Shakoor Mohammed and Others vs Board of Revenue and Others

Sangeet Lodha, J.�This writ petition is directed against order dated 10.4.12 passed by the Board of Revenue, Rajasthan, Ajmer, whereby second appeal preferred by the respondent No. 5-Safi Mohammed against the judgment and decree dated 4.10.07 passed by the Revenue Appellate Authority (RAA), Bhilwara in appeal No. 149/03, affirming the judgment and decree dated 19.2.03 passed by the Sub Divisional Officer(SDO), Gulabpura in Revenue Suit No. 84/93, dismissing the suit preferred by the respondent No. 5, has been allowed and while setting aside the judgment and decree passed by the RAA dated 4.10.07 and judgment and decree dated 19.2.03 passed by the SDO, Gulabpura, the directions have been issued to the Receiver to hand over the possession of the disputed land to the respondent No. 5.

The respondent No. 5 preferred a suit under Section 188 of Rajasthan Tenancy Act, 1955 (for short "the Act of 1955") seeking permanent injunction against the petitioners herein, in respect of the land ad measuring 64 bighas comprising khasra No. 3077, claiming himself to be recorded khatedar of the land. The suit was contested by the petitioners herein by filing a written statement thereto, stating that they are in possession of the land in question and the petitioners never remained in possession of the land in preceding 20 years. On the basis of the pleadings of the parties, the trial court framed the issues and parties led their evidence.

After due consideration of the evidence on record, the suit preferred by the respondent No. 5-plaintiff was dismissed by the SDO, Gulabpura vide judgment and decree dated 19.2.03. Aggrieved thereby, the respondent No. 5 preferred an appeal before the RAA, Bhilwara, which stood dismissed vide judgment and decree dated 4.10.07. Aggrieved thereby, the respondent No. 5 preferred second appeal before the Board of Revenue, which stands allowed in the terms indicated above by the order impugned. Hence, this petition.

Learned counsel appearing for the petitioners submitted that the Board of Revenue has seriously erred in reversing the judgment and decree passed by the RAA, affirming the judgment and decree passed by the SDO, Gulabpura. Learned counsel submitted that Board of Revenue has not considered the evidence on record in correct perspective. Learned counsel submitted that the findings recorded by the courts below issue wise after due consideration of the evidence on record has been reversed by the Board of Revenue by merely recording its conclusion without considering the evidence on record. Learned counsel submitted that the Board of Revenue has proceeded to set aside the order taking note of the temporary injunction granted by the court and the order appointing the Receiver of the land which is ex facie erroneous. Learned counsel submitted that the concurrent findings arrived at by the trial court and the first appellate court has been set aside by the Board of Revenue by passing a cryptic order and therefore, the same deserves to be set aside.

On the other hand, learned counsel appearing for the respondent No. 5 submitted that during the pendency of the suit, an application was preferred on his behalf under Section 212 of the Act of 1955, which was allowed by the SDO, Gulabpura vide order dated 14.6.94 and the petitioners were restrained from interfering with the cultivatory possession of the respondent No. 5. It is submitted that the petitioners continue to interfere with the possession of the respondent No. 5 and therefore, vide order dated 30.8.94, the SDO, Gulabpura appointed Tehsildar, Hurda as Receiver of the disputed land and pursuant thereto, the possession of the land was taken over by the Tehsildar, Hurda on 2.9.94. Learned counsel submitted that the Board has committed no error in reversing the finding recorded by the RAA, affirming the findings recorded by the SDO, Gulabpura. Learned counsel submitted that the petitioner No. 1 had later filed a suit under Section 88 of the Act of 1955 for declaring him as khatedar tenant of the disputed land which stands dismissed by the Assistant Collector, Gulabpura vide judgment and decree dated 23.8.12 and an appeal preferred aggrieved thereby, has also been dismissed by the RAA vide judgment and decree dated 27.9.13. It is submitted that of course, second appeal preferred by the petitioner is pending before the Board of Revenue. Learned counsel submitted that the suit preferred by the petitioner for declaring him as khatedar tenant of the land in question having been dismissed by the court of competent jurisdiction, the order impugned passed by the Board of Revenue does not warrant interference by this court.

I have considered the rival submissions and perused the material on record.

A bare perusal of the impugned judgment reveals that the Board of Revenue has not assigned any cogent reasons for reversing the concurrent findings arrived at by the courts below. The Board has opined that the concurrent findings arrived at by the courts below is based on the oral evidence led on behalf of the petitioners herein, ignoring the documentary evidence available in favour of the respondent No. 5 herein. As a matter of fact, the concurrent findings arrived at by the courts below on the various issues framed has been reversed by the Board of Revenue by merely recording its ipse dixit as aforesaid. It is pertinent to note that while setting aside the judgment passed by the RAA, affirming the judgment and decree passed by the SDO, Gulabpura, the suit preferred by the respondent No. 5 has not been decreed as prayed for. However, directions have been issued to the Receiver to hand over the possession of the disputed land to the respondent No. 5.

In the considered opinion of this court, the Board of Revenue was not justified in reversing the concurrent findings arrived at by the courts below by passing the order impugned without consideration of evidence on record objectively. In this view of the matter, the impugned judgment and order is not sustainable in the eyes of law.

In the result, the writ petition is allowed. The order impugned passed by the Board of Revenue dated 10.4.12 is set aside. The matter is remanded to the Board of Revenue for consideration afresh in accordance with law. The parties shall appear before the Board of Revenue on 19.2.14. No order as to costs.