BRAJMOHAN AGED 73 YEARS S/O KESRA BY CASTE MEENA Vs. HEERALAL S/O RAMCHANDRA (DECEASED) THROUGH HIS LEGAL HEIRS

JUDGEMENT

(1.) By this writ petition has been filed by petitioner-Brajmohan, who is defendant in revenue suit filed by the respondents for declaration of khatedari rights and permanent injunction against the petitioner-defendant No.4 Brijmohan and Performa Respondent No.5 to 14 under section 88, 89, 90 and 188 of the Rajasthan Tenancy Act. The dispute is with regard to land of Khasra No. 219 measuring 24 Bighas 7 Biswa in Gram Kacholia, Tehsil Digod, which was in the khatedari of one Madho. Madho was grandfather of both plaintiffs and defendants.

(2.) According to the petitioner, land in dispute is ancestral property out of which half land belongs to the plaintiff and other half belongs to the defendant. Madho during his life time has partitioned his land and the disputed land falling in Khasra No. 219 comprising of 24 Bigha 7 Biswa was partitioned equally in half between Ramchandra, father of the plaintiff and Kesra, father of the defendants. After death of Madho in 1950, names of Kesra Raghunath, Ramchandra and Manna were entered in the revenue record. However, after a gap of 10 years, Kesra in collusion with Gram Panchayat got his sole name entered in the revenue record in respect of the disputed land. After death of Madho, father of plaintiffs and defendants on 29.08.1950, an order was passed by Gram Panchayat Amarpura, Tehsil Digod wherein the disputed land was divided between Ramchandra and Kesra in equal share. The land Rakba measuring 164 Bighas was in the khatedari of Madho, who during his life time partitioned the same amongst himself and his four sons. Madho kept Khasra No. 219 measuring 24 Bigha 7 Biswa with himself while the remaining land was partitioned amongst his four sons. The partition was given effect by way of written family settlement in 1945, which was signed by all the parties and the possession was thereafter taken. On 04.01946, Madho executed a will of his share i.e. Khasra No. 219 the disputed land in favour of Kesra Lal father of the petitioner and got it registered.

(3.) According to petitioner, after the death of Madho in the Year 1950, Khasra No. 219 which belongs to Kesra Lal by way of registered will, was wrongly entered in the name of all four sons. In the Year 1958, the Gram Panchayat after following the procedure entered Khasra No. 219 in the name of Kesrilal who continued to be in peaceful possession and cultivation of the disputed land. In 1960, Ramchandra took forcible possession of half of the land of Khasra No. 219. The deceased Kesrilal, father of the petitioner, was therefore constrained to file a suit for possession before the SDO Kota on 17.05.1960, which was dismissed on 30.4.196 An Appeal was filed before the Revenue Appellate Authority which was dismissed vide order dated 06.05.1964. However, second Appeal filed there against before the Board of Revenue who allowed in February 1965, whereby the order passed by the Revenue Appellate Authority was set aside and the case was remanded back to Revenue Appellate Authority with the direction to record the additional evidence and thereafter, after affording an opportunity of hearing to the respondents, pass fresh order. After remand of the case, the Revenue Appellate Authority dismissed the appeal on 17.01.2001 against which the second appeal came to be filed which was also dismissed by Board of Revenue on 14.12.2007. A review petition was also filed against the same which also came to be dismissed on 01.09.2009. Against the order dated 14.12.2007 passed by Board of Revenue in second appeal and subsequent order dated 01.09.2009 in review petition, the petitioner filed a SB Civil Writ Petition No. 14776/2009, which is still pending. It is submitted that this khasra no.219 was entered in the name of Kesra's sons after the death of kesra and they continued to remain in the cultivatory possession of the same. However, the Land Development Corporation, Kota (Bundi) issued notices dated 05.01988 to Brijmohan, Ramgopal and Mannalal, the sons of Kesra and took over the land from their possession. The respondent plaintiff on 19.08.1988 filed in application under section 39 of the Rajasthan Land Development Corporation Act, 1975 before the Additional Collector CAD, Kota (Bundi) claiming half share in Khasra No.219. Briojmohan and his brother i.e. sons of Kesra filed reply denying any share of the respondents in Khasra No.219 which was in their exclusive khatedari and possession. However, the Additional collector CAD vide order dated 21.09.1988 decided that possession of the land on the south side be handed over to the sons of Ramchandra and possession of the land in the North side be handed over to the sons of Kesra. Against the decision dated 21.09.1988, an appeal was filed before the Divisional Commissioner on 24.09.1988, who upheld the decision of the Additional Collector CAD and rejected the appeal. Against the orders dated 21.09.1988 and 24.09.1988, the petitioner filed an SBCWP No.6050/1990, which also was dismissed by order dated 24.07.2006. Petitioner preferred DB Special Appeal (Writ) No.656/2008, which was dismissed in default and a restoration application thereabout is pending before this Court. In the meantime, petitioner filed an application under section 11 CPC before the SDO, Digod contending that suit with regard to the same land filed by the plaintiff-respondent is not maintainable as the land in dispute in the suit and in the writ petition pending before this Court was same and therefore the suit filed by the respondent is barred by principles of res judicata. Petitioner filed revision petition before the Board of Revenue against the order dated 102.2002, which came to be registered as Revision Petition No. 1774/2012, which too was dismissed vide order dated 27.10.2015.