MANPHOOL Vs. DULICHAND

JUDGEMENT

(1.) THIS is a writ application under article 226 of the Constitution of India by Manphool and Sheoram who are residents of Rejri in-district Ganga-nagar. It is urged that the decision of the Board of Revenue dated 25-10-60 passed in Second Appeal No. 6/56 Dulichand vs. Manphool and Sheoram is manifestly wrong and therefore it is prayed that it should be set aside and the learned members of the Board should be directed to rehear the said appeal and decide it afresh on merits. In order to appreciate the contention of the petitioners, it would be proper to narrate briefly the facts which have given rise to this application.

(2.) THE petitioners filed a suit on 14-3-52 in the court of Assistant Collector, Rajgarh. It was averred by them that their father had Khatedari rights over a field of 90 Kachcha bighas, namely Khasra No. 142 in village Rejri. He died in Samwat 1992 and at that time, petitioner No. 1 was four years old, while petitioner No. 2 was only a few months old. In Samwat 1994, the petitioners' mother shifted to Bikaner leaving the said field under the supervision and management of Chimna-ram, father of the present non-petitioners, since he was distantly related to them. It was further averred that in Samwat 1996 the said land came under the management of the Court of Wards, that thereafter, Chimnaram, in collusion with the staff of the Court of Wards, got certain entries made in his favour in revenue records It was alleged that Chimnaram was unlawfully retaining possession of the land, that he was a trespasser and, therefore, the plaintiffs prayed for declaration and restoration of possession of the disputed land. Chimnaram contested the suit. After framing issues and recording evidence of both the parties, the Assistant Collector dismissed the suit on 31st August, 1954. Aggrieved by that decision, the present petitioners filed an appeal before the Commissioner, Bikaner Division. On 14-4-55 he allowed the appeal, set aside the judgment of the lower court and held that the land in dispute belonged to the plaintiffs. Chimnaram then filed an appeal before the Board of Revenue against the said decision. THE learned members of the Board observed that the judgment passed by the. Commissioner was not a proper judgment since it was incapable of execution and so they set it aside and remanded the case which direction to give a proper judgment, After this decision, dtd. 31-10-55. the case went back to the Commissioner Bikaner Division. He heard the appeal afresh and decided it on 14 9-56 in favour of the plaintiffs. Chimnaram defendant having died, his sons and legal representatives filed an appeal before the Board of Revenue. This second appeal was decided by the Board on 25-10-60. This time it was urged by the appellants before the Board of Revenue that the plaintiffs had brought the suit for ejectment of Chimnaram from the disputed land on the ground that he was a trespasser who had retained possession of the land without lawful authority, and that a suit was not maintainable before a revenue court. This argument found favour with the learned members of the Board. THEy followed the view expressed by a Division Bench of this Court in Gordhan vs. Kishan Lal (l) and held that the revenue court had jurisdiction to entertain and decide only that suit against a trespasser against whom it was alleged that he had taken possession of land without lawful authority, but it had no jurisdiction to entertain and decide suits against trespassers who, after entering upon the disputed property lawfully, retained its possession without lawful authority. THE learned members allowed the appeal, set aside the judgment and decree of the trial court and the appellate court and remanded the case to the trial court with direction that the suit be tried and decided afresh in accordance with law.

(3.) WE do not see any good ground for interference and the writ application is, therefore, dismissed. In view, however, of the conflict of the views in the decisions of this Court, the parties are left to bear their own costs. .