ASULAL Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE petitioner No. 3 Shri Mohd. Ali s/o Shri Gafur filed a suit under Section 88 and 188 of the Rajasthan Tenancy Act in 1970 for the declaration of Khatedari rights for 209 Bighas land of Khasra No. 216 situated in village Gangola on the ground that though the same was cultivated by him for a long time but the Khatedari rights of the land were not recorded in his name. Suit of 1970 came to be decreed by the Assistant Collector, Banner on 28.4.70 (Annex. 1) for 100 Bighas instead of 209 Bighas and he was declared as Khatedar of the land and the defendants were restrained from interfering with the cultivatory possession of Mohd. Ali. Aggrieved by the part of the judgment and decree passed by the Assistant Collector of declaring him as a Khatedar of 100 Bighas land instead of 209 Bighas, Mohd. Ali preferred an appeal which was dismissed by the R.A.A. on 31.8.79 (Annex. 2). Second appeal preferred by Mohd. Ali before the Board of Revenue was dismissed on 21.4.86 (Annex.3). Thereafter the matter was not taken up further by Mohd. Ali. According to the petitioners No. l and 2, Shri Asu Lal s/o Shri Rikhab Das and Bhoor Chand s/o Rikhab Das, Mohd. Ali sold 50 Bighas of land to them somewhere in July, 1981 (Annex.7) and the mutation was also effected in their favour in 1982 (Annex. 10) and they were conferred Khatedari rights also. On 16.1.87, Tehsildar, Barmer moved an application to the Collector stating that Mohd. Ali was wrongly declared as a Khatedar of 100 Bighas land though he was not in cultivatory possession when the Rajasthan Tenancy Act came into force. On 17.1.90 (Annex. 5), the Collector, Banner made the reference under Section 232 of the Rajasthan Tenancy Act to the Board of Revenue for quashing the decree dated 28.4.71 passed by the Assistant Collector. The Board of Revenue, by an order dated 2.4.92 (Annex.6) accepted the reference and set aside the decree dated 28.4.71 passed by the Assistant Collector, Barmer. This order Annex. 6 is challenged in this petition by the petitioners.

(2.) LEARNED Counsel Shri Chopra for the petitioners vehemently submitted that the Board of Revenue committed an error in setting aside the decree passed by the Assistant Collector, was back in 1971. He submitted that there was enough oral evidence on record before the Assistant Collector in passing the decree in favour of Mohd. Ali. He submitted that the decree passed by the Assistant Collector became final and should not have been taken up in reference after lapse of about 16 years. In support of his submission Shri Chopra relied upon judgment of this Court in case of Anandi Lal v. State of Rajasthan 1996 (2) WLC (Raj.) 36). He also relied upon my own judgment dated 7.7.97 in S.B. Civil Writ Petition No. 2005/89 and submitted that on the ground of gross delay and latches of 16 years in making reference the impugned order at Annex. 6 be quashed.

(3.) NO doubt it is true that from the date of decree, there is a delay of 16 years but if we closely peruse the matter then it becomes clear that Mohd. Ali petitioner No. 3 filed a suit before the Assistant Collector for 209 Bighas of land but the decree was passed for 100 Bighas of land only on 28.4.71. It was Mohd. Ali, who filed first appeal for remaining 109 Bighas of land before the Revenue Appellate Authority, which came to be dismissed in 1979 i.e. 31.8.79. Mohd. Ali earned the matter further by way of second appeal before the Board of Revenue, which came to be dismissed by the Division Bench of the Board of Revenue only on 21.4.86. Perhaps it is because of the pending litigation before the R.A.A. and the Board of Revenue, the Tehsildar must not have thought it fit to make an application before the Collector till 1987. Immediately on the conclusion of the proceedings pending before the Board of Revenue in 1986, the Tehsildar moved the Collector in 1987. Though at first look it may appear to be a delay of 16 years but practically in this case there is no delay. Therefore, the judgment of the Division Bench in Anandi Lal's case cited by Mr. Chopra has no application to the facts of this case and the subsequent judgment of the Division Bench relied upon by Shri Bhati sequarely applies to the facts of this case.