1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.1206/1996 (Manoj & Ors. Vs. State of Raj. & Ors.) Date of order : 26.3.2009 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. J.L. Purohit, for the petitioners. Mr. Hemant Choudhary, Govt. Counsel. The petitioners - legal heirs of late Shri Bhera Ram are challenging the judgment dated 21.12.1995 Annexure-13 and prayed that by appropriate order or direction respondents may be restrained from interfering in the cultivatory possession of the petitioners over the land in question. According to the brief facts of the case, a suit was filed by the respondent No.4 Hanuman Prasad as well as by late Bhera Ram. The said suit was filed in the Court Sub Divisional Officer, Rajgarh Churu and the said suit was decreed in favor of Hanuman Prasad and late Bhera Ram vide judgment dated 30.3.1990 by the S.D.O. Rajgarh on the basis of khata No.242 recorded under the orders of Settlement Commissioner dated 20.6.1942 and as per direction Hanuman Prasad – 2 respondent No.4 and late Bhera Ram were declared Khatedar of the agricultural land situated in Khata No.242 measuring 6 bighas and 7 biswa (new Khasra No.1065 measuring 3 bighas and 16 biswa) at Rajgarh District Churu. The S.D.O. passed permanent injunction against the State officials not to interfere in the peaceful possession over the land in question of Hanuman Prasad and Bhera Ram. Against the said judgment and decree dated 30.3.1990, an appeal was preferred by Tehsildar before Revenue Appellate Authority but the said appeal was dismissed on the ground that along with appeal the certified copy of the judgment was not filed. Meaning thereby the appeal was dismissed without any adjudication. After dismissal of the appeal dated 29.10.1993, the Collector issued a notice for reference to the Hanuman Prasad and Bhera Ram and after following the procedure, the reference was made by the District Collector, Churu on 28.9.1995 to the Board of Revenue and the Board of Revenue while exercising the power of reference under Section 232 of the Rajasthan Tenancy Act, 1955 set aside the judgmdent and decree dated 30.3.1990 passed by S.D.O., Rajgarh District Churu in revenue Suit No.66/89. The petitioners who are legal heirs of late Bhera Ram are challenging the validity of the judgment dated 21.12.1995 passed by Board of Revenue mostly on 3 two grounds; first that the reference made by District Collector was incompetent because no subordinate authority can make reference after the judgment of higher authority in appeal and in this case, according to learned counsel for the petitioners, the appeal filed by State was dismissed by Revenue Appellate Authority, therefore, the judgment passed by S.D.O. merged into the order of appeal passed by Revenue Appellate Authority dated 29.10.1993; second, the land in question was illegally entered as 'gochar' land because no formal order was passed by any competent authority for entering the land in question as gochar land and in absence of any order by the competent authority, no land can be entered as gochar land in the revenue record. It is argued by learned counsel for the petitioners that petitioners were having title over the land which is Annexure-1 and on that basis they were in possession of the land and there is no documentary evidence to show that the land in question was rightly entered as gochar land in revenue record, therefore, judgment of S.D.O., Rajgarh was perfectly in accordance with law. It is also argued that S.D.O. has passed decree on 30.3.1990 whereas reference has been made in the year 1995 by the District Collector which is after delay of four years. Therefore on this ground also the judgment of Board of Revenue passed upon reference made by Collector, Churu while exercising the power under Section 232 of the Act of 1955 is illegal and deserves to be quashed and set 4 aside. Learned counsel for the petitioners has invited the attention of this Court towards the judgment reported in RLR 1995 (1) P.555 (Anandi Lal Vs. State of Raj. & ors.) and judgment of this Court reported in 2007 (2) RRT 1449 (Gopal Ram & Ors. Vs. Shanker Lal & Ors.) wherein the Coordinate Bench of this Court has held that revenue entries do not create or give any right, title or interest unless entries are based on lawful order passed by competent authority. In para No.24 of the judgment rendered in case of Anandilal (supra), it has been held by Hon'ble Division Bench of this Court (at Jaipur Bench) that power under Section 82 of the Act of 1956 and under Section 232 of the Act of 1955 cannot be exercised after a period of one year. For the ground of merger of the order of S.D.O., Rajgarh in the order of Revenue Appellate Authority, learned counsel for the petitioners has invited the attention of this Court towards the judgment reported in AIR 1958 SC 868 (Commissioner of Income-Tax, Bombay Vs. M/s. Amritlal Bhogilal & Co.) in which it has been held that as a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is 5 operative and capable of enforcement. While citing the above judgments, it is vehemently argued by learned counsel for the petitioners that first of all the reference was made by the District Collector knowingly well that appeal filed by the State before the Revenue Appellate Authority against the judgment passed in suit by the S.D.O. was dismissed and the District Collector is subordinate authority to revenue appellate authority, therefore, after the judgment in appeal filed by the State, there was no jurisdiction left with the District Collector to make reference to the Board of Revenue against the judgment and decree passed by S.D.O. It is also argued that in view of the judgment of Anandi Lal's case (supra) though the limitation is not provided under the statutes for exercising power of reference but reference cannot be made after expiry of one year, if decree or judgment is not obtained by fraud. Here in this case, there is no allegation that the judgment of S.D.O. was passed upon fraud or any mis-statement of fact. Therefore, it is prayed that the judgment rendered by Board of Revenue in the reference deserves to be quashed. In reply to the writ petition, it is pointed out on behalf of State that the Board of Revenue has not committed any wrong while accepting the reference so made by District Collector for the land in 6 question. As a matter of fact, there is no proof submitted by the petitioners before revenue appellate authority at the time of settlement so also, it is stated that the settlement took place as early as in the year 1961 and petitioners are claiming their title on the basis of Khata No.242 Annexure-1 of the year 1942 and suit was filed in the year 1990 on the basis of Khata, which is after about 47 years before that settlement was made and land was entered as 'gochar' land but no proceedings were undertaken by late Bhera Ram to get the land corrected from gochar to that of khatedari of the petitioners. It is also submitted that Hanuman Prasad has not challenged the order passed by Board of Revenue and this petition has been filed by legal heirs of late Bhera Ram through next friend Mahesh Kumar. Meaning thereby out of two parties; one party respondent of the reference has not chosen to challenge the order passed by Board of Revenue. Therefore, this writ petition deserves to be dismissed on this ground. Further, it is argued that the contention of the petitioner cannot be accepted that after dismissal of appeal by Revenue Appellate Authority, there was no jurisdiction left with the District Collector to make a reference because the appeal was not decided on merit but was dismissed on the ground that the certified copy of the decree was not filed along with the appeal. The contention of learned counsel for the petitioners that the judgment and decree passed by S.D.O. has become final because 7 appeal was dismissed by the revenue appellate authority is not correct. It is also wrong to say that the reference was made after period of four years from the date of the order of S.D.O. In fact, the S.D.O. passed the judgment and decree dated 30.3.1990 and against that judgment, an appeal was preferred and the said appeal was dismissed on 29.10.1993 and reference proceedings were initiated vide case No.29/1994. This fact shows that almost within an year, the reference proceedings were initiated and opportunity of hearing was given to the petitioners, who submitted their reply through Hanuman Prasad on 27.4.1995. Therefore, the plea of delay is also totally baseless. It is further submitted in the reply that Section 16 of the Rajasthan Tenancy Act, 1955 specifically prohibits allotment of khatedari rights in pasture land. Thus, the judgment rendered by Board of Revenue upon the fact that the land in question is pasture land, therefore, no interference is required and reference has already been allowed by Board of Revenue, which does not require any interference under Article 227 of the Constitution of India. I have considered the rival submission made by the parties and gone through the impugned judgment passed by Board of Revenue. First of all, I agree with the finding of 8 Board of Revenue that the dismissal of appeal on the ground of non filing of certified copy of the decree cannot be treated to be final adjudication by the appellate authority. More so, the order passed by S.D.O. cannot be treated to be a merger in the order of appellate authority. The finding of Board of Revenue is based upon the judgment reported in AIR 1952 Bombay 165. Further, the Board of Revenue has accepted the reference and set aside the judgment and decree while considering all aspects of the matter and gave cogent reasons for the same. Therefore, upon finding given by Board of Revenue, no interference is required under Article 227 of the Constitution of India. With regard to ground of delay, it is obviously clear from the facts that the appeal was dismissed by the Revenue Appellate Authority on 29.10.1993 and in the year 1994, the District Collector initiated the proceedings for reference, which is within one year, therefore, the adjudication made in case of Anandi Lal (supra) does not apply to this case. In this case, the contention of learned counsel for the petitioners cannot be accepted that the judgment and decree passed by S.D.O., Rajgarh was passed on material evidence. I have perused the judgment of S.D.O., Rajgarh dated 30.3.1990. Upon perusal of the said judgment, it is abundantly clear that the said judgment was passed upon the fact that 9 no documentary evidence was filed by the Govt. pleader and in absence of that the said S.D.O. decreed the suit in favor of the petitioners when this fact came to the knowledge of the Tehsildar, then it was felt necessary to make reference because the land in question was gochar land and the documentary evidence was not produced from the Government side before the S.D.O. to show that the land in question is pasture land, therefore, admittedly the said suit was decreed in favor of Hanuman Prasad and Bhera Ram in absence of any documentary evidence. Therefore, such type of judgment and decree passed by S.D.O., Rajgarh cannot be treated to be a judgment upon material evidence, therefore, the District Collector has rightly made reference to the Board of Revenue and Board of Revenue has rightly set aside the judgment and decree passed by S.D.O., Rajgarh in suit No.66/89 filed under Sections 88 and 188 of the Rajasthan Tenancy Act for declaration. In this view of the matter, there is no force in this writ petition. Hence, the writ petition is dismissed with cost. (GOPAL KRISHAN VYAS), J. arun