HARI RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Leave granted.

(2.) The appellant sought declaration of his 'khatedari' (tenant-occupant) on a land having a total extent of 158.3 bighas in Khasra numbers; more fully described in the plaint filed under Sec. 88 of the Rajasthan Tenancy Act, 1955 [ For brevity 'Act of 1955'] and also sought for recovery of half of the total land unlawfully encroached upon by the defendants. The khatedari was claimed as a succession from his deceased father whose name was mutated as on 26/11/1961 in the revenue records. It was alleged that the defendants, Keshi, Bhura Ram and his son, Bhiya Ram had fabricated a sale deed based on which the encroachment was carried out. The suit was decreed as early as on 16/8/1975, the 1st defendant, Keshi having appeared and contested the case but eventually declared ex-parte for non-appearance. An appeal by Keshi long after, in the year 2006, was rejected on the ground of gross delay. In the second appeal filed, the Board of Revenue remanded the matter to the original authority which was affirmed by the High Court confirmed in an intra-court appeal.

(3.) The Board of Revenue found that though the 1st defendant was present, her presence was not consistent and there were no signatures or thumb impressions recorded to confirm her attendance. It was held that the original authority had provided no opportunity to adduce evidence after the order dtd. 18/1/1972 and despite the summons having not been returned as 'served', the trial court proceeded ex-parte declining her reasonable opportunity to defend the case. It was observed that the trial court failed to summon the sale deed and ignored the mutation as on 12/7/1963 which recorded the 1st defendant as a tenant. It was further held that the plaintiff having not executed the decree, the defendant was not aware of the decree passed especially when the mutation as of 1963 was altered in the name of the plaintiff only on 30/6/2010. The High Court found in favour of the defendant, especially noticing the fact that the 1st defendant was a widow who was also illiterate.