HIRALAL Vs. BOARD OF REVENUE

JUDGEMENT

(1.) BY this writ petition, a challenge is made to the order dt. 18.4.2013 passed by the Board of Revenue. Therein, the order dt. 26.12.2002 passed by the SDO, Fetehpur was set aside. Learned counsel for petitioner submits that a revenue suit was filed by the respondents under Sec. 88 of the Rajasthan Tenancy Act for declaration of khatedari rights of the land in dispute. The SDO, Fatehpur issued notice on the address given therein. The notices returned unserved as the petitioners were not residing at the address, rather, shifted to Nichlaul, District -Maharajgang in Uttar Pradesh. After the aforesaid, one Mr. Anil Mishra, Advocate appeared and filed 'Vakalatnama' on behalf of the petitioners without their knowledge and after getting their forged signatures. He then filed written statement which was also containing forged signatures of the petitioners; A forged family settlement was also prepared and filed in the Court. The SDO Court, relying on the forged family settlement so as the written statement, passed the order on agreed terms.

(2.) ON 28.7.1998, petitioners could know about the judgment when they went to 'Halka Patwari' to get the 'Jamabandi'. Petitioners then filed an application under Order 9 Rule 13 of the Code of Civil Procedure to set aside the judgment. The reply to the application was submitted by the respondents and they also filed an application. The application moved by the petitioners was allowed by the SDO Court vide order dt. 26.12.2002, who then set aside the earlier order dt. 28.7.1998. The respondents preferred revision petition before the Board of Revenue who set aside the order of the SDO.

(3.) LEARNED counsel for the respondents submits that it is not a case where ex parte judgment was given by the SDO Court so as to maintain an application under Order 9 Rule 13 of the Code. In view of above, application submitted by the petitioners was not even competent yet the SDO Court had accepted it. It is further stated that when the Vakalatnama was filed by the Advocate followed by written statement, there was no reason for the SDO Court to disbelieve presence of the petitioners. In view of above, earlier order and decree should not have been recalled casually. It is only on the ground that the signatures of petitioners do not tally on the Vakalatnama and written statement with their original signatures. The Court should not compare signatures or hand -writing of the parties. It should have been sent to the expert, however, in the instant case, SDO failed to do so, hence, the Board of Revenue has rightly set aside the order with the remand and direction to examine the Advocate who had appeared on behalf of the petitioners and filed Vakalatnama and the written statement. Accordingly, there is no illegality in the impugned order.