MAKHAN LAL Vs. INDRAJ

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner against the order of the Board of Revenue Dt. 05.11.1998 with the prayer that the order of the SDO Dt. 28.01.1992 be restored and the application of the respondent -defendants Dt. 28.01.1992 be dismissed. A suit for possession was filed by the petitioners and respondent Nos. 4 to 6 before the SDO, Kehtri with regard to land of Khasra No. 1514 measuring 2 bighas and 9 biswas. The land originally belonged to one Amichand, who was Khatedar of the aforesaid land. He transferred the same in favour of one Smt. Prabhati by registered gift deed Dt. 25.06.1959. Mutation in her favour was attested on 19.07.1959. Smt. Prabhati sold the land to the plaintiff by registered sale deed on 12.04.1967. According to the petitioner, the defendants tried to encroach upon the land on 22.06.1967. The defendants however denied the allegation in the plaint. The defendants filed application under Order 14 Rule 2 CPC on 28.01.1992 for framing additional issue to bring on record the fact that already earlier suit between the same parties had been decided against the plaintiff and therefore new suit would be barred by principles of res judicata. The SDO dismissed the application filed by the defendants by order Dt. 28.01.1992. A revision petition was filed against the aforesaid order of the SDO before the Board of Revenue. The Board of Revenue by order Dt. 05.11.1998 allowed the revision petition. Hence this writ petition by the plaintiff -petitioner.

(2.) SHRI Mahendra Goyal, learned counsel for the petitioner has argued that the question whether or not the suit of the petitioner was barred by principles of res judicata can be decided only by framing of additional issue. The findings recorded by the Board of Revenue are perverse and illegal. The Board in its revisional jurisdiction has far exceeded its jurisdiction, which is restricted in view of Section 231 of the Rajasthan Tenancy Act. The Board has set aside the order of the SDO Dt. 28.01.1992 for wrong and unjustified reasons. Already an issue was framed with regard to the dispute between the parties by the SDO and therefore it was justified in dismissing the application as this issue in any case had to be tested on the basis of evidence. No material has been placed by the respondents before the Board of Revenue to show that the present suit is barred by res judicata. Learned counsel for the petitioner in support of his arguments has relied on the judgment of this Court in Nangi Devi v. Rampal Meena, : 2013 (1) WLN 191 wherein it was held that issue of res judicata was required to be decided after framing issues and allowing parties to adduce evidence. It is therefore prayed that the writ petition be allowed in terms of the prayer made as above.

(3.) I have given my thoughtful consideration to the rival arguments and perused the material on record.