Narayan S/O Late Prabhudayal vs Bhagwan S/O Motiram ... on 4 August, 2023

[Cites 33, Cited by 0]

Rajasthan High Court - Jaipur

Narayan S/O Late Prabhudayal vs Bhagwan S/O Motiram ... on 4 August, 2023

Bench: Ganesh Ram Meena

[2023:RJ-JP:16756]

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Civil Writ Petition No. 4688/2019

1. Narayan S/o Late Prabhudayal, Aged About 58 Years,
2. Smt. Ganga Devi W/o Late Prabhudayal, aged about 80
Years,
Both are resident Of Village Khatushyamji, Tehsil
Dantaramgadh, District Sikar (Raj.)
----Plaintiff/Petitioners
Versus
1. Bhagwan S/o Motiram,
2. Smt. Patasi W/o Asharam,
Both are Resident Of Village Khatushyamji, Tehsil
Dantaramgadh, District Sikar (Raj.)

...Defendant/Respondent
3. Bhanwari W/o Late Damodar
4. Shri Ram S/o Late Damodar,
5. Nirmla D/o Late Damodar,
6. Urmila D/o Late Damodar (Minor)
7. Durga D/o Late Damodar (Minor), Represented (both are
represented through Natural Guardian And Mother Smt.
Bhanwari Devi)
8. Smt. Gayatri Devi W/o Late Kishanlal,
9. Manish S/o Late Kishanlal,
10. Nand Kishor S/o Late Kishanlal
11. Vasudev S/o Late Kishanlal
12. Smt. Dropadi Devi D/o Late Prabhudayal
13. Smt. Kalawati Devi D/o Late Prabhudayal
14. Mahaveer Prasad H/o Smt. Santosh Devi, (Died On
06.11.2011)
15. Vimla Devi D/o Santosh Devi,

All are Resident Of Village Khatushyamji, Tehsil
Dantaramgadh, District Sikar (Raj.)

...Plaintiff/Respondents

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16. Madanlal S/o Late Pokhar,
17. Bhagwan Sahai S/o Late Pokhar,

Both are Resident Of Village Khatushyamji, Tehsil
Dantaramgadh, District Sikar (Raj.)

...Defendant/Respondents
18. State of Rajasthan, Through Tehsildar Dantaramgadh,
District Sikar (Raj.)

...Defendant/Respondent
19. Rajendra Prasad S/o Shyojiram, By Caste Jat, Resident Of
Village Khatushyamji, Tehsil Dantaramgadh, District Sikar
(Raj.)
----Respondent
Connected With
S.B. Civil Writ Petition No. 10925/2019
Rajendra Prasad Son Of Shri Shyojiram, Aged About 50 Years,
Resident Of Khatushyamji, Tehsil Dantaramgarh, District Sikar
(Raj.)
----Petitioner
Versus
1. Bhagwan Son Of Shri Moti Ram,
2. Smt. Patasi Wife Of Shri Asha Ram,
Both Resident Of Khatushyamji, Tehsil Dantaramgarh,
District Sikar (Raj.)
...Defendants/Non-petitioners
3. Prabhu Dayal, Son Of Shri Sanwar Mal
(Deceased through LRs)
3/1. Narayan, Son Of Shri Prabhu Dayal
3/2. Damodar, Son Of Shri Prabhu Dayal
(Deceased through LRs)
3/2/1. Bhanwri, W/o Damodar
3/2/2. Shriram, S/o Damodar
3/2/3. Nirmala, D/o Damodar
3/2/4. Urmila D/o Damodar
3/2/5. Durga D/o Damodar, Minor,

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(Sl. No.3/2/4 and 3/2/5 are minors, through natural
guardian Mother Smt. Bhanwari Devi
3/3. Kishan Lal, (Deceased Through Lrs)
3/3/1. Smt. Gayatri Devi, W/o Kishan Lal
3/3/2. Manish, S/o Kishan Lal
3/3/3. Nand Kishore, S/o Kishan Lal
3/3/4. Vasudev, S/o Kishan Lal
3/4. Smt. Ganga Devi, Wife Of Prabhu Dayal
3/5. Smt. Dropadi Devi, D/o Prabhu Dayal
3/6. Smt. Kalawati Devi, D/o Prabhu Dayal
4. Mahaveer Prasad Husband Of Smt. Santosh Devi
5. Vimla Devi Daughter Of Smt. Santosh Devi,

All Residents Of Khatushyamji, Tehsil Dantaramgarh,
District Sikar (Raj.)

...Plaintiff/Non-petitioners
6. Madan Lal Son Of Shri Pokhar,
7. Bhagwan Sahai Son Of Shri Pokhar,

Both are Residents Of Khatushyamji, Tehsil
Dantaramgarh, District Sikar (Raj.)
8. State Of Rajasthan, Through Tehsildar, Dantaramgarh,
District Sikar (Raj.)
----Defendants/Non-petitioners

For Petitioner(s) : Mr. M.M. Ranjan Sr. Advocate
Mr. Ashok Kumar Pareek
Mr. Ajay Gupta (in SBCW P.
No.10925/2019)
For Respondent(s) : Mr. R.K. Agarwal, Sr. Advocate
Mr. Himanshu Sogani
Mr. Shubham Kumar Sharma
Mr. Ajay Gupta (in SBCW P.
No.4688/2019)

HON'BLE MR. JUSTICE GANESH RAM MEENA

Order

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Date of Order ::: July 17, 2023
Date of Pronouncement ::: August 04, 2023

1. Since in both the writ petitions there is a

challenge to the order dated 03.10.2018 passed by

the Board of Revenue, hence, both the writ petitions

are being decided by a common order.

2. Being aggrieved by the judgment and decree

dated 03.10.2018 passed by the learned Board of

Revenue, Rajasthan, Ajmer (for short 'the Second

Appellate Authority') in Second Appeal

No.894/2016/Sikar, the petitioners- Narayan & Smt.

Ganga Devi, have preferred SBCW P. No.4688/2019. By

the Judgment dated 03.10.2018 the Second Appellate

Authority allowed the appeal of the respondents/

defendants and set-aside the judgment and decree

dated 02.02.2016 passed by the Court of learned

Revenue Appellate Authority, Jaipur (for short 'the

First Appellate Authority') in Appeal

No.166/2011/223, whereby the First Appellate

Authority affirmed the judgment and decree dated

28.03.2003 passed by Court of learned Sub Divisional

Officer, Dantaramgarh, District Sikar (for short

'the trial Court') in Revenue Suit No.88/1998. The

trial court decreed the suit of the

plaintiff/petitioners filed under Sections 88 and

188 of the Rajasthan Tenancy Act, 1955 (for short

'the Act of 1955') for declaration as khatedars,

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permanent injunction and for cancellation of the

sale deed dated 22.07.1988.

3. The writ petition No.10925/2019 has been

filed by the petitioner- Rajendra Prasad assailing

the same judgment of the Second Appellate Authority

dated 03.10.2018. The petitioners in this petition

are the persons who subsequently purchased the land

from the respondents after they were declared as

khatedars of the land in question by the trial

court.

4. Brief facts relevant for consideration are

that the original plaintiff Prabhu Dayal- the father

of the present petitioner No.1- Narayan and the

husband of the petitioner No.2- Smt. Ganga Devi

filed a suit for declaration as khatedars of the

land bearing Khasra No.1884 (New Khasra No.2656)

measuring 11 bigha 9 biswa (for short 'the land in

question') situated in Village Khatushyamji, Tehsil

Dantaramgarh, District Sikar also for permanent

injunction as well as for cancellation of the sale-

deed dated 22.07.1988 (by the sale deed dated

22.07.1988 the aforesaid land was sold by

defendants/ respondents- Madan Lal, Bhagwan Sahai

and Barji to purchasers namely; Bhagwana Ram and

Smt. Patasi). The suit was filed with the averments

that the land in question was in cultivation of

plaintiff being tenant since before the enforcement

of the Act of 1955. It was further averred that the

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name of the plaintiff has been mentioned in the

khasra girdawari and he has paid the land revenue

being a tenant of the land in question. It was

further stated that though the name of Pokhar-

predecessor of the respondents/ defendants was

entered in the revenue record as Khatedar tenant but

the suit land was under cultivatory possession of

the plaintiff/petitioners being a tenant and Pokhar

or his legal representatives and the respondents/

defendants never remained in cultivatory possession

of the land in question. It was alleged in the

plaint that after the death of Pokhar his legal

representatives illegally and without notice of

plaintiff got mutated the land in question in their

names on 20.12.1987 and thereafter they sold the

land by registered sale deed dated 22.07.1988 to

Madanlal, Bhagwan Sahai and Barji. It was further

alleged that the revenue record was diverted without

the knowledge and intimation to the plaintiff. It

was also stated in the plaint that prior to the

commencement of the Act of 1955 the land was

recorded in the names of Radha Kishan and Devi Sahay

and the said land was declared as Khalsa land along-

with other land and thereafter the name of Pokhar

was illegally added in the revenue record as

khatedars of the land in question and thus prayed

for decreeing the suit in his favour.

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5. Separate written statements were submitted

on behalf of defendants No.1,2,3 and 4 to 5. In the

written statements it was specifically averred that

the defendants No.1 to 3 are in cultivatory

possession of the land in question and in the

revenue record the name of Pokhar- the father of

defendants No.1 to 3 is continuing as a khatedar and

the name of Pokhar also appears in the khasra

girdawari and the land revenue is also paid by them.

It was further stated that the defendants No.1 to 3

being the khatedars of the land, in a legal manner

executed a registered sale deed in favour of

defendants No.4 and 5 and after handing over the

actual physical possession of the land in question

to the purchasers they are in continuous possession

of the land in question. It was also stated that the

suit for cancellation of the sale deed is not

maintainable before the Revenue Court and thus they

prayed for dismissal of the suit.

6. The plaintiff submitted documents in

support of his claim. The trial court framed as many

as seven issues on the basis of the pleadings of the

parties. The trial court decreed the suit and

declared the plaintiff as khatedar of the land in

question and also decreed the suit for permanent

injunction vide judgment and decree dated 28.03.2003

observing that the defendants shall not interfere in

the cultivatory possession and the rights of the

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plaintiff over the land in question. A finding was

also given that the sale deed dated 22.07.1988 is

void and ineffective.

7. The defendants No.4 and 5-Bhagwana Ram and

Smt. Patasi, who purchased the land vide registered

sale deed dated 22.07.1988, filed an Appeal

No.166/2011/223 before the First Appellate Authority

assailing the judgment and decree dated 28.03.2003

passed by the trial court by which the suit of the

plaintiff/ petitioners was decreed for declaration

and permanent injunction. The First Appellate

Authority dismissed the appeal vide its judgment and

decree dated 02.02.2016 observing that the plaintiff

got khatedari rights even prior to filing of the

suit as proved from the khatoni of Samvat 2019 to

2022.

8. Against the judgment and decree of the

First Appellate Authority dated 02.02.2016, the

defendants/respondents- Bhagwana Ram and Smt. Patasi

preferred a Second Appeal No.894/2016/Sikar before

the Second Appellate Authority and raised the

following questions of law:-

"(i) Whether the courts below acted
illegally in conferring khatedari rights on
the plaintiff on the basis of adverse
possession?
(ii) Whether the finding of the courts
below that the plaintiff is continuing in
possession of the suit land from Samvat
2012 till the date of filing of suit are
perverse and illegal"

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The Second Appellate Authority decided both

the above mentioned questions of law i.e. questions

No.1 and 2 against the plaintiff/petitioners and

finally allowed the second appeal of the appellants

vide judgment dated 03.10.2018 and set aside the

judgments and decrees of both the learned courts

below.

9. Mr. M.M. Ranjan Sr. Counsel with Mr. Ashok

Kumar Pareek appearing for the petitioners/

plaintiff submitted that the Second Appellate

Authority reversed the judgments and decrees of the

trial court and the First Appellate Court after

framing and answering two questions of law. He

further submitted that the first question of law

No.1 framed by the Second Appellate Authority is

that whether khatedari rights can be conferred on

the basis of the adverse possession? He also

submitted that petitioners/ plaintiff claim for

khatedari rights is not based on adverse possession

but on possessory title having possession over the

land in question since prior to the commencement of

the Act of 1955. He further submitted that

petitioners/ plaintiff are claiming the right of

being declared a sub-tenant under section 19 of the

Act of 1955.

10. Counsel appearing for the respondents /

defendants submitted that it is a well settled law

that no khatedari rights can be conferred on the

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basis of adverse possession and the observations of

the Second Appellate Authority in regard to the

question of law No.1 is in consonance with the

settled law.

11. In a judgment delivered by the Full Bench

of this Court in Tara & Ors. Vs. State of Rajasthan

& anr., reported in AIR 2015 Rajasthan 179, wherein

the Full Bench of this Court has answered the

similar question observing that 'no person can

acquire right by adverse possession in the lands

which were resumed or are in the tenancy of the

tenants as khatedars. The limitation applicable

under the Rajasthan Tenancy Act, 1955 for filing

suit for possession against the trespasser will be

applicable. The Rajasthan Tenancy Act, 1955 being a

Special Act, will prevail and the provisions of

Section 27 of the Limitation Act will not apply for

claiming adverse possession on such lands'. By plea

of averse possession impliedly the title of opposite

party stands admitted. The concept of adverse

possession contemplates a hostile possession i.e. a

possession which is expressly or impliedly in denial

of the title of the true owner. Possession to be

adverse must be possession by a person who does not

acknowledge the other's rights but denies them. The

principle of law is firmly established that a person

who bases his title on adverse possession must show

by clear and unequivocal evidence that his

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possession was hostile to the real owner and

amounted to denial of his title to the property

claimed. Adverse possession is commenced in wrong

and is aimed against right. It is a matter of

fundamental principle of law that where possession

can be referred to a lawful title, it will not be

considered to be adverse.

In the case of T. Anjanappa & Ors. Vs.

Somalingappa & Anr., reported in (2006) 7 SCC 570,

the Hon'ble Apex Court has observed as under:-
"Adverse possession is that form of
possession or occupancy of land which is
inconsistent with the title of the rightful
owner and tends to extinguish that person's
title. Possession is not held to he adverse
if it can be referred to a lawful title. The
person setting up adverse possession may have
been holding under the rightful Owner's title
e.g. trustees, guardians, bailiffs or agents.
Such persons cannot set up adverse
possession:
"14. Adverse possession" means a
hostile possession which is expressly
or impliedly in denial of title of the
true owner. Under Article 65 of
the Limitation Act, burden is on the
defendants to prove affirmatively. A
person who bases his title on adverse
possession must show by clear and
unequivocal evidence i.e. possession
was hostile to the real owner and
amounted to a denial of his title to
the property claimed. In deciding
whether the acts, alleged by a person,
constitute adverse possession, regard
must be had to the animus of the person
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doing those acts which must be
ascertained from the facts and
circumstances of each case. The person
who bases his title on adverse
possession, therefore, must show by
clear and unequivocal evidence i.e.
possession was hostile to the real
owner and amounted to a denial of his
title to the property claimed....
15. Where possession could be referred
to a lawful title, it will not be
considered to be adverse. The reason
being that a person whose possession
can be referred to a lawful title will
not be permitted to show that his
possession was hostile to another's
title. One who holds possession on
behalf of another does not by mere
denial of that other's title make his
possession adverse so as to give
himself the benefit of the statute of
limitation. Therefore, a person who
enters into possession having a lawful
title, cannot divest another of that
title by pretending that he had no
title at all."
In the case of Kurella Naga Druva Vudaya

Bhaskara Rao V. Galla Jani Kamma @ Nacharamma,
kreported in (2008) 15 SCC 150, the Hon'ble Supreme
Court observed as under:-

"19. The defendant claimed that he had
perfected his title by adverse possession
by being in open, continuous and hostile
possession of the suit property from 1957.
He also produced some tax receipts showing
that he has paid the taxes in regard to
the suit land. Some tax receipts also
showed that he paid the tax on behalf of

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someone else. After considering the oral
and documentary evidence, both the courts
have entered a concurrent finding that the
defendant did not establish adverse
possession, and that mere possession for
some years was not sufficient to claim
adverse possession, unless such possession
was hostile possession, denying the title
of the true owner. The courts have pointed
out that if according to the defendant,
the plaintiff was not the true owner, his
possession hostile to the plaintiff's
title will not be sufficient and he had to
show that his possession was also hostile
to the title and possession of the true
owner. After detailed analysis of the oral
and documentary evidence, the trial court
and the High Court also held that the
appellant was only managing the properties
on behalf of the plaintiff and his
occupation was not hostile possession."
In Brijesh Kumar & Anr. Shardabai
(deceased) by Legal Representative & Ors., reported
in (2019) 9 SCC 369, the Hon'ble Supreme Court has
observed as under:-

"13. Adverse possession is hostile
possession by assertion of a hostile title
in denial of the title of the true owner as
held in M. Venkatesh [M.Venkatesh v. BDA,
(2015) 17 SCC 1 : (2017) 5 SCC (Civ) 387].
The respondent had failed to establish
peaceful, open and continuous possession
demonstrating a wrongful ouster of the
rightful owner. It thus involved question
of facts and law. The onus lay on the
respondent to establish when and how he
came into possession, the nature of his
possession, the factum of possession known

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and hostile to the other parties,
continuous possession over 12 years which
was open and undisturbed. The respondent
was seeking to deny the rights of the true
owner. The onus therefore lay upon the
respondent to establish possession as a
fact coupled with that it was open, hostile
and continuous to the knowledge of the true
owner. The respondent-plaintiff failed to
discharge the onus. Reference may also be
made to Chatti Konati Rao v. Palle Venkata
Subba Rao [Chatti Konati Rao v. Palle
Venkata Subba Rao, (2010) 14 SCC 316 :
(2012) 1 SCC (Civ) 452], on adverse
possession observing as follows: (SCC p.
322, para 15)
"15. Animus possidendi as is well
known is a requisite ingredient of
adverse possession. Mere possession
does not ripen into possessory title
until the possessor holds the
property adverse to the title of the
true owner for the said purpose. The
person who claims adverse possession
is required to establish the date on
which he came in possession, nature
of possession, the factum of
possession, knowledge to the true
owner, duration of possession and
that possession was open and
undisturbed. A person pleading
adverse possession has no equities in
his favour as he is trying to defeat
the rights of the true owner and,
hence, it is for him to clearly plead
and establish all facts necessary to
establish adverse possession. The
courts always take unkind view
towards statutes of limitation 5
(2019) 9 SCC 369 overriding property

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rights. The plea of adverse
possession is not a pure question of
law but a blended one of fact and
law."

12. The trial court decreed the suit of the

petitioners/ plaintiff vide judgment dated

28.03.2003 deciding the issues No.1 and 2 in favour

of the petitioners/ plaintiff observing that they

are entitled to be declared as khatedars of the land

in question on the basis of adverse possession and

further for decree of permanent injunction and the

Appellate Court without making any observations and

findings issue-wise upheld the judgment and decree

passed by the trial court.

13. In view of the above referred settled law

and also the arguments of the counsel appearing for

the petitioners/ plaintiff that petitioners/

plaintiff case for seeking khatedari rights is not

solely based on the adverse possession, the findings

of the trial court to the extent of allowing

khatedari rights on the basis of adverse possession

to the respondents /defendants is perverse and

contrary to law. Therefore, the answer to the

question of law No.1 by the Second Appellate

Authority does not call for any interference.

14. The Second Appellate Authority for disposal

of the second appeal filed by the respondents/

defendants also framed a question of law No.2 that

"whether the findings of the court below that the

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plaintiff is continuing in possession of the suit

land from Samvat 2012 till the date of filing the

suit are perverse and illegal?"

15. Counsel appearing for the petitioners/

plaintiff submitted that the land in question was

being cultivated by the petitioners /plaintiff since

before the commencement of the Act of 1955 and

onwards. The plaintiff claimed in the suit that he

is in cultivatory possession of the land in question

since long, so he acquired the khatedari rights and

his case either falls under section 19 of the Act of

1955 or otherwise on the basis of continuous

possession. To prove the possession over the land in

question at the time of commencement of the Act of

1955 and thereafter, they have submitted the copies

of Khasra Girdawari of Samvat 2009 to 2035, rent

receipts, site inspection report etc.

16. Counsel appearing for the respondents

/defendants submitted that even the khasra girdawari for Samvat 2009 to 2014 submitted before the trial court and also before this Court speak that Pokhariya @ Pokhar- the predecessor of the respondents No.16 and 17 was recorded as a sub- tenant with the entry of 'Bararah Sadar' as the khatedars/ gair-khatedars. The entries in the khasra girdawari for Samvat 2009 to 2014 clearly speaks that deceased Pokhar was the khatedar of the suit land and after his death mutation was opened in (Downloaded on 11/11/2023 at 06:55:10 PM) (17 of 47) [CW-4688/2019] favour of his successors. It has also come on record that the land was sold by the successors of deceased Pokhar to the subsequent purchasers prior to the filing of the suit by two of the appellants who are respondents No.1 and 2 in the present writ petition. Counsel also submitted that the findings of the trial court in regard to issue No.3 is not based on any documentary evidence as the Second Appellate Authority has given the finding after appreciating the material available on the record in a correct manner.

17. On perusal of the record available with the petitions it is found that the trial court has come to the conclusion that the petitioners/ plaintiff are in possession on the land in question as proved by khasra girdawari of the entries of Samvat 2014 to 2016, 2019 to 2022 and also the rent receipts of Samvat 2012 to 2025, 2030 to 2031, 2033 to 2036 etc. On perusal of khasra girdawari of Khasra No.2009 to 2014, which have been placed on the record with the petition, does not prove possession of the petitioners/ plaintiff over the suit land and the documents relied by the trial court to prove the possession of the petitioners/ plaintiff also does not prove their possession as a tenant, as is required under the provisions of the Act of 1955 for conferring the khatedari rights. For consideration (Downloaded on 11/11/2023 at 06:55:10 PM) (18 of 47) [CW-4688/2019] of the issue, the provisions of Section 15 and 19 of the Act of 1955 are quoted as under:-

"15. Khatedar tenants-- (1) Subject to the provisions of section 16 and clause (d) of Sub-section (1) of section 180 every person who, at the commencement of this Act, is a tenant of land otherwise than as a subtenant or a tenant of Khudkasht or who is, after the commencement of this Act, admitted as a tenant otherwise than a sub-tenant or tenant of Khudkasht or an allottee of land under, and in accordance with, rules made under section 101 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956) or who acquires Khatedari rights in accordance with provisions of this Act or of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 (Rajasthan Act VI of 1952) or of any other law for the time being in force shall be a Khatedar tenant and shall, subject to the provision of this Act be entitled to all the rights conferred; and be subject to all the liabilities imposed on Khatedar tenants by this Act:

Provided that no Khatedari rights shall accrue under this section to any tenant, to whom land is or has been let out temporarily in Gang Canal, Bhakra, Chambal or Jawai project area or any other area notified in this behalf by the State Government.

(2) Notwithstanding anything contained in sub-section (1) Khatedari rights shall not accrue there under to any person to whom land had been let out before the commencement of this Act by the State (Downloaded on 11/11/2023 at 06:55:10 PM) (19 of 47) [CW-4688/2019] Government in furtherance of the Grow More Food Campaign or under some special order subject to some specified conditions or in pursuance of some statutory or non-

statutory rules and who shall have, before such commencement, made a default in securing the objective of such campaign or a breach of any such order, condition or rule.

(3) Any person referred to in sub-section (2) may, within three years from the date of commencement of this Act and on payment of a court-fee of twenty five naye paise apply to the Assistant Collector having jurisdiction praying for a declaration that acquired Khatedari right under sub- section (1) in the land held by him. (4) Such application may be made on any of the following grounds, namely:

(a) that the land held by him was let out to him after the" commencement of this Act.

(b) that it was not let out to him in any of the circumstances specified in sub- section (2).

(c) that when the- land was so let out to him he was not apprised of such circumstances.

(d) that he had, before such commencement made no default or breach of the nature specified in sub-section (2).

(5) The Assistant Collector shall, upon the presentation of an application under sub-section (3), make inquiry in the prescribed manner and afford reasonable opportunity to the applicant of being heard and shall, if he does not reject the application , declare the applicant to have become Khatedar tenant of his holding (Downloaded on 11/11/2023 at 06:55:10 PM) (20 of 47) [CW-4688/2019] in accordance with and subject to the provisions of the subsection (I)."

"19. Conferment of rights on certain tenants of Khudkasht and sub tenants-- (1) Every person who, at the commencement of this Act--

(a) was entered in the annual registers then current as a tenant of Khudkasht or sub-tenant of land other than grove land, or

(b) was not so entered but was a tenant of Khudkasht or sub-tenant of land other than grove land.

shall as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1959, hereafter in this Chapter referred to as the appointed date, become, subject to the other provisions contained in this Chapter, the Khatedar tenant of such part of the land held by him as does not exceed the minimum area prescribed by the State Government for the purpose of clause (a) of sub-section (1) of section 130 or exceeds the maximum area from which such person is liable to ejectment under clause

(d) of the said sub-section of the said section and rights in improvements in that part of the said land shall also accrue to such person:

Provided that Khatedari rights or rights in improvements shall not so accrue--

(i) if such part of the said land is held from any of the persons enumerated in section 46, or

(ii) if such rights therein may not accrue under the proviso to sub-section (I) of section 15 or under section 15-A or under section 15-B or under section 16, or (Downloaded on 11/11/2023 at 06:55:10 PM) (21 of 47) [CW-4688/2019]

(iii) if such person has, after the commencement of this Act and before the appointed date, ceased to be such tenant of Khudkasht or subtenant by virtue of lawful surrender of abandonment in accordance with the provisions of this Act or because of his having been ejected in accordance with those provisions by and under the decree or order of a competent revenue court.

(1-A) Subject to the exceptions contained in the proviso to sub-section (1), every person referred to in that sub-section shall, as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1961, hereafter in this chapter referred to as the 'appointed day' become, subject to the other provisions contained in this chapter, the khatedar tenant of that part of land held by him in which he has not acquired Khatedari rights under sub- section (1) , before the appointed day, no proceeding for his (a) was entered in the annual registers then current as a tenant of Khudkasht or sub-tenant of land other than grove land, or (b) was not so entered but was a tenant of Khudkasht or sub-tenant of land other than grove land. shall as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1959, hereafter in this Chapter referred to as the appointed date, become, subject to the other provisions contained in this Chapter, the Khatedar tenant of such part of the land held by him as does not exceed the minimum area prescribed by the State Government for the purpose of clause (a) of sub-section (1) of section 130 or exceeds the maximum area from which such person is liable to ejectment under clause (d) of the (Downloaded on 11/11/2023 at 06:55:10 PM) (22 of 47) [CW-4688/2019] said sub-section of the said section and rights in improvements in that part of the said land shall also accrue to such person:

Provided that Khatedari rights or rights in improvements shall not so accrue-- (i) if such part of the said land is held from any of the persons enumerated in section 46, or

(ii) if such rights therein may not accrue under the proviso to sub-section (I) of section 15 or under section 15-A or under section 15-B or under section 16, or (iii) if such person has, after the commencement of this Act and before the appointed date, ceased to be such tenant of Khudkasht or subtenant by virtue of lawful surrender of abandonment in accordance with the provisions of this Act or because of his having been ejected in accordance with those provisions by and under the decree or order of a competent revenue court. (1-A) Subject to the exceptions contained in the proviso to sub-section (1), every person referred to in that sub-section shall, as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1961, hereafter in this chapter referred to as the 'appointed day' become, subject to the other provisions contained in this chapter, the khatedar tenant of that part of land held by him in which he has not acquired Khatedari rights under sub-section (1) , before the appointed day, no proceeding for his ejectment under clause (a) or clause

(d) sub-section (1) of section 180 shall have been started within the time limit prescribed by section 182-A or if on that day no such proceeding previously started might have been pending. ( l-AA)- Every person who on the 31st day of December, (Downloaded on 11/11/2023 at 06:55:10 PM) (23 of 47) [CW-4688/2019] 1969, was entered in the annual registers than current as the tenant of Khudkasht or subtenant or was not so entered but was a tenant of Khudkasht or sub-tenant of land other than grove land shall subject to the exceptions contained in the provisos to sub-section (1), as from the date of the commencement of the Rajasthan Tenancy (Amendment) Act, 1979, hereinafter in this Chapter referred to as the said date become, subject to the other provisions contained in this Chapter, the Khatedar tenant of that part of the land held by him in which he has not acquired Khatedari rights under sub-section (I) or sub-

section (1-A), if before the said date, no proceedings for his ejectment under clause

(a) or clause (b) of sub-section (1) of section 180 shall have been started with the time limit prescribed by section 182-A or if on that date, no such proceedings previously stated might have been pending:

Provided that no Khatedari rights shall accrue under this sub-section in the land which has been, or is liable to be declared surplus under any law relating to the imposition of ceiling on agricultural holdings:

Provided further that no Khatedari right shall accrue under this subsection on the land belonging to the scheduled caste or scheduled tribe but it shall not be the case if the sub-tenant is the member of scheduled caste or scheduled tribe:


Provided        also   that  acquisition of
Khatedari      rights under this subsection
shall be       subject to the provisions of

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                    (24 of 47)                    [CW-4688/2019]

section 17 of the Rajasthan Imposition of Ceiling on Agricultural Holding Act, 1973 (Rajasthan Act 11 of 1973) (2) Every tenant of Khudkasht or subtenant referred to in clause (b) of subsection (1) claiming that the rights mentioned in that sub-section accrued to him on the appointed date in the whole or any part of his holding shall within two years of that date and on payment of a court-fee of Fifty naye paise, apply to the Assistant Collector having jurisdiction, praying for a declaration that such rights accrued to him as aforesaid, and the provisions of sub-section (5) of section 15 shall apply to such application and such tenant of Khudkasht or sub-tenant shall not be regarded to have become the Khatedar tenant of his holding or part, as the case may be, until he has obtained the declaration so prayed for.

(2-A) (i) Every tenant of Khudkasht or sub-tenant claiming that the rights mentioned in sub-section (1-AA) accrued to him on the said date in the whole or any part of his holding shall within one year of the date and on payment of a court fee of fifty paisa, apply to the Assistant Collector having jurisdiction, praying for a declaration that such right accrued to him as aforesaid, and the provisions of subsection (5). of section 15 shall apply to such application.

(ii) Where no application referred to in clause (i) has been made by the tenant of Khudkasht or the sub-tenant to whom the rights of Khatedar tenant accrued under (Downloaded on 11/11/2023 at 06:55:10 PM) (25 of 47) [CW-4688/2019] sub-section (1--AA), the Assistant Collector having jurisdiction may on his own motion or otherwise within one year of the said date and after making an inquiry in the same manner as is prescribed for an inquiry under subsection (5) of section 15 and after affording a reasonable opportunity to the parties of being heard and on being satisfied that Khatedari rights accrued to such tenant of Khudkasht of sub-tenant under sub-section (1--AA), issue a declaration to that effect. (ii-a) Where no declaration has been obtained or issued under clause (i) or clause (ii) in the case of a tenant of Khudkasht or sub-tenant claiming that the rights mentioned in sub-section ( l--AA) accrued to him on the holding, the tenant or subtenant, as the case may be, may notwithstanding the expiry of the time laid down in those clauses, within such time, as may, by notification in the Official Gazette, be specified from time to time by the State Government and on payment of a court fee of fifty paise, apply to the Assistant Collector having jurisdiction, praying for a declaration that such rights accrued to him as aforesaid, and the provisions of sub- section (5) of section 15 shall apply to such application; and

(iii) Where no declaration has been obtained or issued under clause (i) or clause (ii) or clause (ii-a) such tenant of Khudkasht or sub-tenant shall not be regarded to have become the Khatedar tenant of his holding or part thereof, as the case may be.

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                     (26 of 47)                    [CW-4688/2019]




(iv)   Where    and   to    the   extent   such

declaration as aforesaid is made in favour of the tenant of Khudkasht or sub-tenant referred to in subsection (1-AA) , the Assistant Collector having jurisdiction shall on the application of any person entitled to any benefit by way of restitution, cause such restitution to be made as will place the person in the position to which he would be entitled as a result of the aforesaid declaration having been made in his favour excepting any claim to mesne profits, of any, for the period during which such person remained out of.possession, or compensation in any form whatsoever; and for this purpose, the Assistant Collector may make such orders as are just and reasonable and are required in the circumstances of the case.

(3) in respect of land in which rights accrue to him under sub-section (1) or subsection (I-A) or sub-section (1-AA)--

(a) every tenant of Khudkasht in relation to the estate-holder who let out such Khudkasht,

(b) and every sub-tenant, in relation to

(i) the State Government, if his tenant- in-chief held the land sub-let by the latter from the State Government, or

(ii) the estate-holder, if such tenant-in- chief held such land from an estate- holder, shall, as from date of accrual of Khatedari Rights be entitled to all rights conferred and be subject to all (Downloaded on 11/11/2023 at 06:55:10 PM) (27 of 47) [CW-4688/2019] liabilities imposed, on a Khatedar tenant by this Act.

(4) Every tenant of Khudkasht or subtenant to whom rights accrue under sub section (1) or sub-section (1-A) or subsection (1- AA) shall be bound to pay to his land holder compensation determined in accordance with the provisions of this Chapter:

Provided that such tenant or sub-tenant may, three years of the appointed date intimate in writing to the Assistant Collector having jurisdiction that he does not wish to acquire Khatedari rights on payments of such compensation, in which case he shall not acquire Khatedari rights or be liable to pay compensation and he shall continue as tenant of Khudkasht or sub-tenant as heretofore."

Though at the time of the commencement of the Act of 1955, the jamabandis showing the title of a person over the land were not prepared and the khasra girdawari were treated to be the basis of the ownership/ possession. In the present case the khasra girdawari of Samvat 2009 to 2014 in no manner shows that the petitioners/ plaintiff were ever in possession of the land in question.

18. The petitioners/ plaintiff are claiming the khatedari rights asserting their possession on the basis of khasra girdawari for the period after Samvat 2014 contending that in the remarks column (Downloaded on 11/11/2023 at 06:55:10 PM) (28 of 47) [CW-4688/2019] their names find place which prove their possession over the land in question.

Counsel for the respondents placed reliance on the judgment delivered by this Court in Deena & Ors. Vs. Board of Revenue & Ors., reported in 2008(1) WLC 404 in para 11 has observed that 'the name of the plaintiff Gyarsa was only in the column of remarks and therefore he could not be considered as sub-tenant of jagirdar'. Para 11 of the aforesaid judgment reads thus:-

"11. Even otherwise, jamabandi of Svt. 2027 to 2030 recorded on the basis of mutation dated 20.9.1960 under Section 19 of the Tenancy Act could not be taken as correct as in khasra girdawari of Svt. 2012 to 2014, names of jagirdars Jorawar Singh and Manohar Singh were recorded and the name of the plaintiff Gyarsa was only in the column of remarks and therefore he could not be considered as sub-tenant of jagirdar."

19. Counsel for the respondents/ defendants also placed reliance on judgment in case of Ramdayal & Anr. Vs. State of Rajasthan & Anr., reported in RLW 2007(1) Rajasthan 400, wherein it has been that the petitioner did not at all plead that he was entitled for khatedari rights by virtue of Section 15 of the Rajasthan Tenancy Act and therefore, the Board of Revenue was right in holding that the petitioners have not proved that he was in (Downloaded on 11/11/2023 at 06:55:10 PM) (29 of 47) [CW-4688/2019] cultivatory possession prior to Samvat 2012, the period corresponding to commencement of the Rajasthan Tenancy Act. Para Nos. 7 and 8 of the aforesaid judgment are quoted as under:-

"7. A perusal of the judgment passed by the first Revenue Court of the Assistant Collector indicates that he has accepted the claim of the plaintiff about his Khatedari rights over the land in dispute merely on the basis of Parcha Lagan Ex P-2 which was issued by the Assistant Settlement Officer. It may be true that mutation No. 12 was attested in favour of the plaintiff on 10.09.1975 but the Tehsildar by his order dt. 02.11.1977 set aside the said mutation. When the petitioner challenged the order dt. 02.11.1977, the matter has been scrutinised in all the Revenue Courts below. The claim of the plaintiff found favour with the first Revenue Court on the basis of the said Paracha Lagan. The Assistant Collector has found that the petitioner was recorded as Khatedar on the basis of prolonged possession similar to one Ram Swaroop. The copy of judgment dt. 01.07.1987 passed in favour of Ram Swaroop was produced for perusal of that Court. It was simply on this basis that the Assistant Collector found the case of the petitioner proved. No contrary document or argument has been produced before the Assistant Collector because the matter was proceeded ex-parte against the Government. In appeal, however the Authority scrutinsed the matter and held that the Assistant Settlement Officer had no power to issue Patta of the land in (Downloaded on 11/11/2023 at 06:55:10 PM) (30 of 47) [CW-4688/2019] dispute in favour of the plaintiff and confer Khatedari rights on him. The Authority succinctly stated the law on the subject that the plaintiff could not be recorded as Khatedar in the absence of either any allotment letter in his favour or an order of regularisation based on prolonged possession by a Competent Officer. Even if it is accepted that the Tehsildar committed illegality in suo moto setting aside such mutation, the plaintiff would still be required to show as to what was the legal foundation of his entitlement for being recorded him as Khatedar. The plaintiff cannot be allowed to take advantage of wrong entries made by the settlement. Therefore the Authority held that even the Tehsildar is assumed to have committed a mistake, yet that was no sufficient ground for passing a decree in favour of the plaintiff. When the matter was examined by the Board, it also found that the only basis on which the plaintiff claimed Khatedari right was his possession over the land but the documents on record in fact did not indicate that the plaintiff was in possession of the disputed land even prior to Samvat 2012. In fact, the Board found the Khasra Girdawaries of Samvat 2029 to 2032 indicated that the land was described as Siwai Chak. The mutation was attested in favour of the plaintiff on the basis of Parcha Lagan issued by the Assistant Settlement Officer on 16.05.1974. According to the Board, it was not a legal basis because when the plaintiff was claiming that he was recorded Khatedar on the basis of long possession, he was required to prove whether he was in possession even prior to Samvat 2012. The (Downloaded on 11/11/2023 at 06:55:10 PM) (31 of 47) [CW-4688/2019] Board therefore rightly held that the plaintiff failed to prove his case either under Section 13 or 15 or Section 19 of the Rajasthan Tenancy Act, the learned trial Court committed an error of law in decreeing the revenue suit.

8. I have carefully analysed the pleadings of the para 6 of the appeal filed before the Authority which has been heavily relied upon by the petition. All that has been stated in that para is that at the time of resumption of Jamidari, the plaintiff was recorded as Gair Maurusidar and no document has been produced by the plaintiff to show that he was recorded as such Gair Maurusidar. The pleading does not appear to have been happily worded but still the fact remains that the plaintiff was required to not only prove his case if at all he wanted to acquire Khatedari right by virtue of long possession but also plead such case. The plaintiff however did not set up any such plea which is evident from the perusal of the plaint of the suit which has been placed on record. It appears that the petitioner did not at all plead the case that he was entitled to Khatedari rights by virtue of Section 15 of the Rajasthan Tenancy Act. The Board, in my considered view was therefore right in holding that the petitioner has not proved that he was in possession over the disputed land prior to Samvat 2012, the period corresponding to commencement of the Rajasthan Tenancy Act. The cases which the petitioner is now seeking to develop with the help of the provisions of Rajasthan Jamidari and Veshwadari Abolition Act, 1959 describing the plaintiff as Gair Maurusidar at the (Downloaded on 11/11/2023 at 06:55:10 PM) (32 of 47) [CW-4688/2019] time of abolition of the State was nowhere in sight when the original suit was filed. Moreover the argument that the order of mutation could not be reviewed after two years and that the order not having been challenged in appeal has become final, were not raised in the original Court. In spite of these deficiencies, if they may be so called, and also the argument that the Tehsildar did not grant an opportunity of hearing prior to cancellation of mutation, the fact remains that to claim Khatedari right as rightly held by the Authority, the plaintiff has to show how he is entitled to claim to such Khatedari right. The Authority was correct in holding that decreeing the suit of the plaintiff would have the affect of reviving the order which was otherwise illegal. Only basis on which the plaintiff could be granted Khatedari rights was either under any allotment made in his favour by the competent authority or regularisation of his possession if at all it was accepted to a long possession on the basis of trespass, by the competent authority. Neither of them was there in the case of plaintiff. Objection of the learned Counsel for the petitioner is that in the case of the present nature even if mutation of Khatedari rights was wrongly recorded and mutation was wrongly attested, the only way available to the Collector was to make a reference to the Board of Revenue, cannot be sustained because the issue has been examined not only by the Authority but also by the Board of Revenue. Even if the matter has not reached to it by way reference under Section 229 of the Rajasthan Tenancy Act and Section 82 of the Land Revenue Act, the Board of Revenue did examine the matter (Downloaded on 11/11/2023 at 06:55:10 PM) (33 of 47) [CW-4688/2019] thread bare when it was brought before it by way of appeal at the instance of none other than the petitioner himself."

20. On critical scrutiny of the material available on the record and the findings given by the Second Appellate Authority in regard to question of law No.2, are just and proper and need no interference.

21. Sr. Counsel appearing for the petitioners/ plaintiff during the course of arguments referred the judgment dated 23.02.2018 delivered by the Division Bench of this Court in D.B. Special Appeal Writ No. 127/2007, Chhotu Vs. State of Rajasthan & Ors., submitting that the view of the SDM regarding declaration of khatedari rights has been upheld to the extent that three facts have to be considered for declaration of khatedari rights namely; the plaintiff must show his possession, secondly, he has to cultivate the land in question and thirdly, he has to pay the rent/ lagan for the period.

The revenue records submitted before the trial court and enclosed with the writ petitions the khasra girdawari for the relevant Samvat 2012 does not prove that the petitioners/ plaintiff were in possession of the land in question as a tenant or sub-tenant for seeking confirmation of khatedari rights under the provisions of the Act of 1955.

22. Sr. Counsel appearing for the petitioners /plaintiff also relied upon the judgment (Downloaded on 11/11/2023 at 06:55:10 PM) (34 of 47) [CW-4688/2019] dated 11.05.2018 delivered by the Division Bench of this Court in D.B. Civil Special Appeal No. 1200/2008, Rameshwar & Ors. vs. Board of Revenue, Rajasthan & Ors., wherein it has been observed that the Revenue Appellate Authority has invoked Section 15, in the alternative Section 19 or adverse possession for conferring khatedari rights of the plaintiff. The observations of the Division Bench in no manner help the petitioners/ plaintiff in view of their submissions made before this Court that they are not claiming the khatedari rights on the basis of adverse possession but they are seeking right in view of the possessory title. For seeking khatedari right one has to put his case in four corners of Sections 15 or 19 or Section 63 of the Act of 1955. The petitioners/ plaintiff themselves are not clear and specific that under which provisions of this Act they want conferment of their khatedari rights.

23. Sr. Counsel for petitioners/ plaintiff also relied upon the judgment delivered by the Hon'ble Supreme Court in Civil Appeal No.5853/2014 (Ramkaran (Dead) through Lrs & Ors. vs. State of Rajasthan & Ors.), decided on 30.06.2014, wherein it has been held that if there is a wrong possession and the real possession has expired under the Limitation Act then the proceedings of restoration has to be dismissed, meaning-thereby, the (Downloaded on 11/11/2023 at 06:55:10 PM) (35 of 47) [CW-4688/2019] defendants/ respondents have already forgotten their rights for restoration of their possession.

24. Since the petitioners /plaintiff, as has been observed above, could not prove their continuous possession by a reliable evidence, the issue of restoration of possession by the other party does not come in picture. Sr. Counsel has further relied upon the case of Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors., reported in (2019) 8 SCC 729, wherein the Hon'ble Supreme Court has observed as under:-

"60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the (Downloaded on 11/11/2023 at 06:55:10 PM) (36 of 47) [CW-4688/2019] concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession."

In M. Siddiq (D) through Lrs v. Mahant Suresh Das & Ors., reported in (2019) SCC Online SC 1440, the Hon'ble Apex Court has observed as under:-

"747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognisant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.

748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being 'nec vi nec claim and nec precario'. To substantiate a plea of adverse possession, the character of the possession (Downloaded on 11/11/2023 at 06:55:10 PM) (37 of 47) [CW-4688/2019] must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading paragraph 11(a), it becomes evident that beyond stating that the Muslims have been in long exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.

xx xx xx

752. In Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274, Justice R S Sarkaria, speaking for a three judge Bench of this Court noted that the concept of possession is "polymorphous. embodying both a right (the right to enjoy) and a fact (the real intention). The learned judge held:

"13. "It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of (Downloaded on 11/11/2023 at 06:55:10 PM) (38 of 47) [CW-4688/2019] "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.)."

25. The plaintiff/ petitioners in the suit also prayed for declaring the sale deed dated 22.07.1988 as void, ab-initio and ineffective. The trial court while deciding the issue No.6 has observed that "whether the Revenue Court has jurisdiction to entertain the suit in regard to cancellation of the sale deed or the jurisdiction lies with the Civil Court?" It was argued that the sale deed is ab- initio void because on the date of executing the sale deed the sellers were not in actual possession over the land in question. The trial court has further observed that in case the sale deed is ab- initio void, the Revenue Court has jurisdiction to entertain the suit, however, admitted that otherwise the jurisdiction for cancellation of the sale deed lies with the Civil Court.

26. Since in the above part of this judgment this Court has upheld the findings of the Second Appellate Authority in regard to the question of law No.2 that the plaintiff/ petitioners are in continuous possession of the suit land from Samvat 2012 till deciding the suit, are perverse and illegal. Since the plaintiff/ petitioners could not (Downloaded on 11/11/2023 at 06:55:10 PM) (39 of 47) [CW-4688/2019] prove their possession over the land in question and the sellers of the land by sale deed dated 22.07.1988 were recorded khatedars, the sale deed cannot be said to be ab-initio void.

27. The counsel appearing for the respondents has also raised an issue that the suit filed by the plaintiff/ petitioners could not have been decreed because same was filed after a lapse of about 33 years. It has been submitted by the counsel for the respondents that the plaintiff/ petitioners did not turn out for their khatedari rights well in time because they were not having possession over the land in question.

28. Counsel appearing for the plaintiff/ petitioners submitted that they were in actual possession over the land in question and soon after the sale deed was executed in favour of respondents- Bhagwan and Smt. Patasi in the year 1987, they immediately filed the suit before the trial court in the year 1988. The plaintiff/ petitioners in their suit claimed their possession over the land in question since prior to the commencement of the Act of 1955. The plaintiff/ petitioners were supposed to claim their khatedari rights in view of the provisions of Sections 15, 19 and 63 of the Act of 1955 soon after they became entitled for the same in a reasonable time.

29. In case of Joint Collector Ranga Reddy District & Another Vs. D. Narsing Rao & Ors. & one other connected matter, reported in (2015) 3 SCC (Downloaded on 11/11/2023 at 06:55:10 PM) (40 of 47) [CW-4688/2019] 695, the Hon'ble Apex Court in para 25 has observed as under:-

"25. The legal position is fairly well- settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power revisional or otherwise such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference in so far as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period."

In case of Padhiyar Prahladji Chenaji (deceased) through Legal Representatives Vs. Maniben Jagmalbhai (deceased) through Legal Representative & Anr., reported in (2022) 12 SCC 128, the Hon'ble Apex Court in para Nos. 22 and 23 has observed as under:-

"22. In A. Subramanian Vs. R. Pannerselvam, (2021) 3 SCC 675, it is observed by this Court that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. Therefore, the plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief and the dispute with respect to the title comes to an end.

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23. Now, so far as the reliance placed upon the decision of this Court in the case of Anathula Sudhakar (supra) by the learned Advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff's possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession is concerned, what is observed by this Court in paragraph 15 is the "lawful possession"

of the plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff's possession cannot be said to be "lawful possession". Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case."

In case of Situ Sahu & Ors. Vs. State of Jharkhand & Ors., reported in (2004) 8 SCC 340, the Hon'ble Supreme Court in para 14 has observed as under:-

"14. We shall now examine the last argument of Shri Narasimha that the transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam (supra), the power (Downloaded on 11/11/2023 at 06:55:10 PM) (42 of 47) [CW-4688/2019] under Section 71A could have been exercised only within a reasonable time. Looking to the facts and circumstances of the present appeal, we are not satisfied that the Special officer exercised his powers under Section 71A within a reasonable period of time. The lapse of 40 years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. We derive support to our view from the observations made by this Court in Jai Mangal Oraon case (supra) which was also a case which arose under the very same provision of law. There this Court took the view that Section 46(4)(a), which envisaged a prior sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947 (with effect from 5.1.1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15.1.1942). Obviously, therefore, no such provision existed in 1938, and the same reasoning applies."

30. In view of the settled law as referred, the trial court should not have entertained the suit for declaration of khatedari rights after a lapse of 33 years. Therefore, the judgment and decree passed by the trial court are not sustainable.

31. Counsel for the petitioners/ plaintiff also submitted that even in case the suit for khatedari rights is not acceptable then also the plaintiff/ petitioners were entitled for permanent injunction as the plaintiff/petitioners are in possession of (Downloaded on 11/11/2023 at 06:55:10 PM) (43 of 47) [CW-4688/2019] the land in question and they cannot be thrown out without following the due process of law.

32. It is a well settled law that no decree of permanent injunction can be granted in favour of the plaintiff until and unless he succeeds in proving his lawful possession over the land in question as against its true owner. In the present case, in view of the findings given above, the plaintiff/petitioners failed to prove their lawful possession over the land in question. The plaintiff/ petitioners themselves were seeking declaration of khatedari rights on the basis of a long possession, meaning-thereby, they were not having lawful authority of the land at the time of filing of the suit and they also could not prove their uninterrupted possession over the land in question against the lawful owner having the title of the land in their favour.

33. Since the suit for declaration of khatedari rights has not been accepted, as observed above, no perpetual injunction can be granted without there- being any decree of declaration in favour of the plaintiff.

34. In T.V. Ramakrishna Reddy Vs. M. Mallappa & Ors., reported in (2021) 13 SCC 135, the Hon'ble Supreme Court in para Nos.9 and 20 has observed as under:-

"9. The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar v. P. (Downloaded on 11/11/2023 at 06:55:10 PM) (44 of 47) [CW-4688/2019] Buchi Reddy (dead) by L.Rs. and Ors., reported in (2008) 4 SCC 594 in paragraph 21, which read thus:

"21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, (Downloaded on 11/11/2023 at 06:55:10 PM) (45 of 47) [CW-4688/2019] unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d)    Where    there    are     necessary
pleadings     regarding      title,    and

appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.

But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to (Downloaded on 11/11/2023 at 06:55:10 PM) (46 of 47) [CW-4688/2019] identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and another2:

"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."

35. In view of the above claim of the plaintiff/ petitioners for permanent injunction, without proving the lawful possession over the land in question, is not sustainable.

36. In view of the discussions made above, this Court finds no illegality or perversity in the order passed by the Second Appellate Authority i.e. Board of Revenue and therefore, no interference can be made in writ jurisdiction under Article 227 of the Constitution of India.

37. As a result, both the writ petitions are dismissed.

(Downloaded on 11/11/2023 at 06:55:10 PM)

                                                                            (47 of 47)                      [CW-4688/2019]


                                   38.         Since           the        main          petitions         have     been

                                   dismissed,         the         stay         applications              and   pending

applications, if any, also stand dismissed.

(GANESH RAM MEENA),J Sharma NK-Dy. Registrar (Downloaded on 11/11/2023 at 06:55:10 PM) Powered by TCPDF (www.tcpdf.org)

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