 512. The learned counsel for the petitioners has also placed reliance on Annexure-16, a patta issued by the Urban Improvement Trust, Jodhpur dated 30.08.2008 in favour of the petitioner No.3 for a land measuring about 488.88 square feet in Khasra No.512 of village Chainpura and has argued that on the basis of Annexures-15 and 16, the claim of the petitioners for declaring them as Khatedars of the land in question is liable to be accepted and the judgments passed by the courts below are liable to be quashed and set aside.
It is noticed that no reply has been preferred on behalf of the respondent-State.
Heard learned counsel for the petitioner and perused the material placed on record by the S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 9 petitioner and the impugned orders.
The learned SDO has rejected the claim of the petitioners for grant of Khatedari rights mainly on the ground that the original patta dated 11.04.1950 issued in favour of the father of the petitioner is not produced in evidence and in absence of which, the petitioners could not be declared as Khatedar of lands in question. It is not in dispute that the original patta dated 11.04.1950 was not produced by the petitioners before the SDO as well as the appellate courts inasmuch as the application preferred by the petitioners for producing the photostat of the said patta, in secondary evidence, before the SDO was dismissed on 16.08.1996 but the petitioners have not challenged the said order before the appellate courts and the same has attained finality. In absence of original patta on record, it was not possible for the learned SDO as well as the appellate courts to come to the conclusion that the Khatedari rights were granted to the father of the petitioners by the Erstwhile State of Jodhpur for the land falling in S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 10 Khasra Nos. 511 and 512 of the village Chainpura, Mandore.
Even from perusal of Annexure-7- photostat of the patta produced along with this writ petition, it is not borne out that which authority under which law had granted Khatedari rights to the father of the petitioners. Though in the written statements, filed before the SDO in response to the revenue suit, the respondent-State had admitted that the patta in respect of Khasra Nos. 511 and 512 was issued in favour of their father on 11.04.1950 but it has not been stated that under which law and by which authority, the patta was issued. For the purpose of grant of Khatedari rights, the petitioners have to prove that the patta was issued by the competent authority under the provisions of a statute, whereby absolute Khatedari rights were granted to the father of the petitioners. Simply because the Tehsildar has admitted that the patta was issued in the name of the father of the petitioners for the land of Khasra Nos. 511 and 512 S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 11 without disclosing that under which law and by which authority, the patta was issued, the admission of the Tehsildar cannot be taken as a proved fact of grant of Khatedari rights to the father of the petitioners for the land of Khasra Nos. 511 and 512.
Moreover, from the plain reading of the plaint as well as the evidence produced on behalf of the petitioner, it is clear that the petitioners have failed to disclose that which authority, under which law, has issued patta in favour of the father of the petitioner. The petitioners have also failed to prove the possession of their father or themselves over the land in question by producing documentary evidence. The oral evidence produced by petitioners has not been relied by the courts below and after perusing the same, this Court finds that the courts below has rightly done so.
The documents filed by the petitioners, during the pendency of the writ petition, are taken into consideration and this Court is of the opinion that the same are of no help to the petitioner S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 12 because in the Khatoni pertaining to the Samwat year 1999, the father of the petitioner was shown in the possession of the lands of Khasra Nos. 511 and 512 but the petitioners have not been able to prove that under which provision of law, the father of the petitioner was entitled for Khatedari rights for the lands of Khasra Nos. 511 and 512 on the basis of possession only.
The patta issued by the Urban Improvement Trust in favour of petitioner No.3 under section 90-B of the Land Revenue Act, 1956, in the year 2008 is also of no help to the petitioners because from the perusal of the patta, it has not been borne out that whether the said patta has been issued while treating the petitioner No.3 as Khatedar or trespasser over the land of Khasra No.512.
Though the learned SDO erred in treating the suit preferred by the petitioners for declaration of Khatedari rights as time barred because in the Third Schedule of the Act of 1955 no limitation is provided for filing a suit for declaration, but in the overall facts S.B.CIVIL WRIT PETITION NO.624/2000 Prem Singh & Ors. vs. The Board of Revenue & Ors. 13 and circumstances of this case, this Court is not inclined to exercise its discretion under Articles 226 and 227 of the Constitution in the absence of concrete and reliable evidence regarding the grant of Khatedari for the land in question in favour of the father of the petitioners.
In view of the above discussions, this Court does not find it to be a fit case for interference while exercising powers under Articles 226 and 227 of the Constitution of India. Hence, the writ petition preferred by the petitioners fails and is hereby dismissed. There shall be no order as to costs.
[VIJAY BISHNOI],J.
m.asif/-