Chanda Lal and Others vs Board of Revenue and Others

M.N. Bhandari, J.—With consent of the parties, writ petition is heard finally.

The petitioner preferred a suit under sections 88 and 183 of the Rajasthan Tenancy Act. It is stated that the petitioners had given land to the respondents to use it on sharing basis however, the respondents are not giving possession. The possession was given long back, however it was only on sharing basis. The respondents stopped giving share to the petitioners in previous two years. The suit preferred by the petitioners for possession was dismissed. The appeal preferred by the petitioners before the Revenue Appellate Authority and second appeal before the Board of Revenue were also dismissed.

Learned counsel for petitioners submits that the land in dispute is khatedari land of the petitioners and it was never sold to the respondents. A fraudulent deed was produced to show transaction of the land though the document aforesaid was not even stamped and registered thus was not admissible in evidence. The respondents even claimed adverse possession over the land though as per the Full Bench decision of the Board of Revenue, the plea of adverse possession/permissive possession is applicable to revenue suit. Accordingly, dismissal of the suit so as the appeals by the courts below was not proper. This is more so when no finding has been recorded regarding allegation of forged document created by the respondents.

Learned counsel for respondents, on the other hand, submits that allegation made by the petitioners against sale document was considered with a specific finding holding it to be not a forged document. In fact land in dispute was sold by the grand father of the petitioners to the grand father of the private respondents. The respondents are in possession of land from the year 1963 as would be clear from ''Girdawari''. The petitioners never made a claim for the land in dispute since then and there is no endorsement of giving piece of land to the respondents to use it on sharing basis. The courts below have recorded concurrent finding of fact thus this court may not interfere in findings while exercising jurisdiction under Article 226 of the Constitution of India.

I have considered the submissions of learned counsel for the parties and perused the record.

A suit under section 88 and 183 of the Rajasthan Tenancy Act was filed by the petitioners. The SDO court framed as many as 7 issues and dismissal of the suit was not only after holding sale of the land but even issue of adverse possession apart from finding it to be beyond limitation and holding possession of land in part performance of the contract. At the relevant time, agreement was not required to be registered.

Learned counsel for petitioners has raised two issues for my consideration. First, that a suit cannot be dismissed on the ground of adverse possession as the aforesaid ground is not available in a revenue suit. The other argument is regarding sale document as it was forged and otherwise not registered after proper stamping.

So far as the issue, rather, allegation against sale document is concerned, a finding has been recorded by the courts below. The document contains signature of the petitioners'' grant father followed by no objection for possession and lastly, the petitioners never prayed for examination of the document by the Forensic Laboratory or even lodged an FIR. The issue aforesaid has been dealt with by all the courts by recording finding of fact against the petitioners. The petitioners failed to show as to how the document is forged rather after marshalling the evidence, a finding has been recorded by all the courts against the petitioners and in favour of the respondents.

Learned counsel for petitioners submits that presumption cannot be drawn for genuineness of the document but the fact remains that even presumption cannot be drawn to hold it to be forged unless otherwise proved. No evidence exist to show document to be forged thus the finding of fact recorded by the courts below suffers from no error.

The other argument is regarding sale deed which is neither stamped nor registered thus not to be read in the eye of law. The aforesaid issue has also been considered and finding that the document was exhibited, thus read in evidence.

At this stage, learned counsel for petitioners submitted that exhibition of the document is permissible for co-lateral purposes thus mere exhibition of the document cannot mean its admission even if not legally permissible in absence of proper stamping and registration. The specific issue was not framed for the aforesaid purpose as would be clear from bare perusal of the issues framed by the SDO court. If the issues so framed are looked into, then issue No. 6 talks about part performance of the contract and has been decided after hearing the parties. In absence of the issue, the argument aforesaid was not dealt with by the SDO court followed by finding of the RAA so as the Board of Revenue. The petition never raised a ground on the aforesaid issue as to why it was not framed.

If the order of the Board of Revenue is looked into, I do not find that aforesaid argument was raised by the petitioners. In absence of which, it could not have been decided. In case of an issue, document could have been sent for compounding.

In the light of the aforesaid, I do not find any error in the impugned orders more specifically when the issue aforesaid was not raised even before the Board of Revenue. Considering the case from all the angles, I do not find any error, rather, the orders contains concurrent finding of fact.

In view of aforesaid, writ petition is dismissed. The application under Article 226(3) of the Constitution of India for vacation of the interim order is allowed. Interim order is vacated.