Intra-court appeal dismissed without merit. The Supreme Court of Rajasthan Bench (DB) upheld the lower court’s dismissal of the State’s reference under the Rajasthan Tenancy Act, citing inordinate delay and lack of evidence regarding migration as grounds for extinguishing Khatedari rights.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Spl. Appl. Writ No. 735/2008
State Of Raj. And Ors.
----Appellant
Versus
Abdulla And Ors.
----Respondent
For Appellant(s) : None present For Respondent(s) : Mr. Sudheer Sharma
HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Order
24/01/2024
This intra court appeal has been filed by the appellants being aggrieved with the order dated 10.12.2004 passed by the learned Single Judge in SBCWP No.2012/1995, whereby the writ petition filed by the respondents was allowed and the order of the Board of Revenue dated 20.10.1994 was set aside.
Brief facts of the case are that in the year 1988, the Tehsildar Barmer has filed an application before the Collector, Barmer for making reference under Section 232 of the Rajasthan Tenancy Act for setting aside the judgment and decree dated 26.9.1978. The Additional Collector, Barmer vide order dated 21.10.1992 has decided the said application and thereafter the District Collector, Barmer has referred the matter to the Board of
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Revenue for consideration. The Board of Revenue vide order dated 20.10.1994 has accepted the reference and set aside the judgment and decree passed by the Assistant Collector, Barmer dated 26.09.1978 while holding that the land was originally belonging to one Poda, who migrated to Pakistan and therefore, proceedings were initiated under Section 63(1)(viii) of the Rajasthan Tenancy Act, 1955 and his Khatedari rights have been extinguished.
The order passed by the Borad of Revenue was challenged before the learned Single Judge and the learned Single Judge, after hearing counsel for the parties, has recorded a specific finding that the State has failed to prove before the Revenue Court that Poda has been migrated to Pakistan and on account of that the his Khatedari rights have been extinguished under Section 63 (1) (viii) of the Rajasthan Tenancy Act, 1955.
The learned Single Judge has also observed that reference to the judgment and decree of the trial court is made after 14 years and for that reason also, the order passed by the Board of Revenue is liable to be set aside.
It is noticed that on 05.12.2017, counsel for the State sought time to produce original record of the proceedings in Application No.538/74 preferred by the Tehsildar before the Assistant Collector, Barmer under Section 63(1)(viii), however, today counsel for the State is not present with the original record.
Having gone through the impugned order; after going through the writ petition as well as the material available on record, we are of the view that the learned Single Judge has rightly set aside the order dated 20.10.1994 passed by the Board
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of Revenue while observing that the judgment and decree passed by the trial court was challenged by way of reference after an inordinate delay.
Resultantly, this intra court appeal being bereft of force is hereby dismissed.
(RAJENDRA PRAKASH SONI),J
(VIJAY BISHNOI),J
State Of Raj. And Ors.
Abdulla And Ors.
VIJAY BISHNOI
RAJENDRA PRAKASH SONI
As recorded by the court registry
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