Felli and Others vs Board of Revenue and Others

M.N. Bhandari, J.�By these writ petitions, a challenge is made to the order passed by the Sub-divisional Magistrate (for short "SDM") so as the order passed in appeal by the Revenue Appellate Authority and the Board of Revenue.

Learned counsel for the petitioners submits that a suit for permanent injunction was filed under Section 188 of Rajasthan Tenancy Act, 1955 (for short "Act of 1955"). It was in regard to the various khasras of Village Rohadakhurd, Tehsil Dausa. It was alleged that on 01.05.1995, when the plaintiff - Kanaram was raising boundary in the field, the defendant/s - respondent/s came with deadly weapons to take possession of the land and for that started quarreling with the petitioners-plaintiff/s. The proceedings was initiated under Section 107 & 116(3) of Cr.P.C. A suit was simultaneously filed to seek injunction to restrain disturbance in peaceful cultivatory possession of the petitioners. A written statement was filed along with counter claim by the defendant/s-respondent/s. It was stated that the land in dispute has wrongly been entered in the name of plaintiffs as the respondents - defendant/s are in possession of land, thus be declared to be Khatedar. The land was earlier recorded in the name of their ancestors. The SDM Court dismissed the suit whereas the counter claim submitted by the respondents - defendants was accepted.

The order passed by the SDM and subsequent orders in appeal were in ignorance of the fact that throughout the petitioners were held to be khatedar but recorded finding regarding possession of defendant/s - respondent/s. The suit for injunction was dismissed while accepting the counter claim of the defendants - respondents.

The Courts below failed to consider that in the proceedings for consolidation, the land was recorded in the name of petitioners'' ancestors and they were in possession of land, thus not only that the finding recorded in regard to the possession of the defendants - respondents is erroneous but even acceptance of the counter claim was in ignorance of the fact that after the consolidation proceedings, change of the Khatedari right cannot be made by accepting counter claim filed by the defendants - respondents. The petitioners had produced "Khasra Giradawari" to show cultivatory possession in the relevant years but aforesaid was also ignored while recording finding that defendants - respondents were in possession of land in question. The Courts below failed to consider the evidence produced by the petitioners for that and otherwise, they are still in possession of land.

It was also stated that certain issues were raised before the Board of Revenue but have not been dealt with while passing the final order. The petitioners could have filed review petition for it but considering limited jurisdiction therein, preferred this writ petition. Looking the grounds aforesaid, all the three orders passed by the Revenue Court deserve to be set aside and decree of injunction be passed in favour of the petitioners. This is moreso when, all the three Courts below have decided Khatedari rights of land in question in favour of the petitioners - plaintiffs.

Learned counsel for the respondents, on the other hand, submits that there exists concurrent finding of fact by two Courts below, thus Board of Revenue refused to interfere in the orders while exercising jurisdiction in second appeal. This Court while exercising jurisdiction under Article 226 of Constitution of India should be slow to interfere in the concurrent finding of fact. All the three courts below found possession of petitioners - plaintiffs on the land in dispute. In a suit for injunction, burden to prove possession was on the plaintiffs - petitioners, which could not be discharged. While hearing the counter claim of the petitioners, all the three courts below recorded finding in favour of the petitioners. It was after considering that prior to settlement and consolidation, land in dispute was in the name of defendants'' ancestors and based on the documents submitted by the defendants, possession in their favour was held proved. In view of above and considering the limited jurisdiction of this Court while exercising jurisdiction under Article 226 of Constitution of India, interference in the order may not be made.

I have considered the rival submissions made by learned counsel for the parties and scanned the matter carefully.

On a suit for injunction filed by the petitioner and counter claim by the defendants - respondents, ten issues were framed by the SDM Court. While deciding the first issue, it was found that as per Jamabandi of 51 to 54, name of petitioners were recorded as Khatedar but no documents have been submitted to prove their possession. So far as the second issue is concerned, finding was recorded against the plaintiffs - petitioners finding no event to take forcible possession of land. The issue Nos. 3 and 4 were in regard to certain Khasras to find out as to whether petitioners could prove their case and it was found that land in dispute was earlier recorded in the name of defendants'' ancestors. It was also found that even at the time of "Khatoni Bandobast", the plaintiffs had submitted entries of Samwat 2018 & 2019, which was to show that it was recorded in the name of Chothu, Kana s/o Shri Chandra Meena but corresponding Jamabandi and new Khatedari numbers were not produced. The Exhibit 4 was considered to record that Khasra No. 596 and 594 were from Khasra Nos. 646, 643, 645, 679, 680 and 681. It was earlier Khasra No. 203 and similarly, for other Khasras, finding was recorded. It was found that those Khasras were recorded in the name of defendants'' ancestors and accordingly, issue No. 3 was decided against the plaintiff - petitioner.

Similar discussion was for the issue No. 4. The issue No. 4 was as to whether the petitioner is entitled to the injunction. Again in absence of proof of possession, it was decided against the plaintiff. The discussion regarding other Khasras was made in the issue Nos. 6, 7, 8 and 9 and considering the material produced by the defendants - respondents, it was found that they are in possession of the land.

The last issue No. 10 was as to whether during settlement proceedings or for consolidation, the land belonging to the defendants could have been recorded in the name of the plaintiffs without an order, thus as to whether a declaration can be sought by the defendants for their Khatedari right. The aforesaid issue was decided in favour of the defendants - respondents. The Revenue Appellate Authority found no error in the order so as to cause interference and the Board of Revenue considering its limited jurisdiction in second appeal, dismissed the appeal without causing interference in the finding recorded by the SDM Court.

Learned counsel submitted that documents pertaining to possession were ignored and in that regard "Khasra Girdawari" was shown and therein the name of petitioners appears. It is also stated that after consolidation, declaration of Khatedari right was not available to the defendants.

The perusal of the order passed by the SDM Court reveals consideration of the evidence led by both the parties and finding thereupon. It has compared different Khasra numbers prior to settlement and consolidation and subsequent to it by preparing a table. While dismissing the suit for injunction, claim of the defendants was allowed taking into consideration the fact that land in dispute was earlier existing in the name of defendants'' '' ancestors and were in possession at the time of filing of suit. It was after marshaling the evidence and by proper adjudication thereupon.

In view of the above, it cannot be said that whatever material was produced by the petitioners were not considered, rather it was minutely examined.

In the background aforesaid, right claimed by the petitioners based on consolidation is not made out. It can be as per the Consolidation of Holdings and Prevention of Fragmentation Act, 1954 (for short "the Act of 1954") and not otherwise. The plea in that regard was not raised and to support the arguments, no order was produced.

It is further stated that Board of Revenue failed to deal with the certain issues raised by the petitioners but the pleadings do not specifically show that certain issues were raised and argued before the Board of Revenue have not been dealt with and if that was so, the petitioners could have preferred a review petition. In any case, in absence of the pleadings to this effect, last argument raised by the petitioners cannot be accepted.

This Court while hearing the writ petition under Article 226 and 227 of the Constitution of India against the order of subordinate court/tribunal/board does not sit as a court of appeal. What is the jurisdiction of this Court under Article 226 of Constitution of India has been held by the Hon''ble Apex Court in the case of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, . Para Nos. 7 and 8 of the aforesaid judgment is quoted hereunder for ready reference:

"7. The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.

For the aforesaid reasons, we are of the view that since the insurer has a remedy by filing an appeal before the High Court, the High Court ought not to have entertained the petition under Article 226/227 of the Constitution and for that reason, the judgment and order under challenge deserves to be set aside. We, accordingly, set aside the judgment and order under appeal. The appeal is allowed. There shall be no order as to costs. However, it would be open to the insurer to file an appeal if it is permissible under the law."

From perusal of the paras quoted above, it comes out that this Court cannot sit as a court of appeal over the order, passed by the three revenue courts having concurrent finding of facts. Taking into consideration the limited jurisdiction of this Court, the challenge to the order passed by the three Courts having concurrent finding of facts cannot be accepted.

The writ petitions so as the stay applications are dismissed accordingly.