Jagdish and Others vs Radha Devi and Others

Alok Sharma, J.—1. Since these two petitions arise between the same parties and involve common facts and law, they are being decided by a common order.

The petitioners-defendant No. 2, 3, 5 and 6 (hereinafter ''the defendants'') have impugned the judgment dated 6-5-2015 passed by the Board of Revenue Ajmer (hereinafter ''the Board'') dismissing their two appeals (506/2011 and 508/2011) and affirming the judgment and decree dated 10-1-2011 passed by the Revenue Appellate Authority Jaipur (in Appeals No. 95/2010 and 96/2010) which in turn had upheld the judgment and decree dated 15-2-2010 and 4-9-2008 passed by the Assistant Collector Bassi.

The facts of the case are that the respondent-plaintiff Radha Devi (hereinafter ''the plaintiff'') filed a revenue suit before the Assistant Collector Bassi for partition of agricultural land to the extent of her share of 40/1249 in khasra No. 3 admeasuring 62 bigha 9 biswas village hardhyanpura, Ramratanpura Tehsil Bassi and to an extent of 1/6 with the defendant No. 1 in Khasra No. 2 in the same village admeasuring 12 biswa. It was stated that out of the land of khasra No. 3 measuring 62 bigha 9 biswa, 80/1249 share was sold by the petitioners-defendants, the erstwhile khatedars Jagdish, Brajmohan, Sitaram, Rameshwar and Radheshyam (the defendants No. 2 to 6) to the plaintiff Radha Devi and the defendant No. 1 Manfooli, through a registered sale deed dated 19-10-2005. It was stated that under the said registered sale-deed the plaintiff and defendant No. 1, were put in exclusive possession of the land purchased by each of the two, to an extent of 40/1249 share in khasra No. 3 (total 80/1249). The other defendants 8&9 continued to remain in the khatedari and possession of 1/3rd share in khasra No. 3. The defendants No. 2 to 6 similarly remained in exclusive possession of their respective shares. Hence the agricultural lands in khasra No. 3 were effectually orally partitioned on basis of exclusive possession agreed upon. The holdings were accordingly reflected in the revenue record albeit jointly. It was further stated that in respect of khasra No. 2 admeasuring 12 biswa (chahi) (well) the plaintiff and the defendant No. 1 Manfooli had 1/6th share and remaining share belonged to other defendants No. 2 to 9.

On service of summons in the suit, the defendant No. 1 Manfooli and defendants No. 8&9 filed their respective written statements in support of the plaintiff. The defendants No. 2 to 7 remained unrepresented despite services of summon in the suit and were made ex-parte by orders dated 5-2-2008 and 25-4-2008. On an application moved under Order 9 Rule 7 CPC by defendants, it was allowed on 12-6-2008. However written statement yet was thereafter not filed nor the defendants appeared before the trial court. Consequently on 12-8-2008, proceedings were again made ex-parte against them. Then on hearing submission of counsel for the plaintiff, defendants No. 1, 8 and 9 (Manfooli, Ram Kishor and Roop Narayan) who admitted to the facts set up by the plaintiff before the trial court and on the basis of Jamabandi of Svt.2059-2062 which was duly exhibited, a preliminary decree was passed on 4-9-2008 holding that the plaintiff was entitled to a decree of partition to an extent of 40/1249 share in khasra No. 3 admeasuring 62 bigha 9 biswa. It was further held that the plaintiff along with defendant No. 1 Manfooli was entitled to 1/6 share in khsara No. 2 admeasuring 12 biswa therein, which was in the nature of gair mumkin chahi (well). The Tehsildar was ordered to prepare and submit a scheme of partition (kurrejat report) before the trial court. The Tehsildar in terms of the preliminary decree dated 4-9-2008 prepared the kurrejat report on 8-12-2009 before the trial court. No objections were raised by the contesting parties or otherwise, consequent to which final decree for partition and as prayed for came to passed on 15-2-2010.

The preliminary decree dated 4-9-2008 as also the final decree dated 15-2-2010 came to be challenged by the petitioners (defendants No. 2, 3, 5 and 6) by filing two separate appeals (95/2010 and 96/2010) under Section 223 of the Rajasthan Tenancy Act, 1955 (hereinafter ''the Act of 1955'') before the Revenue Appellate Authority, Jaipur. Vide judgment and decree dated 10-1-2011 both the appeals were dismissed. It was held by the Revenue Appellate Authority that the preliminary decree 4-9-2008 was passed on the basis of revenue record i.e. Jamabandi of Svt.2059-2062, and thereafter the final decree dated 15-2-2010 on the basis of Kurrejat report prepared by the Tehsildar on visiting the site providing full opportunity to the contesting defendants. Dissatisfied with the adjudication by the two courts below fundamentally on the basis of the uncontested case set up by the plaintiff on the basis of revenue record (which in turn were based on the registered sale-deed dated 19-10-2005 executed by the defendants-petitioners themselves), the defendants invoked the provisions of Section 224 of the 1956 Act in filing two second appeals (506/2011 and 508/2011) before the Board. These two appeals were dismissed vide judgment dated 6-5-2015. It was held that ex-parte proceedings against the defendants were rightly taken by the trial court for the reason of their failure to contest the case despite service of summons in the suit. It was noted that final decree dated 15-2-2010 was passed on the basis of consent of the defendants No. 1, 8 and 9, the other defendants being ex-parte. It was also noted that even otherwise the judgment and final decree dated 15-2-2010 passed by the trial court as affirmed in appeal was based on the revenue record--Jamabandi pertaining to Svt.2059-2062 and possession of the parties. Hence this petition.

Senior counsel Mr. Maloo appearing with Mr. V.K. Tamolia on behalf of the petitioners-defendants has submitted that the concurrent judgments of the three courts below are liable to quashed and set aside on the ground that the preliminary decree dated 4-9-2008 was passed on preponment of the case which even though the defendants were ex-parte, entailed violation of the principles of natural justice. It was further submitted that even otherwise the judgments and decree of the courts below are vitiated for having not appreciated that the Tehsildar did not prepare the scheme of partition (kurrejat report) in accordance with law after due notice to all defendants in compliance with the Rules 20/21 of the Rajasthan Tenancy Rules, 1955. It was also submitted that before passing the final decree 15-2-2010 on the scheme of partition/kurrejat report submitted by the Tehsildar, the defendants-petitioners were not allowed an opportunity of hearing. On this count the impugned judgments and decree are liable to be quashed and set aside, submitted Mr. Maloo.

Heard. Considered.

The Apex Court in the case of State Vs. N.S. Ganeswaran [, (2013)3 SCC 594] has held that unless in a given situation, the aggrieved person makes out a case of prejudice or injustice, some infraction of law would not vitiate the impugned order/enquiry/result. The court should pro-actively see whether prejudice to the aggrieved person has been occasioned and in judging the question of prejudice the court must act with a broad vision and look at substantial justice. In the case of Eastern Coalfields Ltd. Vs. Bajrangi Rabidas [, (2014)13 SCC 681] the Apex Court has reiterated that the jurisdiction of High Court under Article 226 of the Constitution of India is equitable and discretionary and should not be exercised unless substantial injustice has ensued or was likely to result from the order impugned before the writ court. Further the High Court exercising its equitable extraordinary jurisdiction can always take cognizance of the entire facts and circumstances of the case and pass appropriate order to balance justice and to promote, honesty and fair play.

In the background of the nature of jurisdiction under Article 226/227 of the Constitution, which is discretionary and not of course, it would be relevant to note that the defendants-petitioners who have laid this writ petition against the impugned concurrent judgments passed by the three courts below were the vendors of their shares in the agricultural land to the plaintiff and the defendant No. 1 vide registered sale-deed dated 19-10-2005. This sale deed dated 19-10-2005 at no point of time has been put to challenge and is admittedly operative. Under the said registered sale-deed, the plaintiff and defendant No. 1 were sold 80/1249 share by the petitioners in their 2/3 share in khasra No. 3 admeasuring 62 bigha 9 biswa for a receipted consideration of Rs. 6 lacs. It also indicates that the defendants-petitioner also sold their 1/7 share in khasra No. 2 admeasuring 12 biswa (gair mumkin chahi well). Following the sale, the plaintiff and the defendant No. 1 were put into exclusive possession of the land to the extent of their purchase, with the right to use, cultivate and enjoy it absolutely. For facility of reference, relevant portions of the sale deed dated 19-10-2005 are reproduced hereunder:-

The suit of the plaintiff was in the circumstances rightly not contested by the defendants (petitioners) before the trial court in the facts of the case. The defendants No. 1 and 8&9 admitted to the fact of oral partition and that each of joint khatedars plaintiff, defendants No. 1, 8 & 9 had exclusive possession, use and enjoyment to the extent of their respective shares as per the revenue record. In these circumstances, the preliminary decree dated 4-9-2008 was passed requiring the Tehsildar to prepare the partition scheme/kurrejat report reflecting actual possession of the plaintiff and the defendant No. 1. The land of each of the joint khatedars of which they were in possession was situate on the road with equal valuation. On the basis of partition scheme/kurrejat report submitted by the Tehsildar, the final decree dated 15-2-2010 was passed. Both the preliminary decree dated 4-9-2008 and final decree dated 15-2-2010 were affirmed by the Revenue Appellate Authority Jaipur vide judgment dated 10-1-2011 and the Board vide judgment dated 6-5-2015.

It is to be noted that the defendant No. 3 Brijmohan s/o Bhagwan Sahai, one of the vendors of the registered sale-deed dated 19-10-2005, has not joined the petitioners in filing the present writ petitions challenging the judgments and decree passed by the three courts below (he has been impleaded as a proforma respondent). This fact further testifies to the genuineness and the truth of the case set up by the plaintiff.

In the context of aforesaid uncontroverted facts of the case that despite selling their 80/1249 share in land of khasra No. 2 ad measuring 62 bigha 9 biswa in question through registered sale-deed dated 19-10-2005 to the plaintiff and defendant No. 1, putting them in exclusive possession with absolute right to use, occupation and enjoyment having been conferred on them, the defendants (petitioners) thereafter sought to obstruct the plaintiff from enjoyment of her khatedari land. In the suit for partition, the defendants remained ex-parte. A preliminary decree dated 4-9-2008 followed and subsequent to the Tehsildar''s kurrejat report, final decree was passed on 15-2-2010. Yet the defendants (petitioners) thereafter misused the judicial process by setting up a case contrary to terms of the registered sale-deed 19-10-2005 executed by them and foisted the Revenue Appellate Authority and the Board of Revenue with farcical appeals. And now they have recklessly invoked both the equitable extraordinary jurisdiction of this court under Article 226 of the Constitution of India and this court''s superintendence over courts below under Article 227 of the Constitution of India.

In my considered opinion the arguments of Senior Advocate Mr. Maloo, as recorded hereinabove, cannot be appreciated for impugning the judgments of the three courts below in the face of the honest, bonafide and proved case of the plaintiff. Salutary provisions of Article 226/227 of the Constitution of India cannot be invoked on technical arguments to defeat substantial justice. The petitioners-defendants sold the suit property to the plaintiff by way of a registered sale-deed and put her and the defendant No. 1 in exclusive possession thereof. They cannot be in any manner aggrieved by the judgments and decree dated 4-9-2008 and 15-2-2010 passed by the trial court, as affirmed by the Revenue Appellate Authority vide judgment dated 10-1-2011 and the Board vide judgment dated 6-5-2015 on the basis of revenue entries in terms of the registered sale-deed dated 19-10-2005.

In the facts and circumstances of the case, I hold these writ petitions to be a gross misuse of the judicial process. I am of the considered view that the court fee for access to the equitable jurisdiction of this court has been kept low at Rs. 25/- for each petition to keep the door open particularly for the poorer sections of the society. That salutary intent of the Legislature cannot be sullied by mischievous litigants approaching this court in vexatious proceedings contrary to their own writing as in this case under the registered sale-deed dated 19-10-2005. The only bulwark against speculative, vexatious and frivolous petitions is costs.

In the circumstances of the case, both the writ petitions are dismissed. The petitioners-defendants(2, 3, 5, 6), in both petitions, are visited with costs of Rs. 10,000/- each (i.e. 40,000/- in the aggregate in each petition) payable to the plaintiff for reason of her having been dragged into a dis-honest, unnecessary and frivolous and vexatious litigation.