Rajasthan High Court - Jodhpur
Lrs Of Badiya vs State Of Rajasthan & Ors on 28 August, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 724 / 2017
Legal Representatives of Late Sh. Badiya , Since deceased through
legal representatives-
1/1 Hanifa W/o Badiya
1/2 Gagan Khan S/o Badiya, Since Deceased Through Legal
Representatives;
1/2/1. Sanwan Khan S/o Gagan Khan
1/2/2. Sumar Khan S/o Gagan Khan
1/2/3. Kabool Khan S/o Gagan Khan
1/2/4. Fakir Khan S/o Gagan Khan
1/2/5. Gulla Khan S/o Gagan Khan
1/2/6. Aarab Khan S/o Gagan Khan, and
1/2/7. Magan Khan S/o Gagan Khan, All Appellants No. 1/2/1 to
1/2/7, by Caste Muslim, Resident of Village Joranada, Tehsil Shiv,
District Barmer (Raj).
1/3 Ishaq Khan S/o Badiya
1/4 Ismile Khan S/o Badiya
1/5 Shakoor Khan S/o Badiya
1/6 Ishan Khan S/o Badiya
1/7 Fatan Khan S/o Badiya
1/8 Ami Alias Ashi D/o Badiya.,
All Appellants No. 1/3 to 1/8, by Caste Muslim, Resident of Village
Joranada, Tehsil Shiv, District Barmer (Raj).
----Appellant
Versus
1. State of Rajasthan Through Tehsildar, Shiv District Barmer.
2. The Board of Revenue for Rajasthan At Ajmer.
3. Sh. Jagmal Singh S/o Sh. Inder Singh, By Caste Rajput,
Resident of Village Joranada (Dhani), Tehsil Shiv, District Barmer.
(2 of 4)
[SAW-724/2017]
4. Sh. Mishra Ram S/o Sh. Basta, By Caste Mali, Resident of
Village Shiv, Tehsil Shiv, District Barmer.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. TS Champawat
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG Judgment Per Hon'ble Mr. Justice Gopal Krishan Vyas 28/08/2017 In this appeal filed by the appellants under Rule 18 of the Rajasthan High Court Ordinance, the appellants are challenging the judgment dated 1.6.2017 passed by the learned Single Judge in SBCWPNo.82/1999.
As per the facts of the case the plaintiff late Badiya preferred a suit for declaration and injunction against the respondents under Section 88 and 188 of the Rajasthan Tenancy Act stating therein that he was having land in Khasra Nos.557, 717, 776 and 690 in village Jorana, Tehsil Shiv, District Barmer but when he went to Gujarat due to repeated drought with is livestock, the revenue authorities initiated proceedings under Section 63(8) of the Rajasthan Tenancy Act observing that owner of the land has gone to Pakistan and declared the land as Government land vide order dated 14.6.1968 and further the land was allotted to the private respondents, therefore, prayed for declaration of his Khatedari rights for the said land alongwith injunction. The suit was contested by the State and the private respondents on the ground (3 of 4) [SAW-724/2017] that after inquiry it is found that the owner of the land has went to the Pakistan and declared the land as government land vide order dated 14.6.1968 and further submitted that land has already been allotted to the private respondents. Therefore, there is no right remained with him for claiming Khatedari rights for the land in question.
The suit was filed in the year 1973, but after due trial, the SDO, Barmer dismissed the suit vide judgment dated 16.4.1979. The judgment of the SDO was challenged by the appellants before the Revenue Appellate Authority, but the appeal was dismissed vide order dated 29.9.1995 and further in second appeal, the learned Board of Revenue dismissed the appeal video order dated 2.4.1997 and further the review petition was dismissed vide order dated 30.9.1997.
The appellants preferred the writ petition before the learned Single Judge and challenged the aforesaid judgments, but learned Single Judge after taking into consideration entire facts of the case and the judgment of Hon'ble Supreme Court in the case of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar Vs. Chandran & Ors reported in (2017) 3 SCC 702 held that the suit filed by the appellant Badiya for declaration not for seeking relief of possession, was not maintainable and was liable to be dismissed.
The learned Single Judge while considering the entire facts and fact that there is concurrent finding right from SDO court to Board of Revenue, refused to interfere in the writ petition and dismissed the same.
(4 of 4) [SAW-724/2017] After perusing the judgment of the learned Single Judge, we are in full agreement with the finding given by the learned Single Judge that concurrent finding of fact given by the SDO, Barmer, which is further upheld by the Revenue Appellate Authority and Board of Revenue, does not call for any interference.
In view of the above, the instant special appeal is hereby dismissed.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. cpgoyal/ps