D.B. Civil SpecialAppeal(Writ) No.1226/2000 Pat Ram & ors. vs. The Board of Revenue & ors. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Pat Ram & ors. vs. The Board of Revenue & ors. D.B.Civil Special Appeal No.1226/2000 under Section 18 of the Rajasthan High Court Ordinance, 1949 repealed w.e.f. 29.8.2001 (now repealed and appeal is under Rule 134 of the Rajasthan High Court Rules, 1952) against the judgment dated 8.11.2000 passed by the learned Single Judge in S.B.Civil Writ Petition No.3985/2000. Date of Judgment:- December 8th,2009. PRESENT HON'BLE THE CHIEF JUSTICE MR. JAGDISH BHALLA HON'BLE MR.JUSTICE PRAKASH TATIA Mr. J.R. Beniwal for the appellants. Mr. S.N. Trivedi ) Mr. Hemant Choudhary), for the respondents. BY THE COURT ( Per Hon'ble Mr. Tatia,J.): The writ petitioners' suit for declaration of Khatedari right for the agricultural land, referred in the suit, was dismissed by the trial court, holding it as barred by principle of res judicata under Section 11 of the Code of Civil Procedure, vide judgment and decree dated 21.5.1999. The writ petitioners' appeal against the said order was dismissed by the Revenue Appellate Authority, Hanumangarh vide order dated 23.6.2000 and second appeal too was dismissed by the Board of Revenue vide order dated 12.9.2000. D.B. Civil SpecialAppeal(Writ) No.1226/2000 Pat Ram & ors. vs. The Board of Revenue & ors. 2 Then the petitioners have preferred S.B.Civil Writ Petition No. 3985/2000 which was dismissed in limine by the learned Single Judge vide impugned order dated 8.11.2000. Hence this special appeal. The facts which are not in dispute are that petitioners' predecessor Rati Ram submitted an application before the Sub- Divisional Officer, Nohar alleging that the land in dispute was allotted to him by the Assistant Collector by the order 20.10.1951 for the reason that he was kotwal of the village. However, this fact was disputed by respondents' predecessor Ishar and Rati Ram's application was rejected by the Sub-Divisional Officer by order dated 8.7.1968 and the appeal against that order was dismissed by the Revenue Appellate Authority on 22.7.1969. Then the matter came before the Board of Revenue, Ajmer in revision and that revision petition was allowed by the Board of Revenue vide order dated 6.10.1971 and the matter was remanded to the Sub- Divisional Officer after setting aside orders dated 22.7.1969 and 8.7.1968. The Board of Revenue directed the Sub-Divisional Officer to examine the relevant record of the Colonisation Department and thereafter to pass proper order after hearing both the parties. After remand, the Sub-Divisional Officer passed the order dated 15.9.1980 and again rejected the application of the petitioner- applicant Rati Ram and maintained the order dated 8.7.1968. Then again appeal was preferred to challenge the order dated 15.9.1980 D.B. Civil SpecialAppeal(Writ) No.1226/2000 Pat Ram & ors. vs. The Board of Revenue & ors. 3 of the Sub-Divisional Officer before the Revenue Appellant Authority which was dismissed vide order dated 13.4.1991 and then revision was preferred before the Board of Revenue by the successors of deceased Rati Ram, which too was dismissed by order dated 12.3.1997. On the basis of these proceedings initiated on the application filed by deceased Rati Ram, the defendants- respondents in the regular suit, pleaded that the suit filed by the appellants-plaintiffs is barred by principle of res judicata. The legal question which was raised before all the courts below and which was rejected, was the question that whether the earlier proceeding initiated by way of application and order passed in that proceeding since attained finality, therefore, whether the suit of the plaintiffs is barred by principle of res judicata? It is not in dispute that the earlier round of proceedings were not in a regularly instituted suit and that was the proceeding initiated on the application, which according to the learned counsel for the parties, was submitted under Section 193 of the Rajathan Tenancy Act, 1955, which provides grant of khatedari tenancy right to village servant. Section 193 of the Act of 1955 is as under:- “193. Disposal of land when services are no longer required- If the Collector declares that the services rendered by a village servant are no longer required such village servant shall become a “khatedar tenant” of his village service grant and shall be liable to D.B. Civil SpecialAppeal(Writ) No.1226/2000 Pat Ram & ors. vs. The Board of Revenue & ors. 4 pay rent accordingly.” The appellants-plaintiffs' present suit was filed under Sections 88 and 188 of the Act of 1955. The suit under Section 88 is a regular suit for revenue land seeking declaration of Khatedari tenancy right and relief of injunction can be claimed under Section 188 of the Act of 1955. It is clear from Section 193 of the Act of 1955 that this empowers the Collector to declare that the services rendered by a village servant are no longer required and upon such declaration, a village servant becomes a khatadar tenant of the village service grant. The Section 193 of the Act of 1955 has its own limited scope, whereas under Section 88 of the Rajasthan Tenancy Act, the scope is wide and the Katedari tenancy right can be declared by the court in such regularly instituted suit. There is no substitute of it. The applicant under Section 193 originally may not have any adversary and if one claims right of accrual of khatedari tenancy right under Section 193 by virtue of declaration made by the Collector under Section 193, then the other party may appeal and also prefer revision if not satisfied with the order of the appellate authority. The accrual of khatedari tenancy right under the Rajasthan Tenancy Act is not limited as under Section 193 and can accrue under various other provisions made under the Act of 1955. The evidence in two sets of proceedings may be entirely different, as there may be different facts for claiming D.B. Civil SpecialAppeal(Writ) No.1226/2000 Pat Ram & ors. vs. The Board of Revenue & ors. 5 relief in two sets of proceedings. The courts below, without examining this aspect of the matter, merely on the ground that there was earlier round of litigation between the parties and earlier orders passed in summary proceeding, attained the finality, dismissed the suit of the plaintiffs holding it to be barred by principle of res judicate. Section 11 of the Code of Civil Procedure clearly provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. The plaintiffs, in the present suit, claimed that their predecessor Rati Ram was also Kotwal and, after his death, the plaintiffs continued as Kotwal and since old times, the land was given to plaintiff's ancestors as 'maphi' land and they were cultivating the land. In the instant case, as per the plain reading of the plaint, the plaintiffs' case is not based only on acquiring their right by virtue of Section 193 of the Rajasthan Tenancy Act but they are claiming the tenancy right over the land in dispute on the basis of old grant of land as maphi land and on the basis of their cultivation on the land since the time of their ancestors. In view of the above reasons, the issue whether the plaintiffs were in possession of the land in dispute as maphidar or acquired khatedari tenancy right under other provisions of the Rajasthan Tenancy Act, 1955 from the time of their ancestors, was not the D.B. Civil SpecialAppeal(Writ) No.1226/2000 Pat Ram & ors. vs. The Board of Revenue & ors. 6 issue in earlier round of litigation. Further, the trial court dismissed the suit of the plaintiffs under Section 11 of the Code of Civil Procedure on the application submitted by the defendants, whereas the trial court should have framed the issue and if the issue of res judicata would have been a pure question of law, then it could have been decided as preliminary issue. In the facts of the case, the issue as has been raised by the respondents, is not the issue of pure question of law, but looking to the claim of the plaintiffs, is a mixed question of fact and law, therefore, also, the trial court could not have dismissed the suit of the plaintiffs mere on the application. In view of the above reasons, the appeal deserves to be allowed and hence allowed. The orders passed by the learned Single Judge dated 8.11.2000, Board of Revenue dated 12.9.2000, the Revenue Appellate Authority dated 23.6.2000 and the Sub- Divisional Officer dated 21.5.1999 are quashed and set aside. The trial court may proceed to decide the suit expeditiously as the dispute is old one. No order as to costs. (PRAKASH TATIA),J (JAGDISH BHALLA),CJ. Mlt.