S.B. Civil Writ Petition No. 1137/2010. Case: Shyonath and Ors. Vs Rajasthan Board of Revenue Ajmer and Ors.. Rajasthan High Court

Case NumberS.B. Civil Writ Petition No. 1137/2010
CounselFor Appellant: R.K. Goyal, Peush Nag and Raghvendra Singh, Advs. and For Respondents: Reashm Bhargava, Adv.
JudgesAlok Sharma, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order VI Rule 17; Order XLI Rule 27; Constitution of India - Articles 226, 227; Rajasthan Tenancy Act, 1955 - Sections 135, 188, 5(43), 92A; Transfer of Property Act, 1882 - Sections 54, 9
Judgement DateMay 27, 2015
CourtRajasthan High Court

Order:

Alok Sharma, J.

1. The petitioners-defendants (hereinafter "the defendants") challenge the judgment and decree dated 10.09.2009 passed by the Board of Revenue, Ajmer (hereinafter "the Board"). Thereby the Board has set aside the judgment and decree dated 19.09.1997, passed by the Revenue Appellate Authority, Ajmer (hereinafter "RAA") upholding the judgment and decree date 08.02.1979, passed by the Assistant Collector (U/N), Ajmer dismissing the respondents-plaintiffs' (hereinafter "the plaintiffs) suit for permanent injunction under Section 188 of the Rajasthan Tenancy Act, 1955 (hereinafter "the Act of 1955").

2. The facts relevant to the case are that the plaintiffs filed a suit bearing No. 38/1978 in the Court of the Assistant Collector, Ajmer on 01.09.1975 stating that they by way of an oral sale purchased land ad measuring 4 bishwa 10 biswa 10 biswansi in khasra No. 802 from one Nauratmal on 26.08.1970 and came into possession. It was submitted that consequently in the khasra girdawari of samvat 2030 & 2031 (1974 & 1975) the plaintiffs' possession was reflected. And that possession continued thereafter and yet the defendants were bent upon dispossessing the plaintiffs from the land in issue. A decree of permanent injunction was therefore sought against the defendants. On service of notice, a written statement of denial was filed by the defendants stating that they were the recorded khatedar of the suit land and had been in its possession in all times. The plaintiffs' possession was denied. It was submitted that the very foundation of the plaintiffs' case of having purchased the suit land from Nauratmal under an oral sale or otherwise, was baseless as he at no point of time had any khatedari therein, nor was even otherwise authorized to make the sale as alleged. The trial court i.e. Assistant Collector, Ajmer found the plaintiffs and the defendants at odds on six issues on the basis of their respective pleadings. Issue No. 1 was as to whether the plaintiffs were in cultivatory possession of the suit land. Issue No. 2 was as to whether the suit land was entered in the name of the plaintiffs in the revenue records. Issue No. 3 was as to whether on 24.08.1975 the defendants had, as alleged by the plaintiffs, sought to damage standing crops tended by the plaintiffs. Issue No. 4 was as to whether the suit land was ancestral property of the defendants and in their cultivatory possession. Issue No. 5 was as to whether Nauratmal had any right, title or authority of the defendants to sell the suit land to the plaintiffs as alleged. Issue No. 6 related to relief.

3. On consideration of the evidence laid by the respective parties, the Assistant Collector found that in khasra girdawari of samvat 2030 & 2031, even though first recorded in the name of Shyonath and Anr., the defendants, had been changed in column 24 and the name of the plaintiffs, Madhu and others entered. The plaintiffs were thus found by the trial court in possession of the suit land as the contra oral evidence of the defendants was found insufficient to displace the entry in favour of the plaintiffs in the khasra girdawari. On issue No. 2, the trial court however held that the plaintiffs had failed to establish that they were the khatedar-tenant of the suit land. On issue No. 3 it was found that there was no evidence on record to establish the plaintiffs' case that on 24.08.1997, the defendants had sought to damage the standing crops of the plaintiffs. On issue No. 4, reiterating that the defendants had failed to prove that they were in cultivatory possession of the suit land, the Assistant Collector noted that however the revenue receipt produced by the defendants showed that they i.e. Shyonath had been paying the rent for the suit land covered under khata No. 263 and had also earlier recorded as its khatedar in the jamabandi of samvat 2023 to 2026 and would be deemed to have so continued as there was no subsequent alteration in the jamabandi by an order of a competent court or sale/assignment in accordance with law. The suit land was found to be ancestral property. On issue No. 5, the trial court held that on the basis of statement of Nauratmal himself as DW-2, it was clearly established that the plaintiffs' case of having purchased the land from Nauratmal under an oral sale for a consideration of Rs. 99/- was disproved for reasons of Nauratmal's denial and also the fact that Nauratmal had no right, title or interest over the suit land or authority to convey the land to the plaintiffs by an oral sale or otherwise. In the circumstances, the suit was dismissed with costs on 08.02.1979.

4. The plaintiffs followed up with an appeal before the RAA i.e. Appeal No. 47/83. They then in appeal moved for an amendment of the pleadings under Order 6 Rule 17 CPC inter alia stating that (contrary to their specific case in the plaint) they had indeed purchased the land from Nauratmal but on Shyonath's authority. The amendment was allowed. Aside of the aforesaid, the RAA also allowed an application under Order 41 Rule 27 CPC and took on record the additional evidences at the instance of the both the parties in view of it being necessitated by the amendment to the pleadings. However, on consideration of the matter the RAA vide its judgment and decree dated 19.09.1997 affirmed the judgment and decree of the Assistant Collector, Ajmer and dismissed the plaintiffs' appeal. The plaintiffs thereupon approached the Board, which vide its judgment dated 10.09.2009 decreed the plaintiffs' suit and set aside the judgment and decree of the Assistant Collector as affirmed by the RAA primarily on two counts. (i) that the plaintiffs' possession over the suit land having been established on the basis of khasra girdawari of samvat 2030 & 2031 and there being no contra record thereafter with regard to their dispossession over the suit land, they were entitled to protection by way of permanent injunction and that (ii) as on the date of the matter before the Board, the plaintiffs' name had been entered into the revenue records as the khatedar of the suit land. Noting that the defendants had not taken any legal proceedings for seeking a declaration of the illegality of the...

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