Jaipur Development Authority vs Khaju Shah and Others

M.N. Bhandari, J.—By this writ petition, a challenge is made to the order dated 13.07.2006 passed by the Revenue Appellate Authority and the order dated 03.07.2009 passed by the Board of Revenue with a prayer for dismissal of the suit filed by the plaintiff-non-petitioner.

It is stated that a suit was filed by the non-petitioner No. 1 under Section 88 and 188 of Rajasthan Tenancy Act, 1955 (in short "Act of 1955"). It was for permanent injunction and declaration. The prayer therein was to declare non-petitioner No. 1 as khatedar of 21 bigha and 18 biswa land out of Khasra No. 22 with new Khasra Nos. 74 to 77, 40, 42, 43. It was consist of 32 bigha and 18 biswa of land, situated at Village Moja Udaipur Gilariya, Tehsil-Sanganer. The non-petitioner No. 1-plaintiff claimed khatedari of the land alleging its purchase from Jagirdar Tarachand on 06.09.1955. Remaining land was sold to one Deva Raiger.

The land aforesaid was resumed w.e.f. 01.11.1958 under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (in short "Act of 1952"). After the Notification for resumption, the non-petitioner-plaintiff had no right in the land. The non-petitioner No. 1-plaintiff, however shown possession of land prior to Samvat year 2012 i.e. when Tenancy Act, 1955 came into effect. He alleged purchase of land from Jagirdar Tarachand prior to resumption. On purchase of land on 06.09.1955, a patta was alleged to have been issued by the Jagirdar.

The plea raised by the non-petitioner No. 1-plaintiff was in ignorance of the fact that Jagirdar Tarachand filed a claim petition under the Act of 1952 before the Deputy Collector (Jagir) on 25.12.1958. The statement of Jagirdar was recorded by the Deputy Collector (Jagir), where he did not state sale of land in question to non-petitioner No. 1-plaintiff. The land in dispute was recorded in the name of Jagirdar and if it was purchased by plaintiff-non-petitioner, it should have been recorded in his name. During the settlement proceedings, it was recorded as "charagah" and, later on, entered in the name of JDA.

The plea of the non-petitioner-plaintiff was refuted by the JDA-defendant as well as the State Government. The possession of the land by the plaintiff was denied apart from right of Jagirdar to issue patta after resumption of land. The Jagirdar had no right to issue patta in favour of father of non-petitioner-plaintiff, thus the land was rightly entered in the name of JDA.

The SDO Court framed 6 issues and all were decided against the plaintiff. Thus suit was dismissed. The non-petitioner-plaintiff preferred an appeal before the Revenue Appellate Authority, which was accepted. The petitioner filed an appeal before the Board of Revenue but it was dismissed in ignorance of forgery in the record. There were two records, one was in Revenue Department and other in Settlement Department. In the Settlement Department, the land in dispute has been shown to be "charagah".

The Board of Revenue ignored the aforesaid and the earlier proceedings, initiated under Section 91 of the Rajasthan Land Revenue Act, 1956 (in short "Act of 1956"), against the non-petitioner''s son showing encroachment on the land in dispute. The Tehsildar passed an order imposing penalty and eviction. The challenge to the aforesaid remained unsuccessful before the Assistant Collector and the Revenue Appellate Authority. The revision petition filed before the Board of Revenue was also dismissed except that civil imprisonment was condoned on giving possession of land. The non-petitioner''s son thereafter filed a writ petition followed by special appeal but were dismissed. Non-petitioner''s son was shown to be a trespasser. The aforesaid establishes that the non-petitioner was not having right in the disputed land, rather they were considered to be encroachers. The aforesaid fact was ignored by the Board of Revenue while passing the order on appeal preferred by the petitioner-JDA. In view of above, the orders passed by the Revenue Appellate Authority so as Board of Revenue deserve to be set aside. The prayer is accordingly made to allow the writ petition.

Per contra, writ petition is opposed by the non-petitioner No. 1. It is stated that the petitioner-JDA has raised question of facts to challenge the orders of Revenue Appellate Authority so as the Board of Revenue. They have even made reference of alleged proceedings for resumption of land under the Act of 1952 without placing any documents on record before the court below. The issue of resumption of the land under the Act of 1952 was not even raised before the court below. It has been taken up before the High Court for the first time. It is in ignorance of the fact that the land in dispute was sold by the Jagirdar in the year 1955 itself. The notification for resumption of land under the Act of 1952 was not existing till then as it was issued on 01.11.1958. It was not made applicable to the sale prior to 01.11.1958. The JDA was given time to produce the documents to show the proceedings by the competent authority for resumption of land under the Act of 1952 but they failed to produce any document to support it, thus plea raised by the JDA regarding resumption of land is without any basis.

To clarify the facts regarding resumption of land under the Act of 1952, it was submitted that land of Khasra No. 22 was consist of 32 bigha and 18 biswa land and was recorded to be of "Thikana". The Jagirdar Tarachand agreed to sale 21 bigha and 18 biswa of land to the non-petitioner. The remaining 10 bigha and 10 biswa land was sold to Deva Raiger. Both of them were cultivating the land by paying "lagan" to the Jagirdar. An agreement to sale in favour of non-petitioner was executed on Miti Sudi 5 Samvat 2011 i.e. somewhere in the year 1954. The sale deed was then executed on 06.09.1955. The sale of land was thus, prior to notification for resumption of Jagirs on 01.11.1958. The non-petitioner was in cultivatory possession of the land in question from Samvat 2013 to 2034 and his name was shown in the revenue record. The Khasra Girdawari was submitted to prove the aforesaid. The non-petitioner produced Khatoni Bandobast of Samvat-2015 to 2034, wherein, land was recorded in their name. The remaining land out of Khasra No. 22 was recorded in the name of Deva Raiger, thus the entire land of Khasra No. 22 was recorded in the name of individual and not in the name of Government or the JDA. It is quite surprising that while the suit maintained by the non-petitioner has been contested by the JDA on the plea of resumption of land under the Act of 1952, no proceedings were taken against Deva Raiger. He had also purchased part of land. The proceedings under Section 90B of the Land Revenue Act were accepted for conversion of his land. He has been given pattas by the JDA, thus for one and same land, petitioner has taken two different pleas.

It is also submitted that the Jagirdar Tarachand filed an application before the Collector (Jagir) under the Act of 1952. Therein, his statement was recorded on 23.05.1963. He categorically stated that 21 bigha and 18 biswa of land was sold to Khaju Khan on 06.09.1955. The aforesaid statement is material to show that the land in question was not part of resumption under the Act of 1952, though other land of Jagirdar may have been part of the proceedings. By referring the proceedings of other land under the Act of 1952, the JDA is trying to create confusion. The statements of Jagirdar, non-petitioner No. 1 and Deva Raiger were recorded, which substantiate the fact regarding sale of the land by Jagirdar Tarachand. The documents were submitted to show not only sale of the land by Jagirdar but receipt of the amount also. It was to show sale of the land prior to notification for resumption on 01.11.1958. The land in dispute was not recorded as "charagah" before alleged resumption.

The change in entries was made subsequently by the Settlement Department without having authority and providing opportunity of hearing to the non-petitioner. The settlement department had no jurisdiction to record entries contrary to what was existing in the revenue record, thus it was rightly considered by the Revenue Appellate Authority and the Board of Revenue while passing the impugned orders. The authority and jurisdiction of the Settlement Department have been considered and decided by the Apex Court in the case of Rattan Chand and Others Vs. Mori (D) By LR and Others and by this court in the case of Geega Ram and Anr. Vs. The Board of Revenue and Ors., reported in 2008 (1) WLC 110. It was held that Settlement Department has no authority to change the entry without an order of competent authority. The action of the Settlement Department to change the entries was thus without authority and jurisdiction.

The allegation of forgery in the revenue record is also erroneous. The revenue record contains proper and correct entries. It is not shown to be "pasture land", whereas, the Settlement Department has shown it to be "pasture land" in an illegal and erroneous manner. The allegation of forgery has been made in ignorance of the fact that Khasra No. 22 was shown to be "Barani Doyam" in the khatedari of non-petitioner and not "charagah land". The change of nature of land by the Settlement Department was without jurisdiction and has been taken to be a case of interpolation in the revenue record in a misconceived manner. The non-petitioner had maintained the suit for declaration and injunction and was rightly decreed by the Revenue Appellate Authority and the order has been upheld by the Board of Revenue. The SDO failed to consider the evidence properly before drawing conclusion on all the 6 issues, so framed for adjudication of the suit. The order passed by the SDO court is based on the record of the Settlement Department without considering the evidence led by the non-petitioner. It failed to consider that at the time of coming into effect, the Act of 1952 and 1955, the land was shown to be of "Thikana" and not a "pasture land". The Khasra No. 22 was consist of 32 bigha and 18 biswa of land and out of it, Deva Raiger has already been given patta by the JDA after the proceedings under Section 90B of the Act of 1956. The patta to Deva Raiger would not have been given if it was recorded as "pasture land". The aforesaid aspect was ignored by the SDO Court.

Coming to the facts regarding proceedings under Section 91 of the Act of 1956, it is submitted that the aforesaid were not in reference to the land in dispute, yet it has been referred by the petitioner. It is nothing but an attempt to create confusion. The proceedings under Section 91 of the Act of 1956 were for different land than involved herein. In view of above, while dismissing the writ petition, the order of the court below be upheld.

Learned counsel for non-petitioner then referred each issue decided by the Revenue Appellate Authority and upheld by the Board of Revenue to show proper consideration of the evidence and material on record. The conclusions have been drawn thereupon and are supported by the evidence. A prayer is made to dismiss the writ petition.

I have considered rival submissions of the parties and scanned the material carefully.

The facts given by both the parties are not required to be reiterated but would be referred at the time of consideration of the issues raised by them.

It is a fact that on filing of the suit by the non-petitioner, the SDO court framed 6 issues. The first issue was as to whether the land in dispute was recorded in the name of Jagirdar and sold to the non-petitioner vide sale deed dated 06.09.1955. The aforesaid issue was decided adverse to the non-petitioner but finding therein was reversed by the Revenue Appellate Authority. It was found that from Khasra No. 22, consists of 32 bigha and 18 biswa of land, 10 bigha and 10 biswa was sold to Deva Raiger on 08.09.1951 and remaining 21 bigha and 18 biswa to the non-petitioner vide sale deed dated 06.09.1955. In view of above, land in question was sold prior to notification under the Act of 1952 for resumption of Jagirs on 01.11.1958. The fact regarding sale was admitted by Jagirdar Tarachand in the proceedings before the Collector (Jagir). The statement of Jagirdar was recorded on 23.05.1963. In view of facts given above, issue No. 1 was decided in favour of the non-petitioner-plaintiff, who was found in cultivatory possession. The Jagirdar was having authority to sale the land prior to its resumption under the Act of 1952.

The further issue was as to whether the land in dispute was a pasture land and never remained under cultivation of non-petitioner, thus rightly recorded in the name of the JDA. The court below found that in the year 1955 i.e. Samvat 2012, the land was not recorded as "charagah" but was shown to be of "Makbuja Thikana" The Tehsildar admitted that the land was not recorded as "charagah". If land in dispute would have been "pasture land", then there was no reason for the JDA to allow the proceedings under Section 90B in favour of Deva Raiger for part of the land out of khasra No. 22. The Khasra Girdawari of Samvat 2009 to 2013 were also considered and it was found that land was under cultivatory possession of the non-petitioner. The name of Tarachand, Jagirdar was recorded and the non-petitioner was shown to be a sub-tenant in the Khatoni Bandobast of Samvat 2015 to 2032. The Settlement Department, however shown it to be "pasture land" without any authority and in ignorance of the revenue record. Both the courts below thus decided issue No. 2 in favour of the non-petitioner holding that the land in question was wrongly recorded in the name of the JDA.

The issue No. 3 was as to whether non-petitioner-plaintiff is entitled to declaration of khatedari right as he was in cultivatory possession on the date, Act of 1955 came into effect. The Revenue Appellate Authority found that the land in dispute was shown to be of Jagirdar Tarachand and non-petitioner to be sub-tenant. It was not shown to be "pasture land" till Samvat 2050. Since the non-petitioner-plaintiff was in possession of the land as sub-tenant and had purchased the land subsequently in the year 1955, he became khatedar of the land even by virtue of Section 15 of the Act of 1955. It was wrongly recorded in the name of State after showing it to be "pasture land".

The other issues were regarding relief claimed by the non-petitioner and had been decided in his favour, looking to the facts given above.

The first issue for my consideration is as to whether the land in question resumed in pursuance to the Act of 1952. The counsel for the non-petitioner submitted that the issue aforesaid was not raised before the court below but I find that the petitioner JDA has pleaded the ground before the court below. It is thus not correct to say that the petitioner did not raise issue of resumption of the land under the Act of 1952. In view of the above, question remains as to whether findings recorded by the Revenue Appellate Authority and the Board of Revenue are just and proper. The perusal of the orders of the Board of Revenue so as Revenue Appellate Authority shows that Khasra No. 22 was consisted of 32 bigha and 18 biswa. It was shown to be of Jagirdar Tarachand and, out of it, 10 bigha and 10 biswa was sold to Deva Raiger in the year 1951 and remaining to the non-petitioner in the year 1955 under the sale deed dated 06.09.1955. It was prior to notification of resumption of Jagirs on 01.11.1958. The statement of Jagirdar was recorded on 23.05.1963 before the Collector (Jagir). He had accepted sale of the land to the non-petitioner in the year 1955 itself. In view of above, question of resumption of land under the Act of 1952 does not arise. The petitioner failed to submit any document regarding resumption of land in question under the Act of 1952, though opportunity was given to produce the documents even during the course of arguments. It was however produced along with the written arguments. The document so produced does not make a reference of Khasra No. 22, though reference of land of the village concerned exist. The document so produced for the first time along with written arguments does not help JDA in absence of reference of khasra No. 22. In the background, I do not find any substance in the arguments of the learned counsel for petitioner regarding resumption of land under the Act of 1952.

The Khasra Girdawari of Samvat 2009 onwards shows cultivatory possession of the non-petitioner wherein Jagirdar was shown to be khatedar and non-petitioner''s father to be sub-tenant. It has also come on record that till the year 1955, when Tenancy Act came into effect, land in dispute was not recorded to be "pasture" but was shown to be of Jagirdar. In view of above, the non-petitioner becames khatedar by implication of Section 15 of the Act of 1955.

The question further remains as to whether land in question was "pasture" thus rightly recorded in the name of State and now in the name of JDA. The facts available on record shows that old Khasra No. 22 was not recorded as pasture land till the Act of 1955 came into effect. Out of the total land, 10 bigha and 10 biswa was sold to Deva Raiger, which could not have been, if it was a pasture land. The land sold to Deva Raiger was even subject matter of proceedings under Section 90B of the Act of 1956 followed by issuance of patta by the JDA. The aforesaid fact shows that Khasra No. 22 was not a pasture land otherwise there was no reason to accept the entries in the name of Deva Raiger and then to issue patta by the JDA itself. It was recorded as pasture land by the Settlement Department in their record contrary to record of the revenue department. It was without opportunity of hearing to the non-petitioner. In the Girdawari and Khatoni Bandobast, land in question was shown to be of "Thikana" and non-petitioner''s father to be sub-tenant. The question of resumption of land under the Act of 1952 comes in picture, if it is not a pasture land but a land belonging to a "Thikana". The Settlement Department thus wrongly changed the entries of the land in question and then to record it in the name of JDA. The petitioner has raised pleas in contradiction to each other.

The non-petitioner was shown to be in cultivatory possession, thus got khatedari rights as per Section 15 of the Act of 1955, irrespective of purchase of the land in the year 1955 itself The Revenue Appellate Authority came to the conclusion that Settlement Department made entries different than what existed in the revenue record and it was without authority of law. The Jurisdiction of the Settlement Department to change the entries has been subject matter of various judgments referred by the non-petitioner. It was held by the Apex Court and this Court in the case (supra) that the Settlement Department has no authority to change the entries. The Board of Revenue so as Revenue Appellate Authority thus rightly drawn conclusions.

The SDO court also recorded finding in favour of the non-petitioner at one place but dismissed the suit for the reason that land is recorded in the name of JDA. The finding recorded by the SDO Court is reproduced hereunder:

After the aforesaid, further finding was recorded adverse to the non-petitioner in contradiction.

The question now remains about the proceedings under Section 91 of the Act of 1956, against non-petitioner''s son. The perusal of the record shows that the proceedings therein were for Khasra Nos. 1/2/2 and 22/1 and not for Khasra No. 22 and land therein is 5 bigha and not 21 bigha and 18 biswa. This seems to be reason that aforesaid fact was not raised before the court below. The petitioner-JDA has raised aforesaid issue before this court for the first time. The question of facts cannot be raised for the first time before this court.

The allegation for change of record has also been made. It is alleged that interpolation was made in the revenue record for the land in dispute. The land was shown to be "charagah" but, with interpolation in the revenue record, the word "charagah" was removed. To appreciate the argument, I have gone through the documents submitted by the petitioner at Annexure-11 onwards. The aforesaid documents are of Settlement Department, wherein, in one document, the nature of land in question was shown as "pasture" whereas Jagirdar Tarachand was shown as khatedar. The pasture land is not recorded in the individual name but in the name of government. The record produced by the JDA shows land to be in the name of Jagirdar and Khasra Girdawari shows non-petitioner to be sub-tenant. The aforesaid shows that settlement department changed the entries initially by showing it to be pasture land and subsequently recorded it in the name of government and lastly in the name of JDA. The record does not show interpolation, rather it seems that Settlement Department made entries contrary to revenue record. If the land in dispute was a pasture land then question of its resumption under the Act of 1952 does not arise, whereas, the petitioner has raised plea about resumption of land also. The pasture land always remains in the name of government and not of "Thikana".

In view of discussion made above and the findings recorded by the Revenue Appellate Authority so as the Board of Revenue, I do not find any reason to cause interference in the concurrent findings of fact recorded by the two courts below rather SDO court also recorded finding in favour of the non-petitioner.

The jurisdiction of this court is otherwise very limited to cause interference in the orders passed by the courts below in view of judgment of the Hon''ble Apex Court in the case of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, (2003) 1 ACC 33 : (2003) ACJ 505 : AIR 2003 SC 1561 : (2003) 6 JT 126 : (2003) 1 SCALE 739 : (2003) 3 SCC 524 : (2003) 1 SCR 567 . Para Nos. 7 and 8 of the aforesaid judgment is quoted hereunder for ready reference:

"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution of India 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 Articles 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 file an appeal if it is permissible under the law."

In view of the judgment in the case of Sadhna Lodh (supra), this court is having limited jurisdiction to interfere in the concurrent findings of fact of the courts below. It is more so when no error on the face of it is coming out. This court even considered new documents produced for the first time, that too, in written arguments, though, it could have been denied in absence of an application for taking documents on record.

In view of above discussion, I do not find any merit in the writ petition. It is accordingly dismissed.