Rajasthan High Court - Jaipur
Jagdish & Ors vs Prahlad & Ors on 9 May, 2016
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER Jagdish & Others Vs. Prahlad & Others (S.B. Civil Writ Petition No.5471/2016) Date of Order: May 09, 2016. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Mr. R.P. Singh, Senior Advocate with Mr. Sandeep Pathak, for the petitioners. Mr. R.K. Agrawal, Senior Advocate with Mr. Lokesh Sharma and Ms. Shaifali Sharma, for respondents. BY THE COURT:
Under challenge is the order dated 18-4-2016 passed by the Board of Revenue Rajasthan Ajmer (hereinafter `the Board') setting aside the order dated 28-3-2007 passed by the Revenue Appellate Authority Jaipur (hereinafter `the RAA') which had affirmed the order dated 22-5-2006 passed by the Sub Divisional Officer Jaipur-II (SDO) on an application under Section 212 Rajasthan Tenancy Act, 1955 (hereinafter `the Act of 1955) filed by petitioners-plaintiffs (hereinafter `the plaintiffs) along with the suit for declaration and injunction under Sections 88 and 188 of the Act of 1955.
The case set up by the plaintiffs in their suit against the defendants-respondents (hereinafter `the defendants) was that albeit the defendants were recorded in the record of rights as khatedars of land falling in khasra Nos.515, 516, 884 and 385 (old khasra No.210 and 369) asmeasuring 1.71 hectares, situate at Prahladpura Tehsil Sanganer, Jaipur (hereinafter `the suit land) they had been in possession thereof since Svt.2012 (i.e.1955) till the date of filing of the suit. Declaration as khatedars and permanent injunction was sought fundamentally on the ground of sub-tenancy and adverse possession. The suit was resisted by the defendants asserting that they were the recorded khatedar of the suit land and the plaintiffs not in possession. It was submitted that in any event the suit seeking declaration of khatedari rights on allegedly being sub-tenants of the recorded khatedars had been laid 50 years after the coming into force of the Act of 1955, was barred by limitation under the second proviso to Section 19(1)b of the Act of 1955 and therefore be dismissed. Reply in opposition to the application under section 212 of the Act of 1955 was also filed. Vide order dated 22-5-2006 the plaintiffs' application under Section 212 of the Act of 1955 was allowed by the SDO noting that from the supporting documents on record the plaintiffs were apparently in cultivatory possession of the suit land since the coming into force of the Act of 1955 and so recorded intermittently in the khasra girdavari between Svt. 2008 and 2029. And even though the record of rights reflected the defendants as khatedars in the suit land. The circumstances warranted interim protection for the plaintiffs as the merits of the suit on the claim of khatedari could only be addressed on the basis of evidence of parties laid during the course of a regular trial. Aggrieved, the defendants preferred a miscellaneous appeal before the RAA, who vide order dated 28-3-2007 affirmed the order dated 22-5-2006 passed by SDO. The said order dated 28-3-2007 passed by the RAA has now been set aside by the Board in revision under Section 230 of the Act of 1955, vide its order dated 18-4-2016 inter alia on the ground that the defendants were recorded kahtedars and there could be no injunction against them. It was oddly also held sidetraking the khasra girdawaris before the SDO reflecting the plaintiffs' cultivatory possession for various periods between Svt.2008 and 2029 that there was no evidence supporting the claim of the plaintiffs on the basis of which they could assert possession. The Board concluded that there was no prima facie proof of the plaintiffs being the recorded sub-tenants in the record of rights or even under a contract with the defendants, and the mere circumstance of any land revenue having been paid by the plaintiffs qua the suit land was of no consequence to the merits of the plaintiffs' case for grant of interim protection. It was further held that khatedari rights could not be conferred on the basis of adverse possession as also claimed by the plaintiffs. The Board thus overturned the order dated 22-5-2006 passed by the SDO as affirmed by the RAA vide order dated 28-3-2007 and dismissed the plaintiffs application under section 212 of the Act of 1955 vide the impugned order dated 18-4-2016. Hence this petition.
Mr. R.P. Singh Senior Advocate appearing with Mr. Sandeep Pathak on behalf of the plaintiffs has submitted that the power of the Board in revision petitions under Section 230 of the Act of 1955 is extremely limited and confined to situations where the courts below have exercised jurisdiction not vested in them by law or have failed to exercise such jurisdiction or otherwise exercised jurisdiction illegally or with material irregularity. Counsel submitted that scope of revising power, para-materia with section 230 of the Act of 1955 was considered by the Apex Court in the case of Sher Singh Vs. Joint Director of Consolidation [1978(3) SCC 172] wherein it was held that if the subordinate courts are found to have passed orders within their jurisdiction, they cannot be said to have exercised it illegally or with material irregularity even if the impugned order was erroneous. Mr. R.P. Singh submitted that it cannot be anybodys case that the SDO, or for that matter the RAA hearing the miscellaneous appeal did not have jurisdiction to address and decide the plaintiffs application under Section 212 of the Act of 1955 filed along with the suit for declaration and permanent injunction. The decision by the SDO as affirmed by the RAA cannot in the circumstances even remotely be said to be an outcome of illegal exercise of the jurisdiction or it exercised with material irregularity. Counsel submitted that even on merits, the case set up by plaintiffs for interim protection during the pendency of the suit was on the basis of decades long cultivatory possession commencing prior to the time of coming into force of the Act of 1955 and the defendants not being in possession with all consequent legal ramifications, including the plea in the alternative of khatedari rights under adverse possession. Counsel submitted that for laying a suit for declaration of khatedari rights no limitation has been prescribed albeit the claim of sub-tenancy indeed may be affected on ground of limitation by the proviso to Section 19(1)(b) of the Act of 1955. But no such declaration was sought by the plaintiffs. What was sought was declaration of khatedari rights, submitted counsel. It was further submitted that in any event the plaintiffs having enjoyed interim protection under the SDO's order dated 22-5-2006, as affirmed by the RAA on 28-3-2007, for a period of more than 11 years, the more appropriate order for the Board would have been to direct the SDO to expeditiously decide the suit rather than upsetting the interim order passed by two courts below and thus leaving the plaintiffs vulnerable to dispossession, in the facts impermissible in law at the hands of the defendants despite settled cultivatory possession over the suit land over several decades.
Per contra, Mr. R.K. Agrawal Senior Advocate and Mr. Lokesh Sharma on behalf of the defendants submitted that the plaintiffs suit filed fifty years after coming into force of the Act of 1955 was hit by the proviso to Section 19(1)(b) of the Act of 1955, whereunder declaration of sub-tenancy could only be sought within two years of the Act of 1955 coming into force. The suit was therefore barred by limitation on that count. It was submitted that plaintiffs in the facts of the case had no prima facies case, inasmuch as subsequent to Svt.2029 the name of plaintiffs was not even recorded in khasra girdawari reflective of their alleged possession cultivatory or otherwise. It was submitted that the Board has passed a legal and well reasoned order for setting aside the order passed by the SDO affirmed by the RAA and rightly held that mere payment of land revenue was of no event for assertion of khatedari rights or protection of alleged possession. In fact the plaintiffs were not at all in possession of the suit land. The plaintiffs were not sub-tenants of defendants on the basis of any material on record. It was asserted that the Board has in the circumstances rightly held that no khatedari could be prima facie found for the plaintiffs on the basis of adverse possession and no injunction could issue against the recorded khatedars. It was prayed that in the circumstances there is no occasion for this court to interfere with the order passed by the Board upsetting and setting aside the orders passed by SDO as affirmed by the RAA. It was submitted that the jurisdiction of the Board under Section 230 of the Act of 1955 has rightly been exercised and brooks no interference in the exercise of the superintending jurisdiction of this court.
Heard. Considered.
It is no doubt true that the defendants are the recorded khatedar of the suit land. But it also prima facie appears from the record of the petition as found by the SDO and RAA, that the plaintiffs were in cultivatory possession of the suit land in Svt.2008 to 2011, 2014 and Svt.2018 to 2029. Further no materail obtained on record with regard to their dispossession thereafter. Whatever be the worth of the plaintiffs case on merits in their suit for declaration and permanent injunction, it could not at the stage of the application under Section 212 of the Act of 1955 be discounted completely. The principle of law is that if one establishes to be in possession at a given point of time, the burden lies on the opposite party to show as to how the said possession lawfully came to an end and how dispossession was brought about. There is no material on this aspect except the bare denials/ assertions by defendants. The issue of plaintiffs possession or dispossession at any point of time after Svt. 2029 would be a matter of evidence before the trial court. The plaintiffs being prima facie in cultivatory possession of the suit land for decades and claiming the beneficial consequences thereof, the SDO in his discretion on evaluation of the material before him passed an interim order in favour of the plaintiffs on 22-5-2006 which was affirmed by the RAA vide order dated 28-3-2007. The two orders aforesaid could not be said to be perverse, patently illegal or without jurisdiction. The Board, therefore, ought to have in the circumstances confined itself to the narrow jurisdiction under Section 230 of the Act of 1955 and not exercised its powers as if in appeal, there being no exercise of jurisdiction illegally and with material irregularity as the phrase has been construed by the Apex Court in the case of Sher Singh (supra) by the courts below. The Board ought not to have interfered with the order dated 22-5-2006 passed by the SDO on a prima facie finding of fact and implied consequent issues of balance of convenience and irreparable injury and affirmed by the RAA on 28-3-2007. In doing so the Board itself exceeded its jurisdiction under Section 230 of the Act of 1955.
I would therefore be inclined to allow the petition and set aside the order dated 18-4-2016 passed by the Board and restore that of the SDO passed on 22-5-2006 affirmed by the RAA vide order dated 28-3-2007. It is ordered accordingly.
On a query being put to Mr. R.P. Singh, it was stated that the suit before the SDO is presently at the stage of plaintiffs evidence. It is discomfiting to note that even after over ten years of the suit being laid it is still at the stage of plaintiffs evidence. Courts of law are not a place for strategy to the benefit of one or the other party. It is a duty of the parties to the litigation to facilitate expeditious decision making and the courts to adjudicate effectively within reasonable time. It does not appear to being so done in the present case. For this reason in suits which remain dormant, contest on interlocutory applications becomes as if a matter of life and death. This situation cries out for rectification. In the circumstances, the Sub Divisional Officer Jaipur-II is directed to decide the plaintiffs' suit finally within a period of one year from the date of presentation of a certified copy of this order. Adjournment in the matter shall not be granted without just cause, and when they so are, be by a reasoned order on a proper application/s being filed. Miscellaneous applications be decided within one week of filing and when found vexatious/ frivolous be dismissed by exemplary costs. The trial court in its judicious discretion will also be free to dismiss the suit for non prosecution when warranted and also to take ex parte proceedings against the defendant if required for reason of their absence when the case is called out.
The petition stands allowed accordingly.
(Alok Sharma), J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.