L.RS. OF LATE SHRI JYAN MOHAMMED VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2389/97) 1 L.RS. OF LATE SHRI JYAN MOHAMMED VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2389/97) Dated:- 23rd April,2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr. K.S.Gill, for the petitioner. None present for the respondents. 1. This writ petition is directed against order dated 19.2.97 passed by the Board of Revenue, Rajasthan, whereby an appeal preferred by the respondent no.5 Smt. Dhapi against the judgment and decree dated 5.8.92 of the Revenue Appellate Authority( in short “RAA”), Bikaner affirming the judgment and decree dated 1.2.88 passed by the Sub Divisional Officer( in short “SDO”), Ratangarh in favour of the petitioner has been allowed and accordingly, the judgment and decree passed in favour of the petitioner by the SDO, Ratangarh, stands reversed. 2. The relevant facts in nutshell are that the petitioner Jyan Mohammed was allotted agriculture land ad measuring 11 bighas 2 biswas comprising khasra No. 502 situated at village Rohi, Tehsil Sri Dungargarh as “landless person” under the Rajasthan Allotment of Land for Agriculture Purposes Rules 1957 in the year 1962 for cultivation for a period of one year. The same land was again allotted for a period of three years in the year 1963. However, later under the government orders dated 12.3.68 and L.RS. OF LATE SHRI JYAN MOHAMMED VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2389/97) 2 31.7.68, the allotments made in favour of the persons like the petitioners were treated to be allotment made for a period of ten years. According to the petitioner after the second allotment in the year 1963 , he remained in continuous possession of the land in question. On 14.8.84, the petitioner applied before the Tehsildar to enter his name in the revenue record as khatedar tenant but, the same was declined. In these circumstances, the petitioner preferred a revenue suit against the State of Rajasthan for declaring him khatedar tenant of the land and for permanent injunction to the effect that he may not be dispossessed from the disputed land. 3. In the written statement filed on behalf of the State Government , it was stated that the land was allotted to the petitioner for cultivation only for a period of one year and in the year 1963 further allotment was made for a period of three years however, the petitioner neither cultivated the land in question nor the same was in his possession. 4. The learned trial court framed the issues and the evidence of plaintiff was recorded. After consideration of the evidence on record, the learned trial court arrived at the finding that since the petitioner is in continuous possession of the land and cultivating the same for a period more than 23 years therefore, he is entitled to be declared khatedar tenant. Accordingly, the L.RS. OF LATE SHRI JYAN MOHAMMED VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2389/97) 3 decree was passed by the learned trial court in favour of the petitioner declaring him khatedar tenant of the land and restraining the State Government by way of permanent injunction from dispossessing him from the disputed land . 5. Aggrieved by the judgment and decree dated 1.2.88 passed by the learned trial court , the respondent no. 5 preferred an appeal before the RAA , Bikaner . The appeal was dismissed by the RAA vide judgment dated 5.8.92 inter alia on the ground that the respondent no.5 , appellant therein, was not an aggrieved person and had no locus standi to maintain the appeal. 6. On further appeal, an objection was raised on behalf of the petitioner before the Board of Revenue that the appeal preferred by the respondent no. 5 is not maintainable. The matter regarding maintainability of the appeal was considered by the Board of Revenue. On being prima facie satisfied that the impugned judgment and decree passed by the trial court is not sustainable in eye of law, the Board of Revenue vide order dated 14.7.94 directed that the matter may be registered under the provisions of Section 221 of the Rajasthan Tenancy Act, 1955 and notices may be issued to the parties concerned as to why the judgment and decree dated 1.2.88 passed by the SDO, Ratangarh may not be set aside. L.RS. OF LATE SHRI JYAN MOHAMMED VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2389/97) 4 7. After due consideration, the judgment and decree dated 5.8.92 passed by the RAA , Bikaner and judgment and decree dated 1.2.88 passed by the SDO, Ratangarh have been set aside by the Board of Revenue by the order dated 19.2.97 which is impugned in this writ petition. 8. It is contended by the learned counsel for the petitioner that the Board of Revenue could not have converted the appeal preferred by the respondent no. 5 into proceedings u/s 221 of the Act of 1955. The learned counsel submitted that indisputably, the petitioner was in possession of the land in question for more than ten years therefore, he was entitled to be declared khatedar of the land. It is submitted by the learned counsel that the finding arrived at by the Board of Revenue that the petitioner cannot be said to be “landless person” is contrary to record and perverse. The learned counsel submitted that the allotment made in favour of the petitioner in the year 1963 cannot be cancelled at such a belated stage after a lapse of about more than 45 years. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of “Brij Lal vs. Board of Revenue “ , AIR 1994 S.C., 1128 and a Bench decision of this Court in the matter of “Naga Ram & Anr. vs. State of Rajasthan & Ors.”, 2001 RRD, 206. 9. I have considered the submissions of the learned counsel L.RS. OF LATE SHRI JYAN MOHAMMED VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2389/97) 5 for the petitioner and perused the material on record. 10. A perusal of the order impugned reveals that after due consideration of the material on record,the Board of Revenue found that on an application being preferred by one Shri Tola Ram vide an order dated 15.7.78, the Tehsildar, Dungargarh ordered for removal of unauthorised possession of the petitioner over the land in question which falls in periphery area of municipality. It is also not in dispute that vide yet another order dated 28.9.85 passed in case No. 284/85 “State vs. Jyan Mohammed”, by the concerned SDO it was held that the allotment of the land made in favour of the petitioner cannot be regularised inasmuch as, the land is situated in periphery area of the municipality. The Board of Revenue found that these two orders passed by the competent authorities were not challenged by the petitioner by taking appropriate proceedings therefore, the same has attained finality. The Board of Revenue has further observed that the suit was filed by the petitioner before the SDO , Ratangarh after obtaining the certified copies of the aforesaid orders but, in the plaint filed , these facts were not indicated that the regularisation of the possession over the land in his favour has already been declined . That apart, on perusal of the order sheets of the suit, the Board of Revenue found that either the order sheet drawn are not correct or the petitioner L.RS. OF LATE SHRI JYAN MOHAMMED VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2389/97) 6 was accommodated as there is no cross examination of the witnesses. Considering the question of limitation raised on behalf of the petitioner, the Board of Revenue held that the limitation starts from the date of the knowledge and where the decree is obtained by fraud etc. then in that event even in collateral proceedings the validity of the decree can be challenged. Accordingly, the Board of Revenue held that the decree obtained by the petitioner concealing the material facts is not sustainable in eye of law and he is not entitled for get the land alloted in his favour. 11. A perusal of Section 221 of the Act of 1955 reveals that general superintendence and control over all revenue courts is vested in the Board of Revenue. In considered opinion of this court, this section gives ample power to the Board of Revenue to set aside the judgment and decree or orders of the subordinate courts where manifest breach of law comes to the notice of the Board or where the judgment and decree or orders are found to have been obtained by concealment, suppression or misrepresentation of facts or by committing fraud. It is true that the power conferred upon the Board under the said section should be exercised sparingly in the exceptional circumstances where the patent illegality or clear violation of a law has been committed. But then, in the instant case, it is apparent that the L.RS. OF LATE SHRI JYAN MOHAMMED VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2389/97) 7 judgment and decree was obtained by the petitioner by concealment and suppression of material facts inasmuch as, the question with regard to his entitlement for regularisation of his allotment had already been concluded by the court of competent jurisdiction and the order has attained finality. In this view of the matter, in considered opinion of this court, the discretion exercised by the Board of Revenue in setting aside the judgment and decree invoking its power of general superintendence and control u/s 221 of the Act of 1955 cannot be faulted with. 12. At this stage, it will be appropriate to refer the decisions of the Hon'ble Supreme Court and this court relied upon by the learned counsel for the petitioner . 13. In Brij Lal's case (supra), while considering the matter of rejection of permanent allotment on the ground that the allottee was minor on the date of temporary allotment, in absence of any evidence that the allottee made misrepresentation regarding his age, the court observed that it would be travesty of justice to dispossess the allottee from the land which he is nourishing for over a period of two decades. 14. In Naga Ram's case (supra), on the similar facts and circumstances of the case, the relief was extended to the appellant therein by a Bench of this court relying upon the aforesaid decision of the Hon'ble Supreme Court in Brij Lal's case L.RS. OF LATE SHRI JYAN MOHAMMED VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 2389/97) 8 (supra). 15. It is to be noticed that in the instant case, the Board has arrived at a categorical finding that the petitioner has obtained the judgment and decree by concealing the material facts and as a matter of fact, he is not entitled for any allotment under the relevant allotment Rules. That apart, the issue with regard to petitioner's entitlement for regularisation of allotment in his favour had already been decided by the competent court and the said order has admittedly attained the finality and the same was not open to be agitated by filing a fresh suit. Thus, the ratio of the decisions relied upon by the learned counsel for the petitioner does not help the petitioner in any manner whatsoever. 16. For the aforementioned reasons, this court is of the considered opinion that the order impugned passed by the Board of Revenue does not suffer from any such error warranting interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 17. In the result, the writ petition fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. Aditya/-