DEEN DAYAL Vs. BHURA

JUDGEMENT

(1.) THIS is a second appeal against the order and decree given by the Revenue Appellate Authority, Jaipur dated 9-12-1963, whereby the order and decree passed by the Assistant Collector, Behror dated 1-3-1961 were reversed.

(2.) THE circumstances leading to this second appeal are that the plaintiffs-appellants had brought-forth a suit for ejectment of trespassers and possession under sec. 183 of the Rajasthan Tenancy Act, hereinafter called the Act, before the Assistant Collector, Behror. Originally the suit was filed for injunction under sec. 92-A of the Act on 23-5-1958 which was later on amended to a suit for ejectment and possession. THE suit lands bear Khasra Nos. 951 and 953, measuring 4 bighas and are situate in village Barod of Tehsil Behror It is admitted by the parties that the suit lands were in the muafi of the deity of the temple of Shri Baldeoji Maharaj and the plaintiffs are the pujaris and sarbarakars of the said temple. THE suit lands were in the cultivatory possession of Bhura defendant respondent upto Smt. 2014 (1957 AD ). THE plaintiffs alleged in the plaint that Bhura-defendant had surrendered this land on 4-3-1968 and had delivered its possession to the plaintiffs, but subsequently had dispossessed them. Bhura defendant had in defence taken the stand that he had never surrendered the lands in dispute and his cultivatory possession over it had been continuous till the filing of the suit. THE trial court decreed the suit. THE defendant went in first appeal before the Revenue Appellate Authority who accepted the appeal and remanded the case to the trial court on 15-5-1961. On an appeal to the Board of Revenue by the plaintiff the said order of the learned Revenue Appellate Authority was set aside on 29-8-1962 with the direction that the first appellate court should dispose of the appeal on merits. On 8-1 1-1963, the defendant-appellants presented an application before the first appellate court, that, since, the disputed land being mafi pujarath', had been resumed on 1-7 1963 in pursuance of Government Notification No. F lg. (63) Rev/a/61 dated 21-6-1963, the plaintiff respondent was not entitled to bringforth the suit. THE point for determination before the learned Revenue Appellate Authority was the effect of the resumption of the mafi of Thakurji on the suit land which formed part of the said mafi. Having placed reliance on the decisions of this Board in Daleepsingh vs. Th. Hanuman Singh (1957 RRD 261), THE Nagpur High Court in Chhokkhan vs. Mohd. Odeoulla Khan (AIR 1953 Nagpur 361), the Supreme Court in Haji Sk. Subhan vs. Madhorao (AIR 1962 SC 1233), the Supreme Court in Suraj Ahir vs. Prithinathsingh (AIR 1963 SC 454 ). it was averred by the defendant-appellants that the plaintiff was not competent to bringforth the suit under sec. 183 of the Act, whereas it was contended by the plaintiff respondent that the suit lands were in his khudkasht and therefore the resumption of the said mafi of Thakurji Shri Baldeoji Maharaj could not effect his right as the khudkasht holder khatedar.

(3.) REFERRING to the defendant-respondent's plea that the surrender deed was fraudulently obtained, it was averred that the surrender-deed was real and genuine since it had followed after the Razinama struck between the parties soon after the filing of the application under Sec 145 Cr. P. C. by the plaintiff. The surrender deed was duly attested by the Gram Panchayat and the Tehsildar. Possession of the suit lands had been handed over by the defendant-respondent to the plaintiff-appellant and the act of surrender could not be branded as fraud since it had already been acted upon.