// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. S.B. Civil Writ Petition No.2036/2008 Rajasthan State Industrial Development & Investment Corporation Limited, Jaipur through its Senior Regional Manager Versus Board of Revenue, Rajasthan, Ajmer and Others AND 2. S.B. Civil Writ Petition No.2035/2008 Rajasthan State Industrial Development & Investment Corporation Limited, Jaipur through its Senior Regional Manager Versus Board of Revenue, Rajasthan, Ajmer and Others Date of Order ::: 29th September, 2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Ajeet Bhandari, Counsel for petitioner RIICO Shri S.M. Mehta, Senior Advocate, with Shri Dinesh Yadav, Counsel for respondents – Kanhaiyalal and Hazarilal, in both the writ petitions #### //Reportable// By the Court:- Though the subject matter of both the writ petitions is different, yet the land in question and parties to the proceedings are similar, therefore, on the request of learned counsel for both the parties, both the writ petitions were heard together and are being disposed of finally by this common order. // 2 // CW No.2035/2008 Briefly stated the facts of the case are that a Revenue Suit No.252/1985 was filed by the plaintiff-respondents, namely, Kanhaiyalal, Hazarilal and Smt. Meera Devi under Sections 88 and 89 of the Rajasthan Tenancy Act, in the Court of Assistant Collector & Magistrate, Jaipur (for short, 'the ACM') for declaration to the effect that the total area of agriculture land, bearing Khasra Nos.203 and 204, situated in Village Jhalana-Chaur, Tehsil Sanganer, District Jaipur, was 22 bigha 8 biswa, as the total area of the land has wrongly been entered as 19 bigha 4 biswa in stead of 22 bigha 8 biswa in the last settlement took place in Samvat Year 2015 (corresponding Year 1958), and, as such, the remaining land measuring 3 bigha 4 biswa could not be recorded in their names, therefore, it be declared that the plaintiffs are khatedar- tenants of the remaining land measuring 3 bigha 4 biswa of Khasra No.203 and 204. In support of their case, the plaintiffs placed on the record a copy of 'jamabandi', 'khasra-girdawari', 'purcha-settlement','settlement-slip','receipt- lagaan' and 'statement-of-Patwari-Halka Durga' dated 15th April, 1958. The summons were issued to the // 3 // defendants and, in response thereto, the defendant State Government filed its written statement through Tehsildar, Sanganer, on 3rd/7th February, 1986, wherein it was admitted that total area of the land of Khasra Nos.203 and 204 was 22 bigha 8 biswa. The issues were framed on 26th February, 1986. The plaintiffs examined PW-1 Hazarilal and PW-2. No evidence was led on behalf of the defendants. The ACM (trainee), Jaipur, vide its judgment dated 21st June, 1986, dismissed the suit. Being aggrieved with the same, an appeal was preferred by the plaintiffs, which was allowed by the Revenue Appellate Authority, Jaipur, vide its judgment dated 2nd August, 1986 and the order of the ACM was set-aside and it was declared that the plaintiffs are khatedar- tenants of the land bearing Khasra No.203 and 204 measuring 22 bigha 8 biswa. It was also declared that the plaintiffs No.1 and 2 are equal share-holders of the land measuring 19 bigha 4 biswa and, in remaining land, the plaintiffs No.1 and 2 will have equal in half share and the plaintiff No.3 Mst. Meera Devi will have half share. Being aggrieved with the aforesaid judgment, the State of Rajasthan preferred second appeal before the Revenue // 4 // Board but the same was also dismissed vide judgment dated 14th December, 1993. Although, the suit of the plaintiffs for declaration had been decreed by the Revenue Appellate Authority and thereafter by the Revenue Board vide judgment dated 2nd August, 1986 and 14th December, 1993, respectively, as referred above, but there was some error in comparative chart of old and new khasra numbers, therefore, the plaintiff-respondents Kanhaiyalal, Hazarilal and Smt. Meera Devi filed an application in the Court of SDO, II, Jaipur, under Section 136 of the Rajasthan Land Revenue Act for correction in the revenue record to the extent that in respect of the present Khasra No.291 measuring 0.81 hectare the old Khasra Nos.203 and 204 may be mentioned. The non-applicant No.4 RIICO/petitioner contested the said application by filing written reply dated 6th August, 2001. The non-applicant No.2 State of Rajasthan also filed written-reply dated 30th January, 2002. The learned SDO vide its judgment dated 2nd November, 2004 allowed the application and passed an order that the present Khasra No.291 measuring 0.81 hectare is part of old Khasra No.203 and 204. Being aggrieved with the same, the non-applicant No.4 RIICO filed an appeal // 5 // before the Divisional Commissioner, Jaipur, which was dismissed vide judgment dated 26th June, 2006. Thereafter the RIICO again preferred second appeal before the Revenue Board, which was also dismissed vide order dated 24th July, 2007. Being aggrieved with the aforesaid three orders dated 24.07.2007, 26.06.2006 and 02.11.2004, the petitioner RIICO has preferred Writ Petition No.2035/2008, wherein, in addition to aforesaid orders, the petitioner has also challenged the earlier orders dated 14.12.1993 passed by the Revenue Board and the order dated 02.08.1986 passed by the Revenue Appellate Authority. CW No.2036/2008 The plaintiffs Kanhaiyalal, Hazarilal and Smt. Meera Devi, filed another suit on 5th June, 1987 for permanent injunction under Section 188 of the Rajasthan Tenancy Act against the Rajasthan State Industrial Development & Investment Corporation Limited and the State of Rajasthan, in the Court of ACM, Chaksu, Camp at Sanganer, praying therein that the suit of the plaintiffs be decreed and the defendant No.1 RIICO be restrained by way of permanent injunction not to interfere in the peaceful possession of the plaintiffs over the land bearing Khasra No.203 and 204 measuring 3 // 6 // bigha 4 biswa situated in village Jhalana- Chaur, Tehsil Sanganer, and further the plaintiffs may not be dispossessed from the same. It was pleaded in the plaint that the total area of the land bearing Khasra Nos.203 and 204 was 22 bigha and 8 biswa but, in last settlement, the total area thereof was wrongly reduced/written as 19 bigha 4 biswa instead of 22 bigha 8 biswa, whereas the plaintiffs were in possession of the total land measuring 22 bigha 8 biswa. The plaintiffs filed a suit for declaration and permanent injunction against the State Government, which was initially dismissed by the ACM but the same has now been decreed by the Revenue Appellate Authority vide its judgment dated 2nd August, 1986 and it has been declared that the total area of Khasra No.203 and 204 was 22 bigha 8 biswa and, in pursuance thereof, mutation entry No.2 has been opened on 28th May, 1987 by the Assistant Land Settlement Officer, Jaipur. The defendant No.1 RIICO filed its written statement. The defendant No.2 the State of Rajasthan also filed its separate written statement wherein again this fact was admitted that the total area of the land bearing Khasra No.203 and 204 was 22 bigha 8 biswa. The said suit was decreed by the ACM, // 7 // Chaksu vide judgment dated 7th January, 1989. Being aggrieved with the same, an appeal was preferred by the RIICO before the Revenue Appellate Authority but the same was dismissed vide judgment dated 12th June, 1990. Thereafter the RIICO preferred second appeal before the Revenue Board, Rajasthan, Ajmer. During the pendency of that second appeal, the defendant RIICO filed an application under Order 6 Rule 17 read with Section 151 CPC for amendment in the written statement which was allowed by the Revenue Board at the costs of Rs.5,000/- (Rupees five thousand only). The amended written statement was placed on the record. The time was sought to file rejoinder which was allowed but the rejoinder could not be filed. However, both the parties agreed before the Revenue Board that since the written statement has been filed the further proceedings will take place in the trial court i.e. the ACM Chaksu in the case, so it was prayed that the case be remanded back to the said court with a direction to grant an opportunity to the plaintiffs to file rejoinder and thereafter to decide the case after framing necessary issues and allowing the parties to lead their evidence in the case. Consequently, the Revenue Board, vide its judgment dated 10th June, 1997, allowed // 8 // the second appeal of the RIICO, in part. The judgments dated 12th June, 1990 passed by the Revenue Appellate Authority and dated 7th January, 1989 passed by the ACM Chaksu, Camp at Sanganer, were set-aside. The case was remanded back to the Court of ACM Chaksu with a direction that the plaintiffs be allowed to file rejoinder up-to 24th July, 1997 and thereafter the issues be framed again and case be decided afresh after taking evidence of both the parties. During the pendency of the suit, the rejoinder could not be filed by the plaintiffs up-to 24th July, 1997 and an application was filed by the plaintiffs to grant permission to file rejoinder explaining the reasons for delay - that copy of amended written statement was not received in time, the plaintiff's brother- in-law expired untimely and the Court of ACM Chaksu was changed for Sanganer Tehsil to Sub Divisional Officer II, Jaipur (for short, 'the SDO'), therefore, the file of the case had not been transferred to the Court of SDO II, Jaipur, therefore, there is delay of 20 days which may be condoned and time may be extended to file rejoinder. The application was contested by the defendants. However, the SDO II, Jaipur, allowed the application of the // 9 // plaintiffs to place on the record their rejoinder at the costs of Rs.500/- (Rupees five hundred) vide order dated 10th March, 2004. Being aggrieved with the same, a revision petition was preferred by the petitioner RIICO before the Revenue Board contending therein that it was only a Revenue Board who could have extended time to file rejoinder as the time limit to file rejoinder was fixed by the Revenue Board, therefore, the SDO committed an illegality in extending the time to file rejoinder. The Revenue Board, vide its judgment dated 24th July, 2007 dismissed the revision petition observing that the court below has extended the time in the interest of justice while exercising the powers under Section 151 CPC and even if the trial Court was not empowered to extend the time then the Revenue Board is empowered to extend the time and, in the interest of justice, the Revenue Board extended the time to file rejoinder on payment of Costs of Rs.5,000/-, and, in view of this, the objection of the defendant about extension of time to file rejoinder does not exist. The said order of the Revenue Board dated 24th July, 2007 is under challenge in the Writ Petition No.2036/2008, preferred by the defendant No.1 petitioner, RIICO. // 10 // So far as the Writ Petition No.2036/2008, wherein the orders dated 24.07.2007 and 10.03.2004 have been challenged, is concerned, the aforesaid facts will reveal that although the Revenue Board, vide its judgment dated 10th June, 1997 allowed the plaintiffs to file their rejoinder up-to 24th July, 1997 but the learned SDO, looking to the facts and circumstances of that case and the reasons assigned in the application, allowed the plaintiffs to file their rejoinder at the later date at the costs of Rs.500/-. The Revenue Board examined the matter and dismissed the revision of the petitioner RIICO vide order dated 24th July, 2007 observing that the SDO has extended the time to file rejoinder while exercising powers under Section 151 CPC but even if it is assumed that the SDO had no authority to extend the time fixed by the Revenue Board then the same is now being extended by it at the costs of Rs.5000/-. The whole grievance of the petitioner is that the time fixed by the Revenue Board for filing the rejoinder could not have been extended by the SDO, but, in view of the fact that the Revenue Board itself has now extended the time to file rejoinder, the objection of the learned counsel for the petitioner does not exist. The // 11 // plaintiffs moved an application for condonation of delay for extension of time to file rejoinder wherein it was mentioned that copy of amended written-statement was not received by them in time as it was filed at a later stage, their brother-in-law had died untimely and the Court of ACM Chaksu, Tehsil Sanganer had been transferred to the Court of SDO II, Jaipur and the file of the present case had not been transferred from the Court of ACM Chaksu to the Court of SDO-II, therefore, the rejoinder could not be filed in time and there was delay of 20 days. In these circumstances, the learned Revenue Board was fully justified in extending the time to file rejoinder and I do not find any illegality, perversity or jurisdictional error in the impugned order dated 24th July, 2007, so as to interfere with the same. In view of the above, I do not find any merit in the Writ Petition No.2036/2008 and the same is accordingly dismissed. WP NO.2035/2008 So far as Writ Petition No.2035/2008 is concerned, the learned counsel for the petitioner RIICO contended that the land, in dispute, bearing Khasra No.203 and 204 was acquired by the State of Rajasthan for the petitioner RIICO way back in the year 1982. The // 12 // declaration under Section 6 of the Land Acquisition Act was issued on 24th June, 1982; the possession thereof was taken on 18th October, 1982; the award was passed on 14th May, 1984 and the compensation was also accepted, therefore, there was no occasion to file any suit by the plaintiff-respondents. He further contended that although the Revenue Suit No.252/1985 was filed by the plaintiff- respondents way back in the year 1985 for declaration to the effect that the total area of land bearing Khasra Nos.203 and 204 was 22 bigha 8 biswa, which was wrongly reduced/written as 19 bigha 4 biswa in the last settlement took place in Samvat 2015 (Corresponding Year 1958) but in the said suit the petitioner RIICO was not impleaded as a party defendant, therefore, it could not contest the matter and non-impleadment of the RIICO as defendant party to the suit itself is a fraud committed on the Court and on this ground alone the order of the Revenue Appellate Authority dated 2nd August, 1986 and the order dated 14th December, 1993 passed by the Revenue Board, decreeing the suit of the plaintiff- respondents, are liable to be quashed and set- aside. The learned counsel for the petitioner // 13 // further contended that the petitioner RIICO was not a party to the Revenue Suit No.252/1985 which was decreed by the Revenue Appellate Authority and the Revenue Board, therefore, the said judgments are not binding on it. He further contended that there was no record available in favour of the plaintiffs and the suit has wrongly been decreed. He also contended that there was no occasion for the Tehsildar Sanganer to file written statement admitting the fact of plaint that the total area of the land bearing Khasra Nos.203 and 204 was 22 bigha 8 biswa. He also contended that the SDO, Divisional Commissioner and the Revenue Board committed an illegality in allowing the application of the plaintiff- respondents filed under Section 136 of the Rajasthan Land Revenue Act for correction in the revenue record, therefore, their judgments dated 2nd November, 2004, 26th June, 2006 and 24th July 2007 are liable to be set-aside by this court. In support of his contentions, the learned counsel for the petitioner relied upon S.P. Chengal Varaya Naidu v. Jagannath, (1994) 1 SCC 1, and United India Insurance Company Limited v. Rajendra Singh, (2000) 3 SCC 581. The learned counsel for the plaintiff- respondents contended that there is ample // 14 // evidence available on the record to show that total area of the land bearing Khasra No.203 and 204 was 22 bigha 8 biswa which was wrongly reduced/written as 19 bigha 4 biswa in the last settlement took place in Samvat Year 2015 (Corresponding Year 1958). He contended that from the Notification of acquisition it is clear that only 19 bigha 4 biswa land out of the land bearing Khasra Nos.203 and 204 was acquired and remaining land measuring 3 bigha 4 biswa remained in the possession of the plaintiff-respondents, where their residential houses are situated and they have been residing even today since then. He contended that it was a mistake committed by the Revenue Officers while preparing settlement record. Section 6 declaration and award, all were passed only in respect of the land measuring 19 bigha 4 biswa out of the land bearing Khasra No.203 nd 204 and not for the land measuring 22 bigha 8 biswa. The necessary correction was made in subsequent settlement of 1971 but it could not come into effect and in the meantime the Notification was issued and as per the revenue record the Notification was issued in respect of the land measuring 19 bigha 4 biswa of Khasra No.203 and 204. In these circumstances, it was necessary for the plaintiffs to file a // 15 // suit for declaration under Sections 88 and 89 of the Rajasthan Tenancy Act, which was filed way back in the year 1985 itself. He further contended that the necessary party to the suit for declaration regarding total area of land is the State Government through Tehsildar; and, as per the provisions of the Rajasthan Tenancy Act, the suit was filed against the State of Rajasthan through Tehsildar, which was the only necessary party; the present petitioner RIICO was not a necessary party in the said proceedings; the dispute relates only in respect of the land measuring 3 bigha 4 biswa of Khasra Nos.203 and 204, which was never acquired and no declaration or award was passed in respect thereto; the said land i.e. 3 bigha 4 biswa was never taken in possession by the petitioner RIICO. The defendant State of Rajasthan filed its written statement dated 3rd/7th February, 1986 wherein this fact was admitted that total area of the land bearing Khasra No.203 and 204 was 22 bigha 8 biswa and as per the provisions of the Evidence Act the admission is the best evidence and the suit could have been decreed only on the basis of the admission of the defendant but still the suit of the plaintiffs based on documentary evidence was dismissed. The learned ACM, who // 16 // was only a trainee, committed an illegality in dismissing the suit of the plaintiffs vide its judgment dated 21st June, 1986, which was rightly set-aside by the Revenue Appellate Authority vide judgment dated 2nd August, 1986 which has further been affirmed by the Revenue Board vide judgment dated 14th December, 1993. So far as subsequent orders passed by the SDO, Divisional Commissioner and the Revenue board on the application of the plaintiffs under Section 136 of the Rajasthan Land Revenue Act for correction in the revenue record, are concerned, the same are only the consequential orders. There was wrong entry in the comparative list of old and new Khasra numbers. The present Khasra No.291 measuring 0.81 hectare had arisen out of the old Khasra Nos.203 and 204. The learned SDO rightly allowed the application and the said order has been upheld by the Divisional Commissioner and the Revenue Board. He contended that under the garb of the orders dated 02.11.2004, 26.06.2006 and 24.07.2007, as referred above, the petitioner RIICO cannot be allowed to challenge the order of the Revenue Board dated 14.12.1993 and the judgment dated 02.08.1986 passed by the Revenue appellate Authority. The learned counsel for the plaintiff- // 17 // respondents further contended that in fact the impugned orders are of the Revenue Appellate Authority and the Revenue Board, which were passed in 1986 and 1993, and the same are binding on the petitioner RIICO also and the petitioner had knowledge about these judgments since 1987, as a reference of the judgment of the Revenue Appellate Authority dated 2nd August, 1986 was given in another suit for permanent injunction filed on 5th June, 1987, wherein the RIICO was defendant No.1 but the said judgment was not challenged by the petitioner RIICO since 1987 and the present writ petition, wherein the said judgment has been challenged, is liable to be dismissed only on the ground of delay and laches. He also contended that the judgments have been passed on the basis of the record and admission of the defendant State of Rajasthan in the written- statement, therefore, no fraud has been committed by the plaintiffs in any manner and there is no basis of submissions of the learned counsel for the petitioner RIICO in this regard. He next contended that if any party takes a plea of fraud then it is required that fraud should be pleaded and proved. There is nothing on the record to show that the plea of fraud has been pleaded and proved by the // 18 // defendant-petitioner RIICO at any stage and there is no finding of any court in this regard, therefore, the judgments referred by the learned counsel for the petitioner RIICO are of no consequence in the facts and circumstances of the present case. In support of his contentions, the learned counsel for the respondents relied upon the following judgments:- 1.Gayatri Devi v. Shashi Pal Singh (2005) 5 SCC 527 2.Ishwardas v. State of M.P. - AIR 1979 SC 551 3.P. Girdharan Prasad Missir v. State of Bihar - AIR 1968 Patna 77 4.Hari Singh v. State of U.P. - AIR 1984 SC 1020 5.State of Haryana v. Ajay Walia - (1997) 6 SCC 255 and 6.Poosa Ram v. The Board of Revenue - RLW 1995 (2) (Raj.) 561 I have carefully considered and examined the impugned judgments in the light of submissions of the learned counsel for the parties. In S.P. Chengal Varaya Naidu Vs. Jagannath (Supra) the Hon'ble Apex Court held that the judgment or decree obtained by fraud is to be treated as nullity and can be questioned even in collateral proceedings, and // 19 // such judgment or decree is liable to be set- aside. The Hon'ble Apex Court in Para 6 of the judgment held as under:- “6. .....A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. ............ A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” In United India Insurance Company Limited Vs. Rajendra Singh (Supra) the Hon'ble Apex Court considered its earlier decision in S.P. Chengal Varaya Naidu's case (Supra), and in Para 3 of the judgment held as under:- “3. “Fraud and justice never dwell together” (fraus et jus nunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that “no judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravlels everything” (Lazarus Estates Ltd. v. Beasley (1956) 1 QB 702 : (1956) 1 All ER 341 : (1956) 2 WLR 502 (CA).” In Gayatri Devi v. Shashi Pal Singh (Supra) the Hon'ble Apex Court considered the above referred two judgments in United India // 20 // Insurance Company Limited's case and in S.P. Chengal Varaya Naidu's case (Supra) and held that fraud must necessarily be pleaded and proved. Para 13 to 16 of the judgment reads as under:- “13. The history of this litigation shows nothing but cussedness