1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 2691 of 1996 TRILOK CHAND V/S STATE & ORS Mr. K.N. JOSHI, for the appellant / petitioner Mr. NS ACHARYA, Mr. B.L.BHATI, DY.G.A., for the respondent Date of Order : 2.1.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- The petitioner, by this petition, seeks to challenge the judgment of the Board of Revenue dated 11.1.96 (Annex.4), restoration of the judgment of the Revenue Appellate Authority dated 18.7.87 (Annex.3), and also claims a declaration to correct the entries made in the revenue record regarding Khasra No.193 to be recorded as measuring 21 Bigha 1 Biswa. The facts of the case, as disclosed in the writ petition are, that the petitioner purchased agricultural land bearing Khasra No.193, pleaded in writ to be measuring 21 Bigha 1 Biswa, vide registered sale deed dated 24.2.76 from one Sukhraj, the Khatedar. Then it is pleaded that at the time of purchase, the land was surrounded by boundary from all the sides, and there was a well also since then. 2 It is then alleged that the above said Khasra No.193 was mentioned 16 Bigha 8 Biswa, however, after purchase, the petitioner suspected the measurements, and therefore got it re-measured on 22.4.78, and learnt, that Khasra No.193 comprises of 21 Bigha 1 Biswa of land, and the entry of 16 Bigha 8 Biswa appears to be by mistake. Thus, in order to get the entry corrected, suit was filed for declaration of khatedari rights of 21 Bigha 1 Biswa, and for correction of entry in the revenue record. It is pleaded that in that suit State Government was also made a party-defendant. Then it is pleaded that in reply to the suit, the State admitted para No.1, 2 and 3 of the plaint to be correct. Then it is pleaded that in para No.2 of the plaint it was pleaded that Khasra No.193 is surrounded by boundaries and it measures 21 Bigha 1 Biswa. Thus it was sought to be made out, that the respondents in the written-statement categorically admitted Khasra No.193 to be measuring 21 Bigha 1 Biswa. It was pleaded, that in the suit no relief was claimed against the present respondents No.4 to 9. This suit was dismissed by the learned trial Court vide judgment dated 3.3.83 (Annex.2). This was challenged by way of filing appeal before the Revenue Appellate Authority, and the Revenue Appellate Authority vide judgment dated 18.7.87 allowed the same, and decreed the plaintiff's suit. This judgment is produced as Annex.3. Against this judgment, the present respondents No.4 to 9 filed a second appeal before the Board of Revenue, and the Board of Revenue by judgment 3 dated 11.1.96 (Annex.4) allowed the same and dismissed the suit. It is alleged that the petitioner produced original khatedar Sukhraj in evidence, copy of his statement is produced as Annex.5A. Sukhraj is said to have deposed about the land being surrounded by boundaries, then it is alleged, that the Board of Revenue accepted the appeal on the ground, that the present respondents No.4 to 9 had purchased the land being part of Khasra no.191, and are in possession, and that according to petitioner, the private respondents had purchased only 2/3rd share of Khasra No.191. It is also contended, that the appeal before the Board of Revenue was barred by time. A reply has been filed on behalf of the State- respondent, denying para No.2 of the writ petition and contending it to be wrong that the petitioner purchased 21 Bigha 1 Biswa of land of Khasra No.193, rather the petitioner purchased only 16 Bigha 4 Biswa of land. Likewise, the para no.3 of the writ petition was also denied being absolutely false, and it was pleaded that the seller, in his statement had admitted, that the land was only having fencing. Then it was maintained that Khasra No.193 comprised of only 16 Bigha 8 Biswa, and there was no mistake whatever. It was also contended that the petitioner deliberately without impleading private respondents as party to the suit for declaration of khatedari rights, has filed the suit, and since the petitioner wanted to claim 4 excess land, it was necessary to implead all neighbours, as they were necessary parties. Judgment of learned trial Court and that of the Board of Revenue was sought to be supported. It was maintained that the State Government categorically took the stand before the learned trial Court that the land of Khasra No.193 is not 21 bigha 1 Biswa, and it was pleaded that khatedar of Khasra No.191 being Suganchand is the necessary party. Likewise, judgment of the Board of Revenue was also sought to be supported. The private respondents also filed a separate reply, contending inter-alia, that the petitioner purchased land vide sale deed dated 24.2.76, and that he had purchased only 16 Bigha 4 Biswa of land, and therefore, he has intentionally not produced the copy of the sale deed, which has been produced by the respondents as Annex.R/1. Thus, it is clear that land of Khasra No.193 is not 21 Bigha 1 Biswa, and to support he also produced Jamabandi of Samvat 2018 to 2021 as Annex.R/2. Then it was pleaded, that rather the petitioner encroached upon the land of the answering respondent, and therefore, he has cooked up the story about land of Khasra No.193 to be 21 Bigha 4 Biswa. In this regard, it was pleaded that this fact is verifiable from the sale deed dated 27.2.76, the seller himself has purchased the land from one Heeralal vide sale deed dated 15.4.74, and Heeralal purchased the same from Ramchandra vide sale deed dated 15.4.71. Thus, the petitioner has 5 tried to mislead the Courts. Then it was pleaded that answering respondents are khatedar of Khasra No.191, and since the petitioner has encroached upon the land of Khasra No.191, no decree could be passed in his favour, in absence of the answering respondents being impleaded as party. Likewise, it was also pleaded that there is no material to show that Khasra No.193 was ever shown to be 21 Bigha 1 Biswa, rather Annex.R/2 shows to the contrary. Then it was contended that the case of the petitioner has no legs to stand, and that the judgment of the Board of Revenue is based on evidence, and requires no interference. Then a rejoinder has been filed by the petitioner to the reply of the State-respondent, reiterating the averments of the writ petition. I have heard learned counsel for the parties and have gone through the material on record. At the outset, a look at the plaint shows, that this is a suit filed under Section 88, 89 and 188 of the Rajasthan Tenancy Act. Looking to the plaint averments, I have my own doubts, as to whether any such suit could at all be maintained under these Sections, as Section 188 contemplates a suit for injunction against wrongful ejectment, while there is no averment in the suit, about any threatened wrongful ejectment. Then so far Sections 88 6 and 89 are concerned, it is nowhere the case in the plaint, that his being khatedar of Khasra No.193, or the nature of his tenancy, was ever under any cloud. Be that as it may. An overall comprehension of the matter does give an impression about the petitioner playing smart, having purchased land of Khasra No.193, tried to grab other land of the neighbours also, and without impleading them as party, has sought a decree, and that the learned trial Court positively found, that the plaintiff has encroached upon the land of Khasra No.191, and wants to have that entered into his khatedari, in the garb of this suit, but then has not impleaded the khatedar of 191 as party in the suit. Of course, the learned SDO has also not come to any categoric finding, as to what was the extent of land comprised in Khasra No.191. Then so far Revenue Appellate Authority is concerned, it has adopted a perverse approach by resorting to a slipshod process, and has simply proceeded to observe, that the defendants have admitted the averments in para No.1 of the plaint, without even comprehending what other pleadings have been taken by the defendant-State in their written-statement, and then has proceeded to decide the question of limitation. Then on the question of the khatedar of Khasra No.191 being necessary party, has proceeded to consider, that since the relief has been claimed only against the State, and no relief has been claimed against khatedar of Khasra No.191, therefore, issue 7 was purported to be decided in favour of the plaintiff. Then regarding issue No.3, all that has been observed is, after deciding issue No.2, that this is how all issues are decided in favour of the plaintiff, without deciding issue No.3 about the entitlement of the plaintiff to get the relief. Then has recorded the argument of the counsel for the plaintiff, that if 21 Bigha 1 Biswa of land is recorded in Khasra No.193, no harm can be caused to the State, and that from the plaintiff's evidence, it is proved that Khasra No.193 comprises of 21 Bigha 1 Biswa of land, and the learned Revenue Appellate Authority, then in one sentence proceeded to observe, that the learned trial Court in its judgment has not discussed any evidence of the plaintiff in this regard, and therefore, the decree was set aside and the suit has been decreed, without even itself coming to its own conclusion of fact, about the Khasra No.193 being comprising of 21 Bigha 1 Biswa of land. The private respondents filed appeal, with the petition for being granted leave to appeal, claiming to have come to know of the judgment (Annex.3) on 23.8.89, when the officers came on the spot in compliance of the order, Annex.3, and claiming inter-alia, that they are purchasers of part of land bearing Khasra No.191, and that the Tehsildar in the reply also has shown their possession, but they have not been impleaded as party, and now in the garb of the order of the Revenue Appellate Authority, a suit has been filed to dispossess them, therefore, the appeal was 8 filed. Learned Revenue Board found, the appellants before it to be entitled to be granted leave, and accordingly leave was granted, and delay in filing the appeal was also condoned. Then on merits, it has been found, that in the written-statement, the Tehsildar has clearly pleaded, that Khasra No.193 comprises of 16 Bigha 4 Biswa, and in the moment the plaintiff is in possession of 18 Bigha 2 Biswa, which excess land forms part of Khasra No.191, which is of the khatedari of Suganchand etc., who have not been impleaded as party. It has been found, that on this aspect, issue No.2 was framed, which has been decided against the plaintiff, while Revenue Appellate Authority did not make any discussion on this issue. Then it was also considered, that the plaintiff has purchased only 16 Bigha 4 Biswa of land of Khasra No.193, as is entered in the Jamabandi of Samvat 2032 to 2036, and simply on the basis of the site plan, wherein an increased amount of land has been shown, declaration cannot be granted in favour of the plaintiff. It was also found, that plaintiff has not produced any Jamabandi, or Khasra Girdawari, or the earlier settlement record, which might show the Khasra No.193 to be comprising of 21 Bigha 1 Biswa. Thus, the conclusions of the Revenue Appellate Authority were not found to be sustainable and the appeal was allowed, and the suit has been dismissed. This does show that the plaintiff has been able to succeed in his schemes, and did get decree from the Revenue Appellate Authority. Ofcourse that decree has now been set 9 aside by the learned Board of Revenue. Be that as it may. Then I proceed to examine the claim of the plaintiff on its own merits. In this regard, a look at the copy of the sale deed, which has been produced by the respondents as Annex.R/1 does show, that the land conveyed thereby has been described as Khasra No.193 measuring 16 Bigha 4 Biswa. It is written in words and figures. Then category of land has been shown to be Barani by first carrying land revenue of Rs.7/-. Then it is described that on the land there is one well, machine room, water reservoir, Kundi and a hutment. There is no mention about any boundary wall, or fencing, to be existing on the land of the Khasra conveyed. Likewise, east-west or north-south boundaries of the land have also not been mentioned in the sale deed. As against this, a look at Annex.5A, being the statement of seller, shows, that he has purported to give details of the four side boundaries, and has deposed, that there was fencing all around the land. A specious argument was raised on the basis of this statement, that this being the evidence of the plaintiff, to which there was no rebuttal, and accordingly 21 Bigha 1 Biswa of land stands comprised in Khasra No.193, and therefore, the suit was rightly decreed by the learned Revenue Appellate Authority. A look at Annex.6 produced by the petitioner itself shows that Khasra No.191 is shown to 10 be in the khatedari of Suganchand. Then a look at Annex.6 itself also shows, that vide mutation No.274, 2/3rd portion of this land of Khasra No.191 had been mutated in favour of the private respondents. In this sequence, a look at the judgment of the learned trial Court does show, that by the existing defendants, categoric plea has been taken to the effect, that in the neighbourhood of the plaintiff, there exists Khasra No.191 measuring 41 Bigha 8 Biswa, being of the khatedari of Suganchand, and from out of that land, the plaintiff has encroached on the portion of land pleaded therein, and without impleading him as party, the plaintiff wants to obtain a decree behind the back (एकतरफ) and suit has been filed against the State, which is not maintainable. In this background, a look at the provisions of Sections 91 and 92 of the Evidence Act shows, that the type of evidence comprised in Annex.5A was not permissible to be led, and even if led, could not be considered, or admitted, in evidence. Significantly, admittedly the plaintiff was required to prove his case by producing the sale deed, which he has failed to produce, not only before the Courts, below even before this Court, and with regard to the facts on the basis of which the suit has been filed, no other evidence could be admitted, in view of the bar contained in Section 91 and 92 of the Evidence Act, except the sale deed itself, and as the things have it, now copy of the sale deed is available as Annex.R/1, which clearly shows, that the evidence led on the side of the plaintiff, 11 comprising of the seller, produced before this Court as Annex.5A, for the purposes for which it is led, is clearly prohibited by the aforesaid provisions of Sections 91 and 92 of the Evidence Act. It is not shown on the side of the petitioner, that any other revenue record was produced before the Courts below, nor any record has been produced before this Court to show, that this land of Khasra No.193 was ever recorded as comprising of 21 Bigha 1 Biswa, and/or somehow accidentally, or by error, or in the process of consolidation, it came to be recorded as comprising of 16 Bigha 4 Biswa. Thus, considering the case from any standpoint, I do not find the plaintiff to be entitled to any relief in the suit, and find the suit to have been rightly dismissed by the learned Board of Revenue. The writ petition thus, has no force and is dismissed. The parties are left to bear their own costs. ( N P GUPTA ),J. /tarun/