SBCWP NO.5474/2000. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.5474/2000. Ram Khilari & Ors. Vs. Ranjeet Singh & Ors. Date of order:- May 12, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Nitin Jain for the petitioners. Shri R.K. Mathur for the respondents. **** BY THE COURT:- Petitioners who suffer the orders passed by the Revenue Appellate Authority and the Board of Revenue whereby suit filed by the private respondents under Section 183 of the Rajasthan Tenancy Act, 1955 (for short, “Act of 1955”) has been decreed, have approached this Court. The suit was originally dismissed by the Additional Collector Rajgarh vide order dated 28/12/1990. 2) Contention of the learned counsel for the petitioners is that they were defendants before the first court and produced Khasra Girdawri of Samwat 2012-15 and 2030-33 with 'milan kshetrafal' to show their continuous possession over the disputed land even on the date when the Act of 1955 was brought in force i.e. on 15/10/1955. Learned counsel submitted SBCWP NO.5474/2000. 2 that private respondent merely produced Jamabandi of Samwat 2038 to claim that he was recorded khatedar and the first court dismissed their suit under summary procedure of eviction under Section 183 of the Act of 1955. The plaintiff failed to prove that he was khatedar of the disputed land and that illegal trespass was made by the person/persons sought to be evicted within twelve years preceding the date of filing of the suit. It is contended that the Revenue Appellate Authority and the Board of Revenue have both reversed the judgment passed by the Assistant Collector on wrong premise by holding that the respondent was recorded khatedar of the disputed land in Jamabandi of Samwat 2038. Neither of the courts have examined the fact with regard to possession of the petitioner in Khasra Girdawri of Samwat 2012-15 and 2030-33. In fact, no discussion whatsoever is made with regard to Khasra Girdawri of Samwat 2030-33 either by the Revenue Appellate Authority or by the Board of Revenue. Learned has produced before this Court copies of Jamabandi of Samwat Khatoni 2011 and Samwat 2015-18 showing that in Column Nos.4 & 5 relating to ‘khatedar’, name of Kanhaiyalal was recorded but at the same time with the name of Bhajan etc. as ‘nish’. It is contended that this entry along with similar entry in relation to Jamabandi Khatoni of Samwat 2011 along with SBCWP NO.5474/2000. 3 similar entry of Khasra Girdawri of Samwat 2012-15 and Samwat 2015-18 and also Khasra Girdawri of Samwat 2030-33 cumulatively taken would clearly show prolonged possession of the petitioners over the disputed land for a period much more than preceding twelve years from the date of filing of suit. This aspect has to be completely lost sight of both by the Revenue Appellate Authority and the Board of Revenue. Learned counsel submitted that in Khasra Girdawri of Samwat 2033-33, there was also a note that petitioner has a pakka construction over the disputed land which shows that they were residing in the disputed land for last more than thirty years. The impugned-orders are therefore liable to be set- aside. 3) Shri R.K. Mathur, learned appearing for the private respondent forcefully opposed the writ petition and submitted that for undertaking summary procedure of eviction under Section 183 of the Act of 1955, what is required to be proved is that land of recorded khatedar has been illegally encroached upon by the trespasser and once it is found that the private respondents were recorded khatedars in revenue record, petitioners were liable to be evicted. Learned counsel submitted that even in Khasra Girdawri of Samwat 2012-15, two documents now produced before this Court of Samwat 2011 and 2015- SBCWP NO.5474/2000. 4 18, name of predecessor-in-title of private respondent, Kanhaiyalal was recorded as khatedar but at the same time with the name of Bhajan etc. as ‘nish’ with 18 other persons; that simply shows that they were cultivating the particular piece of land with the permission of Kanhaiyalal. It cannot be presumed that they were in continuous possession. Learned counsel submitted that reference made to Bhajan etc. was thus for 19 persons not Bhajan alone and that was simply indicating of the fact that they were allowed to cultivate the land for a particular year and even if once such reference is made in one Khasra Girdawri in an year, it does not confer any right over such person about the land in question. Learned counsel referred to 'milan kshetrafal' to argue that the lands of two Khasra No.198 Min. measuring 2 biswa and 15 biswa were re-numbered as Khasra Nos.227 measuring 2 biswa and 228 measuring 15 biswa. Claim of the private respondent herein is with regard to new Khasra No.228 measuring 15 biswa and they have no contest with regard to land of Khasra No.227 measuring 2 biswa and if that be the land on which petitioners are additionally claiming possession, respondent would have no objection. Learned counsel submitted that the Board of Revenue has rightly examined the matter and was justified in decreeing the suit of eviction against the SBCWP NO.5474/2000. 5 petitioner. 4) Having analysed the arguments of both the parties and perused the documents forming part of the record, I find that both the parties could not properly set up their respective cases before the courts below where plaintiff merely produced copy of Jamabandi of Samwat 2030-33 and recorded certain statements and petitioners produced copies of Khasra Girdawri of Samwat 2012-15 and 2030-33. The Revenue Appellate Authority by reversing the order passed by the Sub Divisional Officer has only examined the matter from the perspective of Khasra Girdawri of Samwat 2012-15 and did not make any discussion whatsoever with regard to such entries made in the revenue record with regard to Khasra Girdawri of Samwat 2030-33 which was very significant aspect to show possession of the petitioners within last twelve years and even before that period. The Board of Revenue has also similarly did not make any discussion with regard to Khasra Girdawri of Samwat 2030-33. Kind of arguments that are made that Kanhaiyalal was shown as the khatedar and Bhajan and 18 others as ‘nish’ in Column Nos.4 & 5 in Jamabandi Khewat Khatoni of Samwat 2011 and 2015-18 have also not received consideration by any of the courts below. Prima-facie, it is evident from the record that petitioners were having possession over certain SBCWP NO.5474/2000. 6 part of the disputed land for several years. The revenue courts have also not analysed the effect of such possession on the date of commencement in the context of Section 15 of the Act of 1955. 5) Having regard to the facts of the case therefore, I find that the matter required re- consideration at the level of the first revenue court where both the parties would be able to produce all the aforesaid documents on record with any additional documents which they want to produce in support of their respective cases. In the result, the writ petition is allowed. The order passed by the Revenue Appellate Authority dated 18/1/1995 (Schedule-1) and that of the Board of Revenue dated 10/8/1999 (Ann.5) and 9/8/2000 (Ann.6) as well as the order dated 28/12/1990 (Annexure-4) passed by the Sub Divisional Officer are quashed and set-aside and the matter is remanded back to the Sub Divisional Officer Rajgarh to decide the eviction suit filed by the plaintiff- respondent under Section 183 of the Act of 1955 afresh in accordance with law. Since the suit relates to year 1990, it is expected that the learned S.D.O. shall take up the same on priority basis and decide the same as expeditiously as possible. (MOHAMMAD RAFIQ), J. anil