JAGDISH & OTHERS Vs. PRAHLAD & OTHERS

JUDGEMENT

(1.) Under challenge is the order dated 18-4-2016 passed by the Board of Revenue Rajasthan Ajmer (hereinafter 'the Board') setting aside the order dated 28-3-2007 passed by the Revenue Appellate Authority Jaipur (hereinafter 'the RAA') which had affirmed the order dated 22-5-2006 passed by the Sub Divisional Officer Jaipur-II (SDO) on an application under Sec. 212 Rajasthan Tenancy Act, 1955 (hereinafter 'the Act of 1955') filed by petitioners-plaintiffs (hereinafter 'the plaintiffs') along with the suit for declaration and injunction under Sections 88 and 188 of the Act of 1955.

(2.) The case set up by the plaintiffs in their suit against the defendants-respondents (hereinafter 'the defendants') was that albeit the defendants were recorded in the record of rights as khatedars of land falling in khasra Nos.515, 516, 884 and 385 (old khasra No.210 and 369) as measuring 1.71 hectares, situate at Prahladpura Tehsil Sanganer, Jaipur (hereinafter 'the suit land') they had been in possession thereof since Svt. 2012 (i.e.1955) till the date of filing of the suit. Declaration as khatedars and permanent injunction was sought fundamentally on the ground of sub-tenancy and adverse possession. The suit was resisted by the defendants asserting that they were the recorded khatedar of the suit land and the plaintiffs not in possession. It was submitted that in any event the suit seeking declaration of khatedari rights on allegedly being sub-tenants of the recorded khatedars had been laid 50 years after the coming into force of the Act of 1955, was barred by limitation under the second proviso to Sec. 19(1)b of the Act of 1955 and therefore be dismissed. Reply in opposition to the application under section 212 of the Act of 1955 was also filed. Vide order dated 22-5-2006 the plaintiffs' application under Sec. 212 of the Act of 1955 was allowed by the SDO noting that from the supporting documents on record the plaintiffs were apparently in cultivatory possession of the suit land since the coming into force of the Act of 1955 and so recorded intermittently in the khasra girdavari between Svt. 2008 and 2029. And even though the record of rights reflected the defendants as khatedars in the suit land. The circumstances warranted interim protection for the plaintiffs as the merits of the suit on the claim of khatedari could only be addressed on the basis of evidence of parties laid during the course of a regular trial. Aggrieved, the defendants preferred a miscellaneous appeal before the RAA, who vide order dated 28-3-2007 affirmed the order dated 22-5- 2006 passed by SDO. The said order dated 28-3-2007 passed by the RAA has now been set aside by the Board in revision under Sec. 230 of the Act of 1955, vide its order dated 18-4-2016 inter alia on the ground that the defendants were recorded kahtedars and there could be no injunction against them. It was oddly also held sidetraking the khasra girdawaris before the SDO reflecting the plaintiffs' cultivatory possession for various periods between Svt.2008 and 2029 that there was no evidence supporting the claim of the plaintiffs on the basis of which they could assert possession. The Board concluded that there was no prima facie proof of the plaintiffs being the recorded sub-tenants in the record of rights or even under a contract with the defendants, and the mere circumstance of any land revenue having been paid by the plaintiffs qua the suit land was of no consequence to the merits of the plaintiffs' case for grant of interim protection. It was further held that khatedari rights could not be conferred on the basis of adverse possession as also claimed by the plaintiffs. The Board thus overturned the order dated 22-5-2006 passed by the SDO as affirmed by the RAA vide order dated 28-3-2007 and dismissed the plaintiffs' application under section 212 of the Act of 1955 vide the impugned order dated 18-4-2016. Hence this petition.

(3.) Mr. R.P. Singh Senior Advocate appearing with Mr. Sandeep Pathak on behalf of the plaintiffs has submitted that the power of the Board in revision petitions under Sec. 230 of the Act of 1955 is extremely limited and confined to situations where the courts below have exercised jurisdiction not vested in them by law or have failed to exercise such jurisdiction or otherwise exercised jurisdiction illegally or with material irregularity. Counsel submitted that scope of revising power, para-materia with section 230 of the Act of 1955 was considered by the Apex Court in the case of Sher Singh Vs. Joint Director of Consolidation, 1978(3) SCC 172 wherein it was held that if the subordinate courts are found to have passed orders within their jurisdiction, they cannot be said to have exercised it illegally or with material irregularity even if the impugned order was erroneous. Mr. R.P. Singh submitted that it cannot be anybody's case that the SDO, or for that matter the RAA hearing the miscellaneous appeal did not have jurisdiction to address and decide the plaintiff's application under Sec. 212 of the Act of 1955 filed along with the suit for declaration and permanent injunction. The decision by the SDO as affirmed by the RAA cannot in the circumstances even remotely be said to be an outcome of illegal exercise of the jurisdiction or it exercised with material irregularity. Counsel submitted that even on merits, the case set up by plaintiffs for interim protection during the pendency of the suit was on the basis of decades long cultivatory possession commencing prior to the time of coming into force of the Act of 1955 and the defendants not being in possession with all consequent legal ramifications, including the plea in the alternative of khatedari rights under adverse possession. Counsel submitted that for laying a suit for declaration of khatedari rights no limitation has been prescribed albeit the claim of sub-tenancy indeed may be affected on ground of limitation by the proviso to Sec. 19(1)(b) of the Act of 1955. But no such declaration was sought by the plaintiffs. What was sought was declaration of khatedari rights, submitted counsel. It was further submitted that in any event the plaintiffs having enjoyed interim protection under the SDO's order dated 22-5-2006, as affirmed by the RAA on 28-3-2007, for a period of more than 11 years, the more appropriate order for the Board would have been to direct the SDO to expeditiously decide the suit rather than upsetting the interim order passed by two courts below and thus leaving the plaintiffs vulnerable to dispossession, in the facts impermissible in law at the hands of the defendants despite settled cultivatory possession over the suit land over several decades.