KRISHNA KUMARI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) -

(2.) THIS writ petition, under Article 226 of the Constitution of India, has been filed by the heirs and legal representatives of one Devi Singh, residents of village Devalia Kalan, Tehsil Kekri District Ajmer against the judgment of the Board of Revenue dated 4-8-1976 holding that Devi Singh held land in excess of the ceiling area and, as such, the same was liable to be acquired under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter to be referred to as 'the Act')-

(3.) IT is indisputable that where the parties well understood the two cases opposed to each other and led all the evidence in support of their contentions, the absence of an issue cannot be said to be fatal to the case or that there was mistrial. (See Kunju vs. Philip (1) and Girdharsingh v/s Gokul From these decisions, it is clear that the mere omission to frame an issue on a matter in controversy between the parties cannot be regarded as fatal unless, upon examination of the record, it is found that the failure to frame the issue had resulted in the parties having gone to the trial without knowing that the said question was in issue between them. In the instant case, the controversy from the very beginning was about the transfers made in the years 1967 and 1970. The landholder pleaded that they were valid transfers whereas the stand of the State Government was that they were not recognizable under the Rajasthan Tenancy Act. As such, the parties had the notice of the controversy and they produced the materials thereon and argued the matter fully before the S.D.O. and in appeal. The petitioners did not raise any grievance in the appeal. Consequently, it is difficult to permit them to raise this question in this writ petition under Article 226 of the Constitution and quash the judgments of the Board of Revenue and the S.D.O. Before the Board of Revenue also, the controversy was argued at length.