Rajasthan High Court - Jaipur
Ram Singh S/O Motu vs Jagdish S/O Gyarsa on 9 January, 2020
Bench: Sangeet Lodha, Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 851/2018
Ram Singh S/o Motu, By Caste Gawariya, Resident Of Devpura,
Tehsil Bundi, District Bundi (Raj.)
----Appellant
Versus
1. Jagdish S/o Gyarsa, By Caste Mali, R/o Ramganj, Naya
Gaon, Tehsil And District Bundi (Raj.)
2. Roop Chand S/o Gyarsa, By Caste Mali, R/o Ramganj,
Naya Gaon, Tehsil And District Bundi (Raj.)
3. Mst. Nathi Bai D/o Gyarsa, By Caste Mali, R/o Ramganj,
Naya Gaon, Tehsil And District Bundi (Raj.)
4. Mst. Dhuli D/o Gyarsa, By Caste Mali, R/o Ramganj, Naya
Gaon, Tehsil And District Bundi (Raj.)
5. Mst. Dhapu D/o Gyarsa, By Caste Mali, R/o Ramganj,
Naya Gaon, Tehsil And District Bundi (Raj.)
6. Mst. Dhapu D/o Dala, By Caste Mali, Resident Of
Ramganj, Naya Gaon, Tehsil And District Bundi (Raj.)
7. Mst. Bardhi Bai D/o Dala, By Caste Mali, Resident Of
Ramganj, Naya Gaon, Tehsil And District Bundi (Raj.)
----Respondents
For Appellant(s) : Mr. Praveen Kumar Jain
For Respondent(s) : Mr. Amit Dadhich
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment
9th January, 2020
Per Hon'ble Mr. Sangeet Lodha,J.
1. This intra court appeal is directed against order dated 5.3.2018 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the appellant assailing the (Downloaded on 09/01/2020 at 09:25:04 PM) (2 of 7) [SAW-851/2018] legality of compromise decree dated 19.4.2001 and order dated 8.11.2017 dismissing the review petition seeking review of order dated 19.4.2001 passed by the Board of Revenue, has been dismissed.
2. The appeal is reported to be barred by limitation for 59 days. It is accompanied by an application under Section 5 of Limitation Act. The application is not opposed by the counsel appearing for the respondents. Accordingly, the application is allowed. The delay in filing the appeal is condoned.
3. Heard the learned counsel for the parties.
4. The facts relevant are that the suit for eviction and possession preferred by Smt. Sunder and Smt.Mooli against respondents herein in respect of the land measuring 1 bigha 12 biswas comprising khasra no.224, 5 bihgas and 12 biswas comprising khasra no.225, 11 biswas comprising khasra no.226 and 6 bighas and 19 biswas comprising khasra no.227,total 14 bighas and 14 biswas, situated in revenue village Ramganj, Tehsil Bundi, was dismissed by the Deputy District Collector, Bundi vide judgment and decree dated 21.4.1990. Aggrieved thereby, an appeal preferred by Smt. Sunder and Smt. Mooli was allowed by the Revenue Appellate Authority, Kota vide judgment and decree dated 25.3.1997 and accordingly, the defendants-respondents were directed to be evicted from the disputed land and the possession thereof was directed to be handed over to the plaintiff Smt.Sunder and Smt. Mooli.
5. Aggrieved thereby, the respondents herein filed appeal before the Board of Revenue Rajasthan. During the pendency of the appeal, Smt. Sunder and Smt. Mooli, the original plaintiffs, expired. On the strength of the Will executed by Smt. Sunder and (Downloaded on 09/01/2020 at 09:25:04 PM) (3 of 7) [SAW-851/2018] Smt. Mooli, the appellant herein was substituted as respondent in the appeal. The appellant entered into compromise with the respondents relinquishing his claim over the disputed land and preferred an application for setting aside the decree dated 25.3.1997 passed by the Revenue Appellate Authority and prayed for entering the disputed land in the revenue record in the names of the respondents. The appeal preferred by the respondents was accordingly disposed of by the Revenue Board in terms of the compromise arrived at vide order dated 19.4.2001. The decree under the appeal was set aside and the respondents were declared khatedar tenant of the disputed land.
6. After a lapse of about 14 years, the appellant preferred a petition seeking review of compromise decree dated 19.4.2001 on the ground that the appellant and his predecessor in title were the members of the Scheduled Caste, whereas the respondents belong to the caste other than Scheduled Caste and therefore, the compromise decree passed in their favour is void by virtue of provisions of Section 42 of Rajasthan Tenancy Act, 1955, which prohibits transfer of the land belonging to Scheduled Caste/Scheduled Tribe in favour of a person who is not member of Scheduled Caste or Scheduled Tribe. The review petition preferred was dismissed by the Board of Revenue observing that in the plaint filed and in the subsequent proceedings including the application seeking disposal of the appeal in terms of the compromise, the original plaintiff and the appellant herein have disclosed their caste as 'gawaar banjara' which does not fall within the Scheduled Castes. The Board observed that the appellant has not approached the Court with clean hands inasmuch as, if he had any objection regarding his caste, he could (Downloaded on 09/01/2020 at 09:25:04 PM) (4 of 7) [SAW-851/2018] have raised the objection in this regard before the trial Court, the Appellate Court or the Board of Revenue at the appropriate stage. The Board opined that in absence of any error apparent on the face of record, the application preferred seeking review of the compromise decree cannot be entertained.
7. Aggrieved by the order passed by the Board of Revenue as aforesaid, the writ petition preferred by the appellant has been dismissed by the learned Single Judge observing that by filing the review application, the appellant attempted to play fraud with the court and therefore, criminal proceedings ought to be initiated against him by the concerned Tehsildar. Hence, this appeal.
8. Learned counsel appearing for the appellant contended that the original plaintiffs and the appellant herein belong to caste 'ganwaria' which is admittedly a Scheduled Caste throughout the State of Rajasthan and thus, the disputed land which belong to a member of Scheduled Caste could not have been transferred even by way of compromise decree to the respondents, the members of the caste other than Scheduled Caste and therefore, the compromise decree passed by the Board of Revenue vide order dated 19.4.2001 is void by virtue of Section 42 of the Act of 1955. Learned counsel would submit that merely on account of inadvertent error on the part of the original plaintiffs and the appellant herein in mentioning their caste correctly in the pleadings before the Court at all stages, the compromise decree passed which is void cannot be allowed to stand ignoring the mandate of provisions of Section 42 of the Act of 1955.
9. On the other hand, learned counsel appearing for the respondents submitted that the proceedings in the suit which culminated in passing of the compromise decree by the Board of (Downloaded on 09/01/2020 at 09:25:04 PM) (5 of 7) [SAW-851/2018] Revenue cannot be reopened by way of review petition on the basis of altogether new facts set out in the review petition, filed after a lapse of 14 years. Learned counsel submitted that the original plaintiffs and the appellant have consistently disclosed their caste as 'banjara ganwaria' before the trial Court, Appellate Court and Board of Revenue at different stages of the proceedings and thus, the stand sought to be taken at this belated stage that the original plaintiffs and the appellant herein belong to a different caste which falls within the category of Scheduled Caste, has rightly not been countenanced by the Board of Revenue. Learned counsel submitted that the attempt of the appellant in taking a false stand so as to wriggle out from the compromise decree, is absolutely mala fide and therefore, the special appeal deserves to be dismissed with exemplary cost.
10. We have considered the rival submissions and perused the material on record.
11. Indisputably, in the suit initially filed by the original plaintiff Smt. Sunder Devi and Smt. Mooli Devi, they disclosed their caste as 'Gawaar Banjara'. The plaintiffs claimed the khatedari rights over the disputed land by succession, which was alleged to be in permissive possession of the defendants. It was not even the case set out by the original plaintiffs in the suit filed that they being the members of Scheduled Caste, the transfer of the possession of the disputed land by mortgage or otherwise in favour of the defendants, the members of the caste other than Scheduled Caste, is void. It is pertinent to note that the judgment and decree passed by the trial Court was set aside by the Revenue Appellate Authority inasmuch as, the issue with regard to plaintiffs claim regarding the khatedari rights over the disputed land as successor (Downloaded on 09/01/2020 at 09:25:04 PM) (6 of 7) [SAW-851/2018] of their father, the khatedar tenant of the land, was found proved and the respondents herein were found to be in unauthorised occupation of the disputed land.
12. It is not in dispute that the appellant herein, who alleged to have acquired khatedari rights over the disputed land on the strength of the Will dated 30.6.1995 executed by late Smt. Sunder and late Smt. Mooli in his favour, entered into compromise with the respondents herein before the Board of Revenue and accordingly, in terms of the compromise, the judgment and decree under appeal was set aside and while dismissing the suit, the respondents were declared as khatedar tenants of the land. Even in the application preferred by the parties jointly before the Board of Revenue for disposal of the appeal in terms of the compromise, the appellant had disclosed his caste as 'Gawaar Banjara'.
13. In this view of the matter, the Board of Revenue has rightly declined to review the order passed in terms of the compromise. As a matter of fact, by way of review petition,the appellant attempted to raise altogether a new issue which was based on new facts set out in the review petitions. Obviously, the concluded proceedings in the suit could not have been permitted to be reopened by way of review petition so as to first decide the issue regarding the actual caste of the appellant and then to proceed to decide the appeal afresh on merits. Apparently, the review petition filed by the appellant belatedly after a lapse of about 14 years, with an intention to unsettle the rights of the parties already settled by way of compromise decree, while taking the stand beyond the scope of original suit, was absolutely mala fide and thus, the Board of Revenue has committed no error in dismissing the review petition filed by the appellant.
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14. For the aforementioned reasons, we are in full agreement with the view taken by the learned Single Judge of this Court.
15. No case for interference by us in exercise of the intra court appeal jurisdiction is made out.
16. The special appeal is therefore, dismissed. No order as to costs.
(MAHENDAR KUMAR GOYAL),J (SANGEET LODHA),J
ADITYA JOSHI /
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