Rajasthan High Court - Jodhpur
Urban Improvement Trust, Udaipur vs Smt. Jaitu Kanwar on 7 September, 2022
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7196/2021
Urban Improvement Trust, Udaipur, Through Its Secretary.
----Petitioner
Versus
1. Smt. Jaitu Kanwar W/o Ummed Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
2. Ram Singh S/o Ummed Singh, R/o Village Sabina, Tehsil
Girwa, District Udaipur.
3. Chandan Singh S/o Ummed Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
4. Bhanwar Kanwar W/o Bhanwar Singh, Name Deleted. R/o
Village Sabina, Tehsil Girwa, District Udaipur.
5. Bhoor Singh S/o Bhanwar Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
6. Smt. Pratap Kanwar W/o Prem Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
7. Nirbhay Singh S/o Prem Singh, R/o Village Sabina, Tehsil
Girwa, District Udaipur.
8. Manohar Singh S/o Prem Singh, R/o Village Sabina, Tehsil
Girwa, District Udaipur.
9. Smt. Ganga Kanwar W/o Onar Singh, Name Deleted. R/o
Village Sabina, Tehsil Girwa, District Udaipur.
10. Roop Singh S/o Onar Singh, R/o Village Sabina, Tehsil
Girwa, District Udaipur.
11. Khuman Singh S/o Onar Singh, R/o Village Sabina, Tehsil
Girwa, District Udaipur.
12. Shambhoo Singh S/o Onar Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
13. Smt. Dhuli Kanwar W/o Chattar Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
14. Abhay Singh S/o Chattar Singh, R/o Village Sabina, Tehsil
Girwa, District Udaipur.
15. Himmat Singh S/o Chattar Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
16. Sohan Singh S/o Chattar Singh, R/o Village Sabina, Tehsil
Girwa, District Udaipur.
(Downloaded on 07/09/2022 at 09:52:28 PM)
(2 of 16)
17. State Of Rajasthan, Through Tehsildar Girwa District
Udaipur.
18. The Board Of Revenue Ajmer, Through Its Registrar
General , Ajmer.
----Respondents
Connected With
S.B. Civil Writ Petition No. 7188/2021
Urban Improvement Trust, Udaipur, Through Its Secretary.
----Petitioner
Versus
1. Smt. Jaitu Kanwar W/o Ummed Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
2. Ram Singh S/o Ummed Singh, R/o Village Sabina, Tehsil
Girwa, District Udaipur.
3. Chandan Singh S/o Ummed Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
4. Bhanwar Kanwar W/o Bhanwar Singh Name Delected, R/o
Village Sabina, Tehsil Girwa, District Udaipur.
5. Bhoor Singh S/o Bhanwar Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
6. Smt. Pratap Kanwar W/o Prem Singh, R/o Village Sabina,
Tehsil Girwa, District Udaipur.
7. Nirbhay Singh S/o Prem Singh, R/o Village Sabina, Tehsil
Girwa, District Udaipur.
8. Manohar Singh S/o Prem Singh, R/o Village Sabina, Tehsil
Girwa, District Udaipur.
9. State Of Rajasthan, Through Tehsildar Girwa District
Udaipur.
10. The Board Of Revenue Ajmer, Through Its Registrar
General, Ajmer.
----Respondents
For Petitioner(s) : Mr Vijay Purohit
For Respondent(s) : Mr Girish Joshi
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order (Downloaded on 07/09/2022 at 09:52:28 PM) (3 of 16) 07/09/2022 The controversy involved in these two writ petitions are related to each other, therefore, both the writ petitions are being decided together.
These writ petitions are filed by the petitioner - Urban Improvement Trust, Udaipur (hereinafter to be referred as 'the UIT') being aggrieved with the judgments dated 10.03.2021 passed by the Board of Revenue for Rajasthan, Ajmer (hereinafter to be referred as 'the BOR') in Appeal Nos.4649/2017 and 4651/2017, whereby the appeals filed by the UIT under Section 223 of the Rajasthan Tenancy Act (hereinafter to be referred as 'the Tenancy Act') have been dismissed and revenue suits filed by the private respondents have been decreed with a direction that they be declared as Khatedars of the lands for which they filed the revenue suits. The petitioner - UIT has further been restrained by way of permanent injunction from interfering in peaceful possession and use of the private respondents of the above land.
Brief facts of the case are that the private respondents filed two separate suits in the Court of Sub Division Officer, Girwa, District Udaipur (hereinafter to be referred as 'the SDM') for declaration and permanent injunction under Sections 188, 88, 63(1)(4) and 92-A of the Tenancy Act claiming that their ancestor Bhero Singh was the owner of 19.1 Bighas of land in village Savina, Tehsil Girwa, District Udaipur falling in Khasra Nos.587 and 548. It is claimed by the private respondents that the land of the above referred Khasras was duly recorded in the name of their (Downloaded on 07/09/2022 at 09:52:28 PM) (4 of 16) ancestor Bhero Singh and thereafter his predecessors in the revenue record.
It is contended by the private respondents that during the settlement proceedings, the land of Khasra Nos.548 and 587 was converted into new Khasra Nos. 1631 and 1632. It is further contended that 2 bighas (0.4320 hectare) of land of the private respondents falls in Khasara No.548 but while converting the Khasra No.548 into new Khasra No.1623 only 0.1650 hectare of land has been recorded in the name of respondents and as such remaining 0.2670 hectare of land has not been recorded. It is also alleged that the land measuring 17.01 Bighas falling in old Khasra No.587 has not been recorded in the name of private respondents instead the same has inadvertently been recorded as Bilanam in the new settlement and thereafter allotted to the petitioner-UIT.
The private respondents in the revenue suits have prayed that they may be declared as Khatedar of the above referred land, which has now been recorded in the name of petitioner-UIT and they have also prayed for issuing a permanent injunction against the UIT, so that the UIT should not interfere in their rights.
The above referred suits were contested by the petitioner-UIT while contending that the disputed land is now recorded in the name of it and, therefore, the relief prayed for in the revenue suits cannot be granted. Some technical objections regarding non-issuance of notice under Section 80(2) CPC have also been raised by the petitioner-UIT.
On the basis of the pleadings of the parties, the SDM has framed issues in both the suits and proceeded with the suits. (Downloaded on 07/09/2022 at 09:52:28 PM)
(5 of 16) The SDM suo moto called for the report from Tehsildar concerned with a direction to ascertain the facts regarding conversion of all Khasras into new Khasras and the lands recorded in new Khasras. In response to it, the Tehsildar concerned filed a detailed report.
The SDM has decided all the issues together, however, dismissed the revenue suits filed by the private respondents while recording a finding that the private respondents have failed to prove that their Khatedari land falling in Khasra Nos.587 and 548 is converted into new Khasra Nos.1631 and 1632. It is also concluded by the SDM that the lands of Khasra Nos.1631 and 1632 contain large chunk of land and the private respondents have failed to prove that in which part of these khasras, khatedari land of them is situated. The SDM has also observed that from the report of the Tehsildar, it cannot be concluded that the khatedari land of the private respondents is wrongly entered as Bilanam during the settlement operations.
Being aggrieved with the judgment passed by the SDM dated 02.05.2017 in the revenue suits filed by the private respondents, the private respondents have preferred separate appeals before the Land Settlement Officer-cum Revenue Appellate Authority, Udaipur (hereinafter to be referred as 'the RAA'). The RAA vide judgment dated 19.06.2017 allowed those appeals and set aside the judgment and decree dated 02.05.2017 passed by the SDM and remanded the matter to the SDM with certain directions that it may conduct a re-enquiry to ascertain that khatedari land of the private respondents is not recorded in some other khasras than the Khasra Nos. 1631 and 1632 and (Downloaded on 07/09/2022 at 09:52:28 PM) (6 of 16) after satisfying itself on this aspect may pass a fresh order in the matter.
Being aggrieved with the judgment dated 19.06.2017 passed by the RAA, the petitioner-UIT preferred two separate appeals before the BOR, which has passed the judgments, which are under challenge.
Assailing the validity of the impugned judgments, learned counsel for the UIT has argued that the BOR has grossly erred in decreeing the suits filed by the private respondents while exercising powers under Order 41 Rule 33 CPC. It is contended that in the absence of any appeal or cross-objection filed by the private respondents, the BOR has grossly erred in decreeing the suit filed by the private respondents.
It is further argued that the respondents before filing the revenue suits had not served any notice upon the petitioner- UIT under Section 80(2) CPC. In such circumstances, the revenue suits preferred by them are liable to be dismissed on this count alone.
It is argued that the BOR as well as RAA have wrongly placed reliance on the report filed by the Tehsildar, which was not prepared in the presence of any representative of the petitioner-UIT.
It is also argued that the Devasthan Department was not authorized under any law to allot the land belonging to a deity and as such the allotment of land in favour of Bhero Singh and other respondents was void ab initio.
It is also contended by the counsel for the petitioner- UIT that the BOR has illegally marked the matter as 'part heard' (Downloaded on 07/09/2022 at 09:52:28 PM) (7 of 16) and illegally rejected the application filed on behalf of the petitioner-UIT to release the appeals from part heard, so that another Bench may take up the appeals for adjudication.
Learned counsel for the petitioner has also submitted that one of the Members of the BOR was arrested by the Anti Corruption Bureau in relation to a case and charge-sheet has also been filed against him alleging that he, in connivance with one of the Advocates, practicing at BOR, was indulged in passing favourable judgments in favour of the private respondents by accepting illegal gratification and taking into consideration this fact alone, the judgment passed by BOR is liable to be set aside.
Learned counsel for the petitioner-UIT has also submitted that the SDM has rightly dismissed the revenue suits filed by the private respondents as they have failed to prove their case before it, however, the learned RAA as well as the BOR without appreciating the correct position of fact and law has illegally passed the impugned judgments. Learned counsel for the petitioner has, therefore, prayed that these writ petitions may be allowed and the impugned judgments may kindly be set aside and the decree passed by the SDM may be affirmed.
Opposing the writ petitions, Mr. Girish Joshi appearing on behalf of the respondents has argued that the BOR has not committed any illegality in passing the impugned judgments. It is argued that from the evidence available on record, it is clear that land of old Khasra No.587 admeasuring 17.01 Bighas was illegally recorded as Bilanam though the same was Khatedari land of the respondents and mutation entries have also been made in their favour. It is further submitted that out of 0.4320 hectares of land (Downloaded on 07/09/2022 at 09:52:28 PM) (8 of 16) of Khasra No.548 in the new settlement, only 0.1650 hectares of the land has been recorded in new Khasra No.1623 and as such the land admeasuring 0.2670 hectares has not been recorded. It is submitted that from the report of the Tehsildar submitted before the SDM, it is clear that some khatedari lands of the private respondents have been recorded in the revenue record as Bilanam illegally and some less khatedari lands of them have been recorded. It is argued that taking into consideration the above facts and circumstances of the case, the BOR has not committed any illegality in passing the impugned judgments.
Learned counsel for the respondents has further submitted that the BOR has not committed any illegality in exercising the powers under Order 41 Rule 33 of CPC as the RAA has failed to make any order which ought to have been made in the facts and circumstances of the case.
It is contended that there is no evidence on record to suggest that one of the Members of the BOR is charged for taking illegal gratification in the present matter and even if it is assumed that the said member was arrested and charge-sheeted for illegal gratification in some other matter, the impugned judgment passed by the BOR cannot be set aside on this ground until and unless any such evidence is produced that in this matter also, the said member has committed any misdeed.
It is further submitted that along with revenue suits the respondents also filed an application seeking exemption from issuing notices under Section 80 CPC and Section 98 of the UIT Act before the SDM and in such circumstances, it cannot be said that the revenue suits filed by the respondent are liable to be (Downloaded on 07/09/2022 at 09:52:28 PM) (9 of 16) dismissed for non-compliance of Section 80 CPC and Section 98 of the UIT Act.
Learned counsel for the private respondents has, therefore, prayed that the writ petitions filed on behalf of the petitioner - UIT may kindly be dismissed.
Heard learned counsel for the parties and perused the impugned judgment as well as the material available on record.
The respondents have filed revenue suits before the SDM essentially with the grievance that the land of old Khasra Nos.548 and 587 is recorded in the name of their names and has wrongly been recorded as Bilanam in the new settlement while fixing the land of above referred Khasra numbers in new Khasra Nos.1631 and 1632. It is also contended that the land of old Khasra No.548 admeasuring 0.4320 hectares of land was in their names but in the new settlement the said land is fixed in Khasra Nos.1623 and only 0.1650 hectares has been recorded and as such the land admeasuring 0.2670 hectares has been less recorded.
The SDM suo moto called for the report from the Tehsildar concerned to clarify the position and the Tehsildar concerned filed a detailed report after inspecting the site and conducting measurement through revenue officials. It is appropriate to reproduce the report of the Tehsildar concerned on which the BOR as well as RAA have placed reliance. The relevant portion of the said report is reproduced herein under:
"jktLo xzke lohuk ¼uohu jktLo xzke usyk½ ds gky vkjkth uacj 1631 jdck 2-4700 gSDVj ,oa vkjkth uacj 1632 jdck 5-7000 gSDVj dk lkfcd (Downloaded on 07/09/2022 at 09:52:28 PM) (10 of 16) Hkw&vfHkys[k ,oa lkfcd Vªsl rFkk gky Hkw&vfHkys[k ,oa gky uD'kk Vªsl] feyku {ks=Qy o ekSds dh fLFkfr ds vuqlkj ijh{k.k djus ij fLFkfr ,oa rF;kRed fjiksVZ fuEu çdkj gS %& 1- ;g fd jktLo xzke lohuk dh lkfcd vkjkth uacj 548@1 jdck 2 ch?kk ,oa vkjkth uacj 587@1 jdck 8 ch?kk 16 fcLok dqy fdrk 2 jdck 10 ch?kk 16 fcLok Hkwfe Ø; djus ls tfj;s lkfcd ukekUrjdj.k la[;k 09 fnukad 22&12&1954 }kjk Jh mEesnflag] Hkaojflag firk HkS:flag jktiwr lkfdu nsg ds uke jktLo jsdkMZ esa ntZ gqbZ] tks lkfcd tekcUnh laor~ 2026 ls 2029 rd bUgha ds uke ;Fkkor ntZ jghA 2- ;g fd lkfcd vkjkth uacj 587@1 esa jdck 8 ch?kk 5 fcLok Hkwfe vkoaVu gksus ls tfj;s ukekUrjdj.k la[;k 940 fnukad 08&11&1977 }kjk mEesnflag] Hkaojflag] vksukM+flag firk HkS:flag] prjflag firk ukgjflag jktiwr lkfdu nsg ds uke xSj [kkrsnkjh gd ls ntZ gqbZ tks lkfcd tekcUnh laor~ 2030 ls 2033 rd esa ;Fkkor bUgha ds uke ntZ jghA 3- ;g fd mijksäkuqlkj lkfcd jktLo jsdkMZ esa lkfcd vkjkth uacj 548 esa 02 ch?kk rFkk lkfcd vkjkth uacj 587 esa ¼08 ch?kk 16 fcLok $ 08 ch?kk 05 fcLok½ dqy 17 ch?kk 01 fcLok Hkwfe çkFkÊx.k ds uke ntZ FkhA 4- ;g fd uohu lsVyesUV ¼iSekbZ'k½ gksus ds i'pkr feyku {ks=Qy esa ntZ lkfcd vkjkth uacj 548 ds uohu ¼gky½ vkjkth uacj 1616 ls 1647] 1657 ls 1660] 1663] 1667 dqy fdrk 38 jdck 13-5100 gSDVj rFkk lkfcd vkjkth uacj 587 ds uohu ¼gky½ vkjkth uacj 1225 ls 1227] 1230 ls 1234] 1236 ls 1285] 1301 ls 1306] 1321 ls 1423] 1425 ls 1455] 1459 ls 1461] 1479] 1480 dqy fdrk 103 jdck 27-4500 gSDVj cuuk cuk;k x;k gSA 5- ;g fd mijksä lkfcd vkjkth uacj 548 jdck 02 ch?kk ¼0-4320 gSDVj½ Hkwfe tks çkFkÊx.k ds uke ntZ Fkh] og uohu lsVyesUV ¼iSekbZ'k½ gksus ds i'pkr~ mlds gky vkjkth uacj 1623 jdck 0- 1650 gSDVj cuk Hkwfe çkFkÊx.k ds uke ntZ dh xbZA bl çdkj lkfcd jdcs ds eqdkcys gky jktLo jsdkMZ esa 0-2670 gSDVj jdck çkFkÊx.k ds uke de ntZ fd;k x;kA 6- ;g fd mijksäkuqlkj lkfcd vkjkth uacj 587 esa ¼08 ch?kk 16 fcLok $ 08 ch?kk 05 fcLok½ dqy 17 ch?kk 01 fcLok tks jdck lkfcd jsdkMZ esa çkFkÊx.k ds uke ntZ Fkk og iwjk jdck uohu lsVyesUV ¼iSekbZ'k½ gksus ds i'pkr çkFkÊx.k ds uke ntZ djus ds ctk; fcykuke ntZ dj fn;k x;kA 7- ;g fd mijksäkuqlkj çkFkÊx.k ds lkfcd [kkrksa ds eqdkcys lkfcd vkjkth uacj 548 dk 0-2670 gSDVj jdck de ntZ fd;k x;k rFkk lkfcd vkjkth uacj 587 dk çkFkÊx.k ds uke jdck 17 ch?kk 01 fcLok ¼3-6838 gSDVj½ uohu lsVyesUV ¼iSekbZ'k½ esa fcykuke ntZ dj fn;k x;kA (Downloaded on 07/09/2022 at 09:52:28 PM) (11 of 16) 8- ;g fd lkfcd uD'kk ¼dkyh ykbZu½ ,oa gky uohu uD'kk ¼yky ykbZu½ dks leku Ldsy ¼iSekus½ esa lqij bEikst dj nksuksa uD'kksa dk feyku ,oa rqyuk djus ij fuEu fLFkfr ikbZ xbZ %& ¼A½ feyku {ks=Qy esa gky vkjkth uacj 1631 esa lkfcd vkjkth uacj 548 ls cuuk crk;k x;k gS] tcfd blesa lkfcd vjkth uacj 548 dk 0-6530 gSDVj rFkk lkfcd vkjkth uacj 587 dk 1-9010 gSDVj jdck lfEefyr gSA (B) feyku {ks=Qy esa gky vkjkth uacj 1632 esa lkfcd vkjkth uacj 548 ls cuuk crk;k x;k gS] tcfd blesa lkfcd vjkth uacj 548 dk 1-7050 gSDVj rFkk lkfcd vkjkth uacj 587 dk 2-6820 gSDVj rFkk lkfcd vkjkth uacj 548 dk 1-
2950 gSDVj jdck lfEefyr gSA (C) lkfcd vkjkth uacj 548 dk jdck gky vkjkth uacj 1616 ls 1624 dk lEiw.kZ jdck ,oa vkjkth uacj 1625] 1626 ,oa 1627 ds vkaf'kd jdcs esa lfEefyr gS] ftlesa ls vkjkth uacj 1623 çkFkÊx.k ds uke ntZ gSA 9- ;g fd mijksä rF;ksa ds vkèkkj ij ;g Li"V gS fd lsVyesUV foHkkx }kjk gky vkjkth uacj 1631 o 1632 dk tks feyku {ks=Qy cuk;k x;k gS og =qfV iw.kZ gSA gky vkjkth uacj 1631 dsoy lkfcd vkjkth uacj 548 ls ugha cudj blesa lkfcd vkjkth uacj 587 dk jdck Hkh lfEefyr gSA blh çdkj gky vkjkth uacj 1632 dsoy lkfcd vkjkth uacj 548 ls ugha cudj blesa lkfcd vkjkth uacj 587 ,oa 548 dk jdck Hkh lfEefyr gSA 10- ;g fd oknxzLr gky vkjkth uacj 1631 o 1632 iwoZ esa fcykuke ntZ Fks tks ckn esa uxj fodkl çU;kl] mn;iqj ds uke ntZ gksdj orZeku uohu jktLo xzke usyk dh tekcUnh laor~ 2070 ls 2073 esa Hkh uxj fodkl çU;kl] mn;iqj ds uke ntZ gSA bl çdkj mijksä rF;ksa ls Li"V gS fd xzke lohuk ¼usyk½ ds gky vkjkth uacj 1631 o 1632 dk feyku {ks=Qy =qfV iw.kZ gS rFkk gky vkjkth uacj 1623 jdck 0-1650 gSDVj çkFkÊx.k ds uke ntZ gksus ds i'pkr~ de iM+ jgk 0-2670 gSDVj jdck mä vkjkth uacj 1623 ds ikl fLFkr lkfcd vkjkth uacj 548 ls tks gky vkjkth uacj cus gSa] mlesa lfEefyr gks x;k gS ,oa lkfcd vkjkth uacj 587 dk tks jdck ¼08 ch?kk 16 fcLok $ 08 ch?kk 5 fcLok dqy jdck 17 ch?kk 01 fcLok½ lkfcd jsdkMZ esa çkFkÊx.k ds uke ntZ Fkk og gky vkjkth uacj 1631 o 1632 esa lfEefyr gksuk tkfgj gksrk gSA"
Form perusal of the aforesaid report, it is clear that the Tehsildar concerned in his report has concluded that old land of Khasra Nos.548 and 587 is fixed in new Khasra Nos.1631 and (Downloaded on 07/09/2022 at 09:52:28 PM) (12 of 16) 1632. It is also concluded by the Tehsildar that the lands of Khasra Nos.548 and 587 were recorded in the name of respondents in the revenue record but while fixing the same in new khasra number in settlement operation, 17.01 Bighas of land has been recorded as Bilanam and allotted to the petitioner - UIT.
The Tehsildar has further concluded that two bighas of land of Khasra No.548 was recorded in the name of the respondents, however, in the settlement, the said land is fixed in new Khasra No.1623 but only 0.1650 hectares of the land is recorded in the name of the respondents and 0.2670 hectares of the land has not been recorded in their names.
As a matter of fact, the respondents have filed the revenue suits only raising the grievance that during new settlement, their lands admeasuring 17.01 bighas has wrongly been recorded as Bilanam and 0.2670 hectares of the land has been less recorded in their names.
Form the report of the Tehsildar, it can be gathered that the contention raised by the private respondents in the revenue suits have been fully accepted. The petitioner-UIT has failed to counter the said factual position before the SDM as well as before both the appellate courts by producing any cogent, documentary or ocular evidence. In such circumstances, this Court is of the opinion that finding of fact recorded by both the appellate courts, on the basis of the report of the Tehsildar, is not liable to be interfered with.
So far as argument of the learned counsel for the petitioner-UIT that the BOR has erred in invoking the powers under Order 41 Rule 33 CPC is concerned, this Court is of the (Downloaded on 07/09/2022 at 09:52:28 PM) (13 of 16) opinion that the same is having no merits and is liable to be rejected because the RAA while relying on the report of the Tehsildar has given a specific finding that the lands of private respondents have wrongly been recorded as Bilanam and has also been less recorded during the settlement operations but remanded the matter to the SDM with the direction to ascertain whether the land of Khasra No.587/1= is fixed in some other Khasra numbers or not. It is noticed that the report of the Tehsildar is exhaustive wherein he has clarified that the land of old Khasra Nos.548 and 587 is fixed in the new Khasra Nos.1631 and 1632 only, then there was no occasion for the RAA to ask the SDM to further conduct an enquiry in the matter. Once the appellate court had concluded that the claim of the respondents is proved, it ought to have passed the consequential order as per the reliefs claimed in the revenue suits by the respondents. Order 41 Rule 33 of CPC empower an appellate court to pass any decree or to make any order which ought to have been passed or made as the case may require though the parties have not filed any appeal or cross objection.
The Hon'ble Supreme Court in Pralhad and Ors. vs. State of Maharashtra and Ors. reported in (2010) 10 SCC 458, while defining the scope of Order 41 Rule 33 CPC has observed as under:
"18. The provision of Order 41, Rule 33 of CPC is clearly an enabling provision, whereby the Appellate Court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the Appellate Court is empowered to pass any Order which ought to have (Downloaded on 07/09/2022 at 09:52:28 PM) (14 of 16) been made as the case may require. The expression 'Order ought to have been made' would obviously mean an Order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying 'the court may pass such further or other Order as the case may require.' This expression 'case' would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
19. In fact, the ambit of this provision has come up for consideration in several decisions of this Court. Commenting on this power, Mulla (CPC, 15th Edition, pg. 2647) 12 observed that this Rule is modelled on Order 59, Rule 10(4) of the Supreme Court of Judicature of England, and Mulla further opined that the purpose of this rule is to do complete justice between the parties."
As observed earlier, once the RAA has concluded that the claim of the private respondents raised in the revenue suits has been proved from the report of Tehsildar, the RAA ought to have passed a decree declaring the respondents as Khatedar for the land in question and to restrain the UIT from interfering in the rights of the respondents, however, the RAA has failed to do so and then the BOR has not committed any illegality in exercising the powers under Order 41 Rule 33 CPC and in declaring the respondents as Khatedar of the land and to restrain the petitioner-UIT from interfering in their rights.
It is noticed that the petitioner-UIT did not raise any objection regarding the report of the Tehsildar before the SDM and in such circumstances, now it is not open for the petitioner-UIT to contend that the BOR as well as RAA have wrongly placed reliance on the report of the Tehsildar as the same was not prepared in the presence of any representative of the petitioner-UIT.
So far as other contention of the petitioner-UIT that the respondents before filing the revenue suits had not served the (Downloaded on 07/09/2022 at 09:52:28 PM) (15 of 16) notice upon the UIT under Section 80(2) CPC is concerned, it is noticed that the copy of the revenue suit is filed along with preliminary reply filed on behalf of the respondent in SBCWP No.7196/2021 and it is evident that the respondents have moved two applications seeking exemption from service of notice upon the petitioner-UIT under Section 80(2) CPC and Section 98(4) of the UIT Act, though it is not clear that whether such exemption was granted by the SDM or not, however, it is also true that no such issue has been framed by the SDM in the revenue suits in respect of non-compliance of notice under Section 80 CPC and Section 98 of the UIT Act.
So far as other contention of the petitioner to the effect that the Devasthan Department was not authorized under any law to allot the land belonging to a deity is concerned, from the reply filed on behalf of the petitioner-UIT in the revenue suit No.28/12, copy of which is annexed with the preliminary reply of the respondents in SBCWP No.7196/2021, no such contention has been raised by the petitioner-UIT in its reply to the revenue suit and obviously no such issue was framed by the SDM.
It is claimed by the petitioner-UIT that the request made on behalf of it before the BOR to release the matter from the Bench, which had passed the order, has illegally been rejected. This Court is of the opinion that simply because the Bench of BOR has refused to release the matter from part heard, the same cannot be a ground of setting aside the impugned judgments.
So far as another contention of the learned counsel for the petitioner-UIT that one of the Members of Division Bench of the BOR, which passed the impugned judgment, was arrested and (Downloaded on 07/09/2022 at 09:52:28 PM) (16 of 16) charge-sheeted by the Anti Corruption Bureau in some other case is concerned, simply because one of the Members of the BOR, which passed the impugned judgment, was arrested and charge- sheeted in some other case by the Anti Corruption Bureau, the impugned judgment cannot be interfered with until and unless, some evidence is available on record that in the present matter, the said member has also received some illegal gratification from any of the party. Apart from that, the impugned judgments have been delivered by a Division Bench of BOR headed by its Chairman and it is not alleged by the petitioner-UIT that the Chairman of BOR, who headed the Bench was also indulged in corrupt practice.
In view of the above observations, I do not find any illegality in the impugned judgments passed by the Board of Revenue. Hence, there is no force in these writ petitions and the same are hereby dismissed.
There shall be no order as to costs.
Stay petitions also stand dismissed.
(VIJAY BISHNOI),J masif/-PS (Downloaded on 07/09/2022 at 09:52:28 PM) Powered by TCPDF (www.tcpdf.org)