Jagdish Narain Pareek vs Board Of Revenue Rajasthan, Ajmer And Ors

This petition has been filed seeking review of the judgment of this Court dated 27.10.2017, by which the special appeal filed by plaintiff-appellant Jagdish Narain Pareek has been dismissed by the Division Bench upholding the judgment of the learned Single Judge dated 02.08.2001 in the writ petition. In the writ petition, challenge was made to the judgment dated 28.12.1990 of the Board of Revenue in Second Appeal as also its judgment dated 06.12.1993 in the Review Petition. By the judgment dated 28.12.1990, the Board of Revenue dismissed the second appeal of the appellant upholding the judgment dated 25.09.1979 of the Revenue Appellate Authority (First), Jaipur as also judgment dated 31.03.1975 of the Sub Divisional Officer, Jaipur. By the judgment dated 06.12.1993, the Board of Revenue dismissed the petition seeking review of the judgment dated 28.12.1990.

The argument of the appellant before the Division Bench was that the suit was filed by the plaintiff-appellant as a minor in the year 1967 after death of his father in 1963 through his legal guardian and therefore from the point of view of limitation, this being the suit of declaration and possession should have been treated within limitation. It was also argued that prayer was made only for declaration and other consequential reliefs. There is no limitation for a declaratory suit under the Rajasthan Tenancy Act, 1955 and even under the Jaipur Tenancy Act, 1945, which was prevalent earlier. It was also argued that there was no limitation for declaratory suit but it could be for possession, and once the decree of declaration is passed in favour of the plaintiff-appellant, the possession would be given as a consequential relief. Reliance in this connection was placed on the judgments of the Supreme Court in Shakuntala Devi Vs. Kamla and Others, (2005) 5 SCC 390, and Venkataraja and Others Vs. Vidyane Doureradjaperumal, (2014) 14 SCC 502.

The Division Bench dismissed the appeal by recording a finding that this argument was for the first time being raised before the Division Bench and the question of limitation was not specifically canvassed before the authorities below. It was held that the Board of Revenue has rightly observed in its judgment that the suit was time barred, which finding has been approved by the learned Single Judge, therefore the limitation, which is applicable in the case of possession, cannot be indirectly removed by seeking support of the aforementioned judgments of the Supreme Court that possession is merely a consequential relief. It is argued that the Petition for Special Leave to Appeal (Civil) No.5842/2018, Jagdish Narain Pareek Vs. Nathu (D) through Lrs & Others, was filed before the Supreme Court against the judgment and order dated 27.10.2017, which was dismissed by the Supreme Court vide judgment dated 02.04.2018, as withdrawn with liberty to the appellant to file a review petition.

For ready reference, the order dated 02.04.2018 of the Supreme Court is reproduced below:-

"Upon hearing the counsel the Court made the following ORDER.

Learned Senior Counsel appearing for the petitioner seeks permission to withdraw this petition with liberty to file review petition before the High Court.

Permission, as sought for, is granted.

Accordingly, the special leave petition is dismissed as withdrawn with the aforesaid liberty.

Needless to state that in case the petitioner fails before the High Court, he is permitted to approach this Court once over again challenging the main order as well as the order passed in the review petition."

Learned Senior Counsel has referred to the judgment of the first court, i.e., the court of Sub Divisional Officer, dated 31.03.1975 to point out that issue no.4 was specifically framed to the effect whether the suit was time barred and that issue was decided against the appellant that the limitation for filing the suit came to an end in August, 1967. Thereafter this question was again agitated before the Revenue Appellate Authority, which is evident from its judgment dated 25.09.1979, where the argument was made that according to Section 88 of the Rajasthan Tenancy Act, 1955 there is no limitation for filing a declaratory suit and reference was also made of Section 183 of the Rajasthan Tenancy Act, 1955 where the limitation of 12 years is given for a suit for ejectment. The Board of Revenue in its judgment dated 28.12.1990 has also examined the question of limitation. It is contended that the argument of limitation was very much raised, in that once the declaration is granted, the possession would be a consequential relief and therefore the Division Bench was not justified in dismissing the appeal while recording a finding that this argument was for the first time raised before them.

Learned counsel for the respondents opposed the review petition and contended that the Division Bench was justified in dismissing the appeal as it cannot be accepted that the courts below have not correctly decided the question of limitation. Learned counsel also referred to the findings recorded by all the courts below to argue that predecessor-in-title of the respondents were in possession prior to 1950, which was proved by 'parcha' settlement of 1950 and such 'parcha' settlement were distributed up to the year 1955 and therefore the limitation of 12 years provided for under Section 183 of the Rajasthan Tenancy Act, 1955 would expire in August, 1967. The suit was thus time barred. All the courts below have concurrently decided this issue against the appellant. There is no justification for review of the judgment.

Having heard learned counsel for the parties and perused the material on record, we find that though the question of limitation may have been decided concurrently by all the courts/authorities below against the appellant including by the learned Single Judge but the findings recorded by the Division Bench in para 18 and 19 of the judgment indeed fall within the purview of error apparent on the face of the record as the Division Bench was not justified in observing that "....The question of limitation has been argued for the first time and was not canvassed specifically before any of the authorities." No discussion whatsoever has been made with regard to correctness of the findings recorded by the learned Single Judge or any of the courts below with reference to Section 88 and 183 of the Rajasthan Tenancy Act, 1955. So far the judgments of the Supreme Court, referred to above, cited by the learned counsel for the appellant to argue that in a case of declaratory suit the possession would come as a consequence thereof and there would be no limitation for that, the Division Bench has not distinguished those judgments and rejected the argument by merely observing that the limitation which has been applicable in the case of possession, it cannot be indirectly removed by seeking support of the Supreme Court's judgments that the possession is merely a consequential relief.

In our view, the arguments of the review-petitioner have not been satisfactorily dealt with in the judgment of which review is sought for and it was an error apparent on the face of the record to observe that the question of limitation has been argued for the first time and not canvassed before any of the courts/authorities below. The petitioner has made out a case for recall/review of the order and hearing of the appeal on merits afresh.

In the result, the review petition is allowed. The impugned judgment is recalled. The appeal is restored to its original number. The appeal be placed for hearing and decision afresh.