BHURA MOGIYA Vs. SATISH PAGARIYA

JUDGEMENT

(1.) The appellants herein were the defendants in a suit filed by the respondents under Sections 88 and 188 of the Rajasthan Tenancy Act before the Sub-Divisional Officer, Rajasamand District, Udaipur. The suit was for declaration that the plaintiff-respondents are the recorded tenant and for injunction and alternatively, for possession of the land, if the plaintiffs were not found in possession. It is not disputed that the plaintiffs entered into an agreement with the father of the defendant-appellants for sale of land measuring 90 bighas. It is also not disputed that the plaintiffs received the earnest money and they delivered possession of the land to the father of the defendants. What is disputed is that since the defendants did not pay the balance amount a dispute arose and as a result of a settlement Ex. 4 came to be arrived at. The case of the plaintiffs was that as a result of Ex. 4 the defendants gave back the possession of the land to them. It further appears that the proceedings under Section 145 Crpc were initiated and the magistrate found that the defendants were in possession over the land. Consequently the possession of the land was delivered to the defendants.

(2.) Under these circumstances, a suit came to be filed by the plaintiff- respondents. The defendant-appellants pleaded in their written statement that they came in possession over the land by virtue of an agreement and alternatively it was also pleaded that they had acquired title by adverse possession. The trial court found that Ex. 4 was a fictitious document and in fact it is the defendants who were in possession and therefore the suit was dismissed. Appeal preferred against the said judgment was also dismissed. The Board of Revenue, on second appeal being filed by the plaintiffs allowed the appeal and decreed the suit. The writ petition filed by the appellants was dismissed by the High Court of Rajasthan. It is against the aforesaid judgment the appellants are in appeal before us.

(3.) The learned counsel appearing for the appellant urged that the Board of Revenue could not have passed an order for ejectment of the defendant-appellants without having framed an issue in that regard as contemplated under Section 209 of the Act. Section 209 of the Act runs as under: