1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT S.B.Civil Writ Petition No.1500/1996 Smt. Anup Kanwar and others. vs. Smt. Prem Kanwar and others. Date : 21.8.2007 HON'BLE MR. PRAKASH TATIA, J. Mr.D Kawadia a/w Mr.RS Makkad, for the petitioners. Mr.S Mathur, for the respondents. - - - - - BY THE COURT : Heard learned counsel for the parties. The petitioners/defendants and some of the legal representatives of original defendant, have challenged the order dated 24.11.1995 by which the Board of Revenue partly accepted the appeal and set aside the judgments and decrees of the two courts below – appellate decree dated 5.2.1990 and trial court's decree dated 22.8.1988 and directed the trial court to 2 frame issues according to the plaint allegations and thereafter give opportunity to both the parties of leading evidence and decide the suit afresh. Brief facts of the case are the plaintiffs in their plant stated that the petitioners and even their predecessors were in possession of the land of khasras no.196 to 1999 and 558 total measuring 7 bighas 1 biswas (new khasras no.644, 668, 669, 918, 919, 920, 921 and 922 measuring 5 bighas 14 biswas). The respondents no.1 to 3 and their predecessor in title Lal Singh and Manohar Kanwar tried to get possession from the petitioners of the land in dispute by way of filing several proceedings and in that process, they filed suit no.40/1952 in the Court of Munsif, Nathdwara which was dismissed on 5.7.1952. Thereafter, again the suit was filed by late Shiv Singh against Dharam Singh and others in the Court of Assistant Collector, Udaipur being Revenue Suit No.22/1972 which suit was also dismissed. Thereafter, the suit for possession was filed by late Lal Singh s/o Shiv Singh and Manohar Bai w/o Shiv Singh against the predecessor in title of the present petitioners named as Bhanwarlal, Dharam Singh, Har Singh all sons of Chiman Lal, Bhanwari Bai and Raji Bai both daughters of Chiman Lal regarding the same land for eviction under Section 183 of the Rajasthan Tenancy Act. This suit was registered as Revenue Suit 3 No.115/1977. Said suit was also dismissed on the ground that the defendants (who are plaintiffs in the subsequently filed suit) were in possession of the property in question since last more than 12 years and as per the provisions of Section 63(1)(iv) of the Rajasthan Tenancy Act, the defendants in that suit and plaintiffs in the present suit acquired the title for the land in question as the title of the plaintiffs in that suit had extinguished under the above provision of Section 63(1)(iv) of the Rajasthan Tenancy Act. In view of the above reasons, the plaintiffs' case in the present suit is that they became khatedar tenants but since their names were not entered into revenue record, they filed the suit for declaration in the Court of Assistant Collector, Nathdwara. In the suit, the issue was framed by the trial court that whether the plaintiffs are in possession of the suit property since last 50 years. In the trial court, the plaintiff gave his own statement as PW1 and produced witness PW2 Govind Singh, PW3 Vardi Chand and also produced documentary evidence which includes the orders passed in various litigations. Learned Assistant Collector, Nathdwara vide judgment and decree dated 22.8.1988, after taking into consideration the decision given in the earlier litigation between the parties, held that the plaintiffs proved their possession over the land in dispute for last 50 years and the 4 defendants lost litigation on earlier occasions and in view of the above reasons, the khatedari rights of the defendants extinguished and the plaintiffs became khatedar tenant by adverse possession. The defendants preferred appeal which was dismissed by the Revenue Appellate Authority vide judgment and decree dated 5.2.1990. However, the Board of Revenue vide judgment dated 24.11.1995 reversed the judgments and decrees of the trial court and the appellate court merely on the ground of non-framing of the issues. It appears from the facts on record that in the trial court, the pleadings of the plaintiffs were before the defendants and they submitted the written statement contesting the claim of the plaintiffs. Though one issue only was framed by the trial court but both the parties without any objection proceeded for trial of the suit. In the trial court, both the parties led the evidence and the plaintiffs proved the documents on the basis of which they claimed their right over the land in dispute. The trial court as well as the appellate court both considered the evidence – oral as well as documentary evidence and thereafter reached to the conclusion that the plaintiffs proved their claim of hostile title against the defendants and their possession is since last more than 50 years. The 5 defendants initiated several proceedings to take possession from the plaintiffs but they failed in all those proceedings. It is settled law that when the parties were fully aware of the facts of the case and they proceeded for trial on the basis of allegations and rebuttal and led evidence, then the decree cannot be set aside merely on the ground of non-framing of the issue. The decree on the ground of non-framing of the issue can be set aside only when it is shown that the prejudice has been caused to the party aggrieved against the decree. It appears that in the present case, there was no grievance of any of the party about the non-framing of the issue. It may be true that more issues could have been framed by the trial court but in the facts of this case, it is clear that the plaintiffs' case before the trial court was that the defendants lost several rounds of litigation which dis-entitled the defendants from taking possession from the plaintiffs. Then in that situation, every material was before even the appellate court if the appellate court was of the view that the evidence already available on the record required to be considered in the light of the issues which should have been framed by the trial court, then the appellate 6 court could have framed the issue and could have decided the appeal after framing of the issue because of availability of all the evidence and all the material on record before the second appellate court. However, the scope in second appeal is limited one. The appellate court in this situation committed serious error of law in reversing the judgment and decree of the court below which was passed after taking into account the earlier decisions given in the suits decided as back as in the year 1952 and thereafter, the Board of Revenue ignored this important material fact that the defendants lost the litigation several times and the plaintiffs thereafter filed the suit for declaration of right, title and interest so as to make the revenue record in consonance with the fact of actual physical possession and in view of the fact that the defendants cannot take possession of the property from the plaintiffs, therefore, merely on the ground of non-framing of the issue, the Board of Revenue could not have reversed the finding of two courts to reopen the dispute between the parties which in fact ended in the year 1952. The Board of Revenue has failed to give any reason to interfere in second appellate jurisdiction in the matter of concurrent finding of fact of possession of the plaintiffs since last 50 years and their claim of adverse possession. In fact, 7 the appeal should have been dismissed by the board of Revenue itself. In view of the above reasons, this writ petition deserves to be allowed, hence, allowed, the judgment of the Board of Revenue dated 24.11.1995 is quashed and set aside and the second appeal of the respondents before the Board of Revenue stands dismissed. (PRAKASH TATIA), J. S.Phophaliya