Dismissed

Mehmood Ahmed v. B O R

Rajasthan HC8 Sept 2015CW/2732/2000

Case brief

AI extract

What is this about?

The High Court dismissed a Writ Petition challenging decisions by a Sub Divisional Officer and Appeal Authorities regarding agricultural land title. The Court held that lower courts had legally appreciated evidence proving the plaintiffs' possession prior to the 1955 Tenancy Act and refused to interfere under Article 227, rejecting limitation arguments.

What did the court decide?

Writ petition dismissed; prayers for quashing lower court judgments denied.

Mehmood Ahmed Vs B O R — Partition | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH

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ORDER

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Mehmood Ahmed & Others Vs. Board of Revenue Ajmer & Others (S.B. Civil Writ Petition No.2732/2000) Date of Order: September 8th, 2015.

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PRESENT

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HON'BLE MR. JUSTICE ALOK SHARMA

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Mr. S.C. Gupta, for the petitioners. Mr. J.P. Goyal, Senior Advocate with Mr. Abhi Goyal, for respondents.

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BY THE COURT:

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The petitioners-defendants (hereinafter `the

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defendants') have challenged the judgment dated 24-5-2000 passed by the Board of Revenue Ajmer (hereinafter `the Board') dismissing their second appeal and affirming the judgment and decree dated 18-2-1999 in first appeal passed by the Revenue Appellate Authority Sawai Madhopur in turn affirming the judgment and decree dated 29-12-1995 passed by the Sub Divisional Officer Karauli.

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The facts of the case are that on 19-11-1988 the plaintiffs Ganeshi widow of Dulli and her son Kalayan filed a suit for declaration, correction of entries and permanent

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injunction before the Sub Divisional Officer Karauli with regard to agricultural land bearing khasra No.7063, 7065, 7065/9779 and 7065/9801 (hereinafter the suit land') against the defendant Haricharan. (Subsequently following consolidation of two other suits relating to the suit land one Mehmood & another Maksood were impleaded as codefendants) with consent of all concerned on 21-9-1990. It was averred that the suit land was in the khatedari and possession of the plaintiffs and prior thereto their ancestors including Dulli since several decades and particularly at the time the Rajasthan Tenancy Act, 1955 (hereinafter the 1955 Act') came into force on 15-10-1955. Possession prior to 1955 Act was the source of legal title as provided under Section 15 of the 1955 Act, the plaintiffs submitted that in 1988 when the defendant Haricharan threatened to sell the suit land and to dispossess the plaintiffs qua the suit lands, they found that in Samvat 2015, in the course of settlement proceedings, unlawful entries without his possession or any sale-deed executed by the plaintiffs' predecessors-in-interest Dulli or order of any competent court had been made in the name of the defendant Haricharan in four of the six khasras over which their holding spread: khasra No.7064 and 7066 continued to be shown in the plaintiffs' khatedari while

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khasras 7063, 7065, 7065/9779 and 7065/9801 all carved out from khasras 5401, 5402, and 5412 in the khatedari of

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Haricharan. It was prayed that plaintiffs as the son and widow of the erstwhile khatedar Dulli as inter alia reflected in khasra Girdawari of Samvat 2006-2009, revenue entries thereafter and in possession be declared as khatedars, entries in revenue record be corrected and the defendant restrained from their illegal activity of selling the suit land.

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The suit No.142/1988 against the defendant Haricharan was filed on 19-11-1988. He thereupon immediately he unlawfully sold the land in dispute to defendants Mehmood and Maksood on 21-11-1988. Suit No.52/1990 was filed by the plaintiffs against Mahmood regarding khasra Nos.7065 and 7065/9779 and suit No.49/1990 was filed by Maksood against the plaintiff and Kalyan regarding khasra No.7065/9801 and 7065/9779.

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Written statement of denial by Haricharan was filed and

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khatedari of the suit land claimed by him by resort of multiple and mutually inconsistent pleas such as of khatedari based partition prior to the supplement with Dulli and resultant devolution, possession, revenue entries of Samvat 2010-2013, adverse possession and that the suit land having been since sold to Maksood and Mahmood the suit was not properly

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constituted in the absence of the vendors.

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Considering the pleadings of the parties, the trial court framed five issues and on conclusion of evidence decreed the suit of plaintiffs vide judgment dated 29-12-1995. Appeal thereagainst before the Revenue Appellate Authority Sawai Madhopur and thereafter the Board under Section 224 of the Rajasthan Tenancy Act, 1955 (hereinafter `the 1955 Act') too came to be dismissed on 18-2-1999. It was held by those courts that Dulli was in possession of the suit land in Samvat 2006-2009 as evident from the Khasra Girdawari, and thereafter as per revenue records, electricity bills, memorial at the well in the name of Dulli and the evidence of the witnesses, who remained firm and unshaken in their cross examination. It was held that the defendants failed to prove how they came to acquire the khatedari rights in the suit land thereafter without any registered sale-deed or order of a competent court or even their possession. The defendant Haricharan was found with no title in the suit land and hence incapable of transferring a better title to the defendants Mehmood and Maksood, immediately i.e. 2 days after filing of the plaintiffs' suit. The trial court's judgment of decree has been affirmed by the Revenue Appellate Authority and the

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Board. Hence this petition.

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Mr. S.C. Gupta, counsel for the defendants has submitted that the judgment rendered by the court of Sub Divisional Officer Karauli as upheld upto the Board is liable to be set aside for misreading the defendants' documents and decreeing the plaintiffs' suitcase despite no evidence. Counsel submitted that the plaintiffs had failed to discharge their burden of proof, on which alone the suit could have been decreed without any capital being made out of the purported contradictions in the defence case/ evidence. It was submitted that the judgments of the courts below are based on mere conjectures and surmises and overlooked the fact that petitioners' suit at least to the extent of relief for injunction was hit by limitation in terms of Entry 8A in Schedule 3 of the 1955 Act, where under a suit for injunction could be filed only within three years following the cause of action. It was submitted that the plaintiffs' suit seeking permanent injunction was filed after 30 years and ought to have been dismissed on this ground alone.

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Per contra, Mr. J.P. Goyal, Senior Advocate appearing with Mr. Abhi Goyal for the plaintiffs submitted that this court in the exercise of its powers under Article 227 of the

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Constitution of India ought not to interfere with the findings of three courts below on the issue of possession immediately prior to enforcement of the Act of 1955 and possession even thereafter based on appreciation of evidence as they cannot be said to be perverse. Without prejudice to the above contention, it was submitted that there could be no view other than of the court's below from evidence on record, as laid by plaintiffs in support of their suit. Counsel submitted that contrary to the defendants' case that the plaintiffs' suit has been decreed without any evidence and on misreading of defendants' evidence, a bare reading of judgment of the courts below indicates that plaintiffs produced sufficient material evidence of strong probative worth in support of their case such as Khasra Girdawari of Samvat 2006-2009, and 2012, Khatoni Bandobast of Samvat 2015, Electricity consumption bill of 2412-1978, 24-9-1988, and 24-6-1988, regarding the suit land standing to the name of their ancestors. Milan Kshetrafal of old kharas and new khasras, Jamabandi, Khewat Khatoni, Jamabandi of Samvat 2010-2013, Khasra Tarmim of Samvat 2012. The plaintiffs' evidence was evaluated vis-a-vis the defendant Haricharan's defence on mutually contradictory pleas of being the trustee of Dulli, a partition prior to the settlement of Samvat 2015, adverse possession, independent

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prior possession at the time of settlement of Samvat 2015, spare documentary evidence such as Jamabandis of Samvat 2013-15, demarcation report of 13-6-1990, oral evidence of legal probative worth and consequent inability to displace the very substantial evidence of the plaintiffs. On the test of preponderance of probability—the requisite test in a revenue suit, as in civil suits, the plaintiffs' suit has been rightly decreed.

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It was submitted that three suits with regard to the suit land were filed, one No.142/1988 by Ganeshi widow of Dulli and son Kalyan against Haricharan, a second one No.49/1990, filed by Ganeshi and Kalyan against Mehmood, to whom subsequent to filing of the suit No.142/1988 the land in issue had been sold by Haricharan, and three, No.52/1990 filed by Maksood, another lis pendis purchaser of the suit land from Haricharan subsequent to the laying of suit No.142/1988, wherein Ganeshi and Kalyan were impleaded as defendants. These suits No.49/1990 and 52/1990 were consolidated on 21-9-1990 with Suit No.142/1988 and Mahmood and Maksood arrayed as defendants in Suit No.142/1988. It has been submitted that in the circumstances the evidence laid in all the three suits were therefore admissible for determination of dispute between the parties, as has been done by the trial

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court in its well considered order. It was submitted that the courts below have found that plaintiffs and prior to them their predecessors in interest had been in khatedari/ possession of agricultural land in dispute at least effective Samvat 2009. Thereafter there was no sale-deed or order of any competent court for conveying the rights to Haricharan as khatedar. The entry in revenue record of Samvat 2010-2013 in respect of part of such agricultural land was thus wholly unauthorised, illegal and of no effect. From the evidence of plaintiffs' witnesses Kalyan (Pw.1), Popal (Pw.2) and Gordhan (Pw.3) and revenue documents on record, as also the electricity bills of 24-9-1988, 24-6-1988 and 24-12-1978, and the measuring in khasra Nos.7065, 7065/9801 & 7065/9779 in the name of Dulli, it was well established that the plaintiffs were also in possession of the land in issue at all times. Senior counsel then submitted that the defendants' contention with regard to limitation is untenable as for, one, the Act of 1955 does not provide for limitation for laying a suit for declaration or for correction of entries. Further, as far as the relief for injunction in the plaintiffs' suit is concerned, it was submitted that cause of action arose when actual threat of dispossession emanated from Haricharan in November, 1988.

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Heard. Considered.

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It would be in place to note the limitations of this court under Article 227 of the Constitution of India in interfering with findings of facts arrived at on appreciation of evidence on record by the courts/ tribunals below. No new document can be entertained by this court in such proceedings based on the exercise of superintending jurisdiction. This power is only available to maintain public confidence in the administration of justice and interference is warranted only when the orders impugned evidence perversity, issues of lack or excess of jurisdiction or are vitiated by misdirection in law leading to manifest injustice to the aggrieved party. New evidences cannot be permitted consideration as if in original proceedings lest the impugned judgments of the courts below are evaluated on material/ evidence not before the courts. In my considered opinion, in the facts of this case as obtaining before this court, no ground for interference is even remotely made out. A bare look at the judgments and decree passed by the courts below clearly spells out that the issues agitated before the courts below have been soundly addressed in well considered judgments passed on an objective analysis of the parties' evidence. I do not find any force in Mr. Gupta's contention that the impugned judgments dated 24-5-2000, 18-2-1999 and 29-12-1995 are perverse to the evidence on

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record, exclude the consideration of the defendants' evidence, or one founded upon surmises and conjectures.

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If one reads judgments in the case of Annaimuthu Thevar Vs. Alagammal [(2005)6 SCC 202] and RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami & VP Temple [(2003)8 SCC 752] together the Hon'ble Apex Court can be stated to have held that the relative strength of the title of the contesting parties is determinative as once the plaintiff discharges the initial burden of proof of his title, on his evidence and then the defendant fails to discharge his onus on the issue. The suit is entitled to be decreed. Such a situation obtains in the present case. The Hon'ble Apex Court in the case of Venkatachala Gounder (supra) has further held that proof of title based on appreciation of evidence is a question of fact and does not warrant interference in a second appeal under Section 100 CPC. This principle would apply with more rigor to a challenge to a finding of khatedari rights in a petition under Article 227 of the Constitution of India. I therefore, find no occasion to interfere with the findings of the three courts below on the question of the khatedari of the plaintiffsrespondents qua the suit land.

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The argument that the plaintiffs' suit was hit by

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limitation qua the relief of injunction is also vacuous and overlooks the cause of action in 1988 as set up by the plaintiffs. From the facts on record the relief for injunction was based on the defendant Haricharan's threat of selling off the suit land in November, 1988. Suit No.142/1988 for declaration, correction of entries and injunction was filed immediately thereafter on 19-11-1988, and hence not hit by limitation as alleged. And there is no limitation provided under the Act of 1955 for a suit for declaration of khatedari rights and correction of entries.

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I, am thus of the considered view that the courts below have taken a legally correct and just view in the impugned judgments and decree. Consequently, there is no occasion to interfere with the judgments/ decrees passed by the courts below decreeing the plaintiffs' suit for declaration, correction of entries and injunction. The petition is dismissed.

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arn/

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All corrections made in the order have been incorporated in the order being emailed.

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Arun Kumar Sharma, Private Secretary.

Mehmood Ahmed v. B O R

Case brief

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Mehmood Ahmed v. B O R

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