Dismissed

Ramavatar and Ors. v. B O R and Ors.

Rajasthan HC14 Feb 2008CW/1344/2008

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging orders upholding a Revenue Board decision. The court found the impugned decree was procured by fraud, rendering the reversal by appellate authorities justified, and held no remand was necessary as possession of joint khatedaris is collective.

What did the court decide?

The writ petition was dismissed as there was no reason to remit the matter for retrial.

Ramavatar and Ors. Vs B O R and Ors. — Landlord and Tenant | Rajasthan HC (2008)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. CIVIL WRIT PETITION NO.1344/08
Ramavtar & Ors. Vs. Board of Revenue &
Ors.

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Date of order : 14/2/2008.

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HON'BLE MR.JUSTICE MOHAMMAD RAFIQ

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Shri Yogesh Kumar Sharma for the
petitioners.

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Shri D.P. Sharma for the respondent no.5.
******

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Heard learned counsel for the parties.

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The writ petition has been filed
against the judgment of the Revenue Board
dated 5.2.08 whereby the judgment of the
Revenue Appellate Authority was upheld by
the Board of Revenue. The Revenue

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Appellate Authority by its judgment dated
31.7.2006 while allowing the appeal
preferred by the respondent nos.3 & 4, set
aside the judgment and decree dated
11.12.1989 passed by the SDO, Sikar.

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Learned counsel for the petitioners
has argued that the appeal preferred by

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the respondent nos.3 & 4 before the
Revenue Appellate Authority was enormously
time barred as the same was filed 17 years
after the date of the judgment and decree.
No proof of the fact has been furnished as
to whether Heera Lal was then alive or had
died inasmuch as no proof of the fact was
furnished that respondent no.3 Rajendra
was son of Heera Lal and that Smt. Phooli
Devi was his widow. Learned counsel
submitted that if at all the Revenue
Appellate Authority wanted to entertain
and allow the appeal, proper course was to
remand the matter back to the SDO rather
than dismissing the suit by reversing the

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decree. It was argued that Board of
Revenue has also erred in law in
dismissing the appeal preferred by the
petitioner while relying on the documents

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that were cited before the Board of

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Revenue for the first time. Learned

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counsel argued that the Board could not
refer to the documents showing the joint
tenancy of the predecessor in title
respondent nos.3 and 4 and that of the
petitioner.

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Learned counsel for the petitioner
cited the judgment of Supreme Court in
Smt. Sudha Devi vs. M.P. Narayanan & Ors.-
AIR 1988 SC 1381 and argued that in case
where the decree is set aside in appeal on
account of insufficient ground, the proper
course is to remand the matter for fresh
trial. It was therefore prayed that the
judgment passed by the Revenue Appellate
Authority and Board of Revenue are
therefore liable to be set aside.

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Shri D.P. Sharma, learned counsel, who
has put in appearance on behalf of the
respondents by way of caveat however
opposed the writ petition and argued that
the decree from the first court was

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obtained by the petitioner by exercising
fraud on the Court inasmuch as while Heera
Lal was residing in State of Gujarat, his
service was shown to have been affected by

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affixing of the notice on the Gram
Panchayat and still the additional plea

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was set up that there was no person
existing by the name of Heera Lal and
therefore his name should be removed from

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the revenue records of the half of the

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lands of khasra nos.110, 111, 113, 114,
223, 224, 805, 669/1218 measuring 98
bighas and 16 biswas should be entered in
the name of the petitioners. Learned
counsel for the respondent referred to the
certified copies of the khasra girdwaries
of Svt. 2013, 2020-23, 2024-27, 2028-31
and even of 2041-44 argued that entire
land in dispute was recorded in the joint
khatedari of Rugha Ram and Kanhaiyalal S/o
Suraj Mal and Gopiram S/o Bhajraj. Gopiram

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being father of Heera Lal. Delay in the
matter would not be affect their rights
because possession of one joint khatedar
is considered to be possession of all.
Learned counsel submitted that delay in
any case cannot defeat the justice where
it is shown that the decree of the Court

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has been obtained by exercising fraud.
Learned counsel submitted that when the
Revenue Appellate Authority on examination
of complete records has passed the order
which achieves substantial justice, remand
of the matter would be wholly unnecessary.

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Having heard the learned counsel for
the parties and perused the impugned
judgments as also other material forming
part of the record, I find that the land
in dispute has all along being shown in
the joint khatedari of the predecessor in
title of the petitioner and the defendant
respondents. The plea set up by the

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petitioner that no one exist by the name
of Heralal in Vilage Karad and obtaining
record to this effect and yet at the same
time getting service affected on such non-
existent Heera Lal by affixing notice on
Gram Panchayat cannot be appreciated and
approved.

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In the circumstances, I am inclined to
uphold the argument that the decree indeed
was procured by the petitioner by
exercising fraud on the Court and even if
there is some delay, reversal of decree by
Revenue Appellate Authority and the Board
of Revenue was not unjustified. Now when
this Court on examination of relevant
records finds that the land was always in
joint khatedari of the predecessor-in-
title of the petitioner and the contesting
respondents, remand of the matter merely
for the purpose of fresh trial would not
be necessary. In the case of joint

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khatedari, possession of one khatedar
cannot be taken adverse to another one
because possession of one is considered to
be possession of all.

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In so far as the judgment cited by
learned counsel in Smt. Sudha Devi, supra,
is concerned, that of course is a case

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where while setting aside the ex-parte
decree in appeal on ground of insufficient
evidence, it was remanded for re-trial.
The judgment is however distinguishable
for two reasons, firstly because it was a
remand and secondly the matter was
remanded on the ground of insufficiency of
evidence.

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In view of the discussion so

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extensively made by the Revenue Appellate
Authority and the Board of Revenue and the
certified copies of the jamabandi / khasra

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girdawari, I hardly find any good reason
to uphold the argument and remand the

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matter for retrial particularly when the
judgment passed by the Revenue Appellate
Authority and the Board of Revenue have
attained substantial justice.

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I therefore do not find any good

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reason to entertain the writ petition,

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which is accordingly dismissed.

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RS/

Ramavatar and Ors. v. B O R and Ors.

Case brief

What is this about?

What did the court decide?

Ramavatar and Ors. v. B O R and Ors.

Case brief

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