Rajasthan High Court - Jodhpur
Punama Ram & Anr vs State & Ors on 8 December, 2016
Author: Sangeet Lodha
Bench: Sangeet Lodha
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
D.B.SPL. APPL. WRIT NO. 335 / 2005
1. Lrs of Punama Ram S/o Sh. Achala Ram:-
1/1 Smt. Soni W/o Late Shri Punama Ram, Aged-70
years,
1/2 Hema Ram S/o Late Shri Punama Ram, aged-60
years.
1/3 Gulaba Ram S/o Late Shri Punama Ram, Aged-50
years,
1/4 Bhanwar Lal S/o late Shri Punama Ram, Aged-40
years,
1/5 Babu Lal S/o Late Shri Punama Ram, Aged-35 years,
2. Bhima Ram S/o Shri Achala Ram, by caste-Meghwal,
aged-60 years Resident of Mahabar, Tehsil & District-Barmer
(Rajasthan).
----Appellants
Versus
1. State of Rajasthan, through The Secretary, Revenue
Department, Govt. of Raj. Jaipur.
2. The Board of Revenue, through its Chairman, Ajmer.
3. The District Collector, Barmer.
4. The Tehsildar, Barmer.
5. The Sub Division Officer, Barmer.
6. The Sarpanch, Gram Panchayat, Mahabar Distt. Barmer.
7. Mula Ram S/o Anda, by caste-Meghwal.
8. Luna Ram S/o Anda, by caste-Meghwal.
9. Shera Ram S/o Anda, by caste-Meghwal.
10. Tulcha Ram S/o Sh. Gajrat Bheel.
11. Takat Singh S/o Pur Singh.
12. Pataram S/o Sh. Nimba Ram.
13. Kubharam S/o Manaram,
14. Mularam S/o Goparam,
15. Padaram S/o Goparam,
16. Ajaram S/o Sh. Likhmaram Meghwal,
(2 of 14 )
[SAW-335/2005]
17. Chandan Singh S/o Sh. Brijraj Singh Rajput.
18. Narnaram S/o Magnaram.
19. Lubharam S/o Sh. Jaguram Bheel.
20. Ruparam S/o Sh. Manglaram Guru.
21. Kuparam S/o Sh. Tajaram Meghwal.
22. Pujaram S/o Sh. Dharuram Meghwal.
23. Deleted.
24. Durjan Singh S/o Sh. Hem Singh.
25. Bhiyaram S/o Sh. Motaram.
26. Mularam S/o Bhanjaram Guru.
(All respondent no.7 to 26 are residents of Mahabar, Tehsil
& District-Barmer-Rajasthan.)
----Respondents
__________________________________________
For Appellants : Mr.S.P.Sharma
For Respondents : Mr.L.S.Jodha
Mr.O.P.Boob, Government Counsel
__________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI Judgment Per Hon'ble Mr.Sangeet Lodha,J.
08/12/2016
1. This intra court appeal is directed against order dated 18.8.03 of the learned Single Judge of this Court, whereby the writ petition preferred by the appellants, questioning the legality of order dated 7.8.02 of the Board of Revenue, (3 of 14 ) [SAW-335/2005] accepting the reference made by the Collector, Barmer and setting aside the decree dated 21.7.71 passed in favour of the appellant by the Assistant Collector, Barmer in Revenue Suit No.77/71, stands dismissed.
2. The facts in brief are : The appellants' father Achala filed a suit (No.95/70 old No.34/68) for declaration of khatedari rights over the land comprising Khasra No.45 and 21, ad measuring 15 bighas and 45 bighas respectively before the Assistant Collector, Barmer, which stood dismissed for want of evidence vide order dated 29.6.70. After dismissal of the suit as aforesaid, Achala and the appellant Punama filed yet another suit (No.77/71) before the Assistant Collector, Barmer, for declaration of khatedari rights over the land in question. No written statement was filed by the State represented through the Tehsildar, Barmer, however, the Gram Panchayat, filed written statement admitting the claim of the appellants. The suit was decreed as prayed for, vide judgment and decree dated 20.7.71 passed by the Assistant Collector, Barmer. After lapse of about 28 years, the District Collector, Barmer, made a reference to the Board of Revenue Rajasthan under Section 232 of the Rajasthan Tenancy Act, 1955 ('the Act') stating that the land in question is recorded in the revenue record as Gochar and Oran which was never in cultivatory possession of the appellants herein and no khatedari right could accrue in favour (4 of 14 ) [SAW-335/2005] of anybody in such land. The reference made has been accepted by the Board of Revenue, holding that by virtue of provisions of Section 16 of the Act, no khatedari right accrues in the land categorised as pasture or oran and therefore, the decree passed in favour of the appellants is null and void ab initio.
3. The writ petition preferred by the appellants questioning the legality of the order passed by the Board of Revenue has been dismissed by the learned Single Judge of this Court observing that the land recorded as Gair Mumkin Gochar is not available for allotment and thus, the annulment of such allotment cannot be interfered with under Article 226 of the Constitution of India. Hence, this intra court appeal.
4. Learned counsel appearing for the appellants contended that the Board of Revenue has seriously erred in entertaining the reference made seeking annulment of the decree passed by the revenue court of competent jurisdiction after a lapse of more than 28 years. Learned counsel submitted that the reference under Section 232 of the Act can be made within a reasonable time and thus, the Collector, Barmer, could not have made a reference after lapse of about three decades and therefore, the order passed by the Board of Revenue is liable to be set aside on this count alone. In support of the contention, learned counsel relied upon a Full Bench decision of this Court (5 of 14 ) [SAW-335/2005] in the matter of "Tara & Ors. vs. State of Rajasthan & Anr.", (2015) 3 WLN, 193. Learned counsel submitted that the judgment and decree dated 20.7.71 passed by the Assistant Collector, Barmer, in favour of the appellants having attained finality, the District Collector had no jurisdiction to make a reference for annulment of the decree stating that the land in question is recorded in the revenue record as pasture/oran. Learned counsel submitted that the Board of Revenue has seriously erred in holding that no opportunity was given to the Tehsildar representing the State to file written statement and lead evidence. Learned counsel submitted that the Board has erred in expressing suspicion about the written statement filed by the Sarpanch, Gram Panchayat, Mahabar, admitting the claim of the appellants. Learned counsel submitted that the Board has erred in holding that by virtue of Section 16 of the Act, no khatedari rights accrues in respect of the pasture land and therefore, the decree passed is null and void. Learned counsel submitted that the land measuring 60 bighas, comprising Khasra No.46 of Village-Mahabar, Tehsil & District, Barmer was in possession of the appellant's father-Achala but during the settlement proceedings, the same was erroneously entered in the name of Sanga son of Sagra. Learned counsel submitted that an application made by Achala for recording the said land in his name was allowed. Learned counsel would (6 of 14 ) [SAW-335/2005] submit that the demarcation of the land was not properly made and therefore, instead of 60 bighas only, 7 bighas and 6 biswas land was entered in the name of Achala. Learned counsel submitted that since the land was not correctly entered, the appellants had filed a revenue suit for declaration of his khatedari right and thus, the judgment and decree passed by the revenue court of competent jurisdiction cannot be said to be null and void. Learned counsel submitted that the sanctity of the decree passed by the court of competent jurisdiction has to be maintained and the same cannot be annulled invoking the power of reference after inordinate delay.
4. On the other hand, learned counsel appearing for the respondents no.7 to 22 and 24 to 26 at whose instance the reference was made by the Collector, Barmer, submitted that the decree was obtained by the appellants herein by committing fraud. Learned counsel submitted that the judgment and decree obtained by playing fraud on court is nullity and non est and therefore, the principle of finality of litigation cannot be pressed in the instant case. In support of the contention, learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matters of 'S.P. Chengalvaraya Naidu(Dead) by LRS. Vs. Jagannath (Dead) by LRS and Others' (1994) 1 SCC 1 and 'United India Insurance Co. Ltd. Vs. Rajendra Singh and others' (2000) 3 SCC 581.
(7 of 14 ) [SAW-335/2005] Learned counsel submitted that the first suit filed by the appellants was contested by the Sarpanch, Gram Panchayat, Mahabar by filing a written statement thereto taking the specific stand that the appellants' father was never in possession of land ad measuring 15 bighas comprising Kharsa No.45 and 45 bighas comprising Khasra No.21 and the same were recorded as Gochar/oran from very inception. Learned counsel submitted that the Panchayat having taken specific stand regarding the land being Gochar, Achala deliberately got the suit dismissed vide order dated 29.6.70 and immediately thereafter Achala alongwith appellant Punama filed a fresh suit on 19.8.70, wherein then Sarpanch, Gram Panchayat, while filing the written statement admitted the claim. Learned counsel submitted that as a matter of fact the order of dismissal of the earlier suit was a collusive order, wherein it is recorded that the witnesses have not been produced nor their summons duly filled in have been filed, whereas the summons filed were duly served upon the witnesses. In this regard, learned counsel appearing for the private respondents has drawn attention of the Court to the photostat copies of the summons placed on record showing that the same were duly served upon the witnesses. Learned counsel submitted that the suit earlier filed by the appellants has been dismissed by the court for want of evidence and not for non-prosecution and (8 of 14 ) [SAW-335/2005] therefore, the fresh suit filed by the appellants was ex facie barred by the principle of res judicata. Learned counsel submitted that the land comprising Khasra No.46 has nothing to do with the land in question. Drawing the attention of this Court to the Tarmim Parcha (Annexure-R/8) learned counsel submitted that the land comprising Khasra No.46 was 7 bighas and 6 biswas of the category Barani Doyam, which pursuant to the order dated 20.12.56 passed by the Assistant Record Officer, Barmer, was entered in the name of the appellants' father. Learned counsel submitted that there is nothing on record suggesting that the land comprising Khasra No.46 was 60 bighas, which was later erroneously entered as the land comprising Khasra No.45 and 21 as suggested by the appellants. Learned counsel appearing for the respondents submitted that the appellants have indulged in sheer falsehood and therefore, they are not entitled for any indulgence by this Court. Drawing the attention of this Court to the averments made in the rejoinder to the reply filed on behalf of the private respondents, learned counsel urged that in the rejoinder filed, the appellants have taken altogether a different stand stating that prior to settlement proceedings, the land in question was entered in revenue record in Khasra No.2055 and 1527 and the appellants had paid rent for cultivating the land in the year 1955 and in this regard they have produced the certified copy (9 of 14 ) [SAW-335/2005] of Parcha Tajbiz Lagan as Annexure-15 and attempted to impress upon the Court as if the said land has been erroneously entered as Gochar or Oran in the revenue record during the settlement proceedings. Learned counsel submitted that falsehood and fraud on the part of the appellants is writ large and therefore, the special appeal deserves to be dismissed with exemplary costs.
6. The learned Government Counsel Mr. O.P. Boob adopted the arguments advanced by Mr. L.S. Jodha, learned counsel appearing for the private respondents.
7. Replying the arguments advanced on behalf of the private respondents, learned counsel for the appellants submitted that the questions regarding the delay in making the reference is not answered by the counsel appearing for the respondents. Learned counsel submitted that in the first suit filed by the appellants there is no adjudication on merits and therefore, the subsequent suit filed, cannot be treated to be barred by the principle of res judicata.
8. We have considered the rival submissions and perused the material on record.
9. Indisputably, the land in question ad measuring 15 bighas comprising Khasra No.45 and 45 bighas comprising Khasra No.21 are recorded in revenue record as Gair Mumkin Gochar and Gair Mumkin Oran respectively and by virtue of provisions (10 of 14 ) [SAW-335/2005] of Section 16 of the Act of 1955, no khatedari rights accrues in pasture/oran land. In this view of the matter, even on the basis of long possession nobody can claim any right, title or interest in the pasture/oran land.
10. The case as set out by the appellants was that their father was having possession over the land measuring 60 bighas comprising Khasra No.46, which was inadvertently entered in the name of Sanga son of Sagra and therefore, their father Achala made an application for issuance of patta of the entire land in his favour, which stood allowed, but inadvertently pursuant to the order dated 20.12.56 passed by the Assistant Settlement Officer, only 7 bighas and 6 biswas land was entered in his name and the remaining land was entered as Gair Mumkin Gochar and Gair Mumkin Oran in revenue record comprising Khasra No.45 and 21 respectively. There is nothing on record suggesting that the land comprising Khasra No.46 at the relevant time was 60 bighas. To the contrary, the revenue entry available on record shows that pursuant to order dated 20.12.56 of Assistant Record Officer, the 7 bighas and 6 biswas land comprising Khasra No.46 was entered in the name of the appellants. Even the order alleged to have been passed, the Assistant Settlement Officer in no manner suggest that the appellants claim for 60 bighas of land was accepted. It is pertinent to note that so as to lay the claim in regard to 60 (11 of 14 ) [SAW-335/2005] bighas land comprising Khasra No.45 and 21, the appellants in the suit filed proceeded to claim their possession over the land ad measuring 67 bighas and 6 biswas as against 60 bighas claimed while making the application as alleged before the Assistant Settlement Officer inasmuch as the land measuring 7 bighas and 6 biswas comprising Khasra No.46 already stands entered in the name of the appellant. There is nothing on record suggesting that Khasra No.45 and 21 are the changed khasras of Khasra No.46. Thus, the claim of the appellants was absolutely without foundation and not supported any evidence on record.
11. A perusal of the record reveals that the earlier suit filed by the appellants' father claiming khatedari rights over the land in question was contested by the Sarpanch, Gram Panchayat, Mahabar, by filing a written statement thereto, taking a categorical stand that the appellants' father was never in possession of Khasra No.45 and 21 of Village-Mahabar and further that the nature of land comprising Khasra No.45 and 21 is Gochar and Oran. A perusal of summons issued by the Assistant Collector, Barmer, to the witnesses reveal that the same were duly served and thus, apparently while dismissing the suit for want of evidence, the court concerned has wrongly recorded that the summons duly filled in have not been filed. Be that as it may, the suit having been dismissed as aforesaid, (12 of 14 ) [SAW-335/2005] the appellants were precluded from bringing the fresh suit. Strangely enough, instead of making an application for setting aside the dismissal of the suit, Achala along with the appellant Punama filed a fresh suit for the same cause of action, just after a few days. The matter was proceeded ex parte against the Tehsildar, Barmer, and this time the Sarpanch, Gram Panchayat, Mahabar, who had earlier filed a written statement contesting the suit, admitted the claim.
12. A bare perusal of the judgment rendered by the revenue court reveal that the suit has been decreed as prayed for, observing that as per the Khasra Girdawari the plaintiffs were in cultivatory possession of the land comprising Khasra No.21 and 45, since Samvat 2015 and 2018 respectively and that apart, the Sarpanch, Gram Panchayat has admitted the claim of the plaintiffs. It is pertinent to note that no documentary evidence was produced to establish that the appellants were in continuous cultivatory possession of the land in question. The court even did not care to consider that the land on which the appellants are claiming khatedari right is recorded in the revenue record as Gochar and Oran, in respect whereof by virtue of provisions of Section 16 of the Act of 1955, no khatedari rights are permissible to be granted. In this view of the matter, the collusive decree of declaration of khatedari rights over the land in question, in respect whereof no (13 of 14 ) [SAW-335/2005] khatedari rights accrues by virtue of provisions of Section 16 of the Act of 1955, obtained by the appellants, has rightly been held to be null and void by the Board of Revenue.
13. As laid down by the Hon'ble Supreme Court in the matter of S.P. Chengalvaraya Naidu's case (supra), the principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Court observed that a judgment and decree obtained by playing fraud is nullity and non est in the eyes of law and such decree from the first court or by the highest court has to be treated as nullity by every court whether superior or inferior. Thus, the Full Bench decision of this Court relied upon by the learned counsel does not help the appellants in any manner.
14. As a matter of fact, the appellants have indulged in sheer falsehood even before this Court. As noticed hereinabove, initially the appellants set out their case claiming khatedari rights over the land in question stating that the land in their possession comprising Khasra No.46 has wrongly been recorded in Khasra No.45 and 21 as Gochar and Oran but by way of rejoinder to the reply filed on behalf of the respondent no.7 to 22 and 24 to 26, the appellants have taken the stand that prior to settlement proceedings, the land in question was entered in revenue record under Khasra No.2055 and 1527 and the (14 of 14 ) [SAW-335/2005] appellants had paid rent for the said land in the year 1955 and in this regard he has placed on record a copy of Parcha Tajbiz, which relates to the land measuring 46 bighas and 15 biswas of the category Barani Doyam. Suffice is to say that without there being any material on record suggesting that the old khasra number of the land in question was 2055/1527, the appellants taking a stand contrary to the stand earlier taken before the revenue court, Board of Revenue and learned Single Judge and stating whatever coming their way without any sense of responsibility have attempted to mislead this Court. In this view of the matter, the appellants are not entitled for any indulgence by this Court.
15. In view of the discussion above, the order impugned passed by the learned Single Judge does not warrant any interference by us in exercise of intra court appeal jurisdiction.
16. In the result, the special appeal fails, it is hereby dismissed with costs of Rs.5,000/-.
(DEEPAK MAHESHWARI)J. (SANGEET LODHA)J. vij