1 S/5 S.B. CIVIL WRIT PETITION No. 1418/2007 [SAWAI SINGH VS. BOARD OF REVENUE & ORS.] Dated : 10.04.2008 HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr.Shamboo Singh for the petitioner. ***** This writ petition is directed against the order dated 16.05.2006 passed by the Board of Revenue whereby the order passed by the Revenue Appellate Authority, Bikaner was upheld. The Revenue Appellate Authority otherwise remanded the matter for his decision afresh on merit. Learned counsel for the petitioner submits that the suit was not maintainable before the Revenue Court as the prayer made in the suit is nothing but seeking specific performance of the agreement and as such relief can be granted only by the civil court thus suit maintain before the Revenue Court deserves to be dismissed being not maintainable. The plea raised aforesaid was not accepted by the courts below as it was held that it is not a suit for specific performance inasmuch as fact pertaining to agreement has been brought only as an evidence to show right to adverse possession. Learned counsel for the petitioner referring to the suit at Annex.1 submitted that in Prayer No.1 itself there exist reference of the agreement 2 to sale and therefore, necessarily it was a suit for specific performance which can be entertained by the Revenue Court. It is further contended that even a claim of adverse possession cannot be maintained on execution of the agreement to sale and for that purpose he cited judgment of the Hon'ble Apex Court rendered in AIR 1990 SC 553 Achal Reddi Vs. Ramakrishan Reediar. In the aforesaid case, Hon'ble Apex Court held that adverse possession cannot be claimed against the executor of the contract of sale on the facts existing therein. I have considered the submissions made by the counsel for the petitioner. So far as the issue raised is concerned, perusal of prayer made in the suit does not show that it is a case of specific performance rather conclusion drawn by the Revenue Board are correct inasmuch as it is suit where plaintiff has claimed rights based on adverse possession and fact pertaining to agreement to sale is only to the effect of showing the possession. In view of the above, so far as the first argument is concerned, the same cannot be accepted. Coming to the second argument in reference to the judgment of the Hon'ble Apex Court is concerned, it is necessary to clarify that the matter in regard to the claim of adverse possession is yet to be adjudicated by the Competent Authority where the suit is pending therefore, whether adverse possession can be claimed against the executor of sale deed or otherwise is 3 issue to be decided by the competent revenue court where the suit is pending. In view of the above, this Court cannot decide the issue which is subject matter of the suit and pending before the revenue court, therefore, if at all the petition has any legal ground to challenge the claim of the plaintiff on merit, necessarily it has to be agitated before the competent revenue court. (MUNISHWAR NATH BHANDARI), J. mamta