MOHAMMAD RAHIM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner has challenged in this petition the impugned order passed by the Collector and Dy. Commissioner, Colonisation on 11. 9. 95 (Annex. 2) making reference to the Board of Revenue under Sec. 232 of Rajasthan Tenancy Act, 1955 (for short, "the Act") and the impugned order at Annex. 3 dated 10. 10. 1997 passed by the Board of Revenue accepting the reference and setting aside the decree dated 9. 4. 95 passed by the Assistant Colonisation Commissioner, Kolayat (for short, "acc") in suit No. 159/84 in favour of the petitioner declaring him as "gair KHATHEDAR"

(2.) LEARNED counsel Shri Sharma for the petitioner submitted that a reference was made by the Dy. Commissioner, Colonisation under Section 232 of the Act after ten years of passing of decree by ACC on 9. 4. 85. He submitted that though no period of limitation is provided for making reference it should have been made within a reasonable time i. e. within one year as held by the Division Bench of this Court in case of Anandi Lal vs. State of Rajasthan and others (1 ). He, therefore, submitted that on this ground alone the impugned order of making reference to the Board of Revenue and the order passed by the Board of Revenue accepting the reference and setting aside the decree passed by ACC be set aside.

(3.) MR. Sharma then submitted that the Board of Revenue committed an error in accepting reference on the ground that except the oral evidence in favour of the petitioner, there was no documentary evidence and the decree was collusive. He submitted that even on the oral evidence, the decree can be passed. In support of his submission, he relied upon the judgment of Division Bench of this Court in case of Saukhan vs. State of Rajasthan & others In Saukhan's case the Division Bench has stated that when the oral evidence is truthful and is admissible then in absence of documentary evidence it can be relied upon otherwise not. There is no quarrel with the principle laid down by the Division Bench of this Court. But oral evidence must be truthful and reliable. If documentary evidence like Jamabandi etc. was against the petitioner and when the State has specifically pleaded in the reply that they were never in continuous possession of the land then mere oral evidence of three persons that they were having possession since long cannot be relied upon. Therefore, in my opinion, the Board of Revenue has rightly held that on the facts of the case, the oral evidence of three witnesses ought not to have been relied upon by ACC in absence of authentic documents produced by the petitioner in support of case of their old continuous possession on the land.