- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: O R D E R Lrs of Latif & Ors. Vs. Board of Revenue & Ors. S.B. CIVIL WRIT PETITION NO.417/2003 UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA. DATE OF ORDER : 18.7.2007 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA Mr.Jitendra Chopra,for the petitioners. Mr.OP Boob, Addl. GA, for the respondents. <><><> BY THE COURT: Heard learned counsel for the parties. After several round of appeals and remand ultimately, the Board of Revenue again decided the second appeal against the plaintiffs-petitioners vide judgment dated 10.10.1996, hence, this writ petition by the plaintiffs-petitioners. Brief facts of the case are that original plaintiffs Latif and others filed a suit for declaration for the land of - 2 - Khasra no.85 measuring 350 bigha situated in the village Konra, Tehsil Chouhtan, District Barmer. The petitioners' claim is that they are in cultivatory possession of the land in dispute and are entitled to declare as Khatedar tenant of the said land of Khara no.85 measuring 350 bighas. The suit was dismissed by the trial court – Asstt. Collector, Barmer vide judgment and decree dated 12th July, 1961 on the ground that suit is not triable by the revenue court. Dis-satisfied with the judgment dated 12th July, 1961, the plaintiffs preferred a regular first appeal before the revenue appellate authority, Bikaner (camp Jodhpur). The revenue appellate authority vide judgment dated 14th April, 1962 allowed the appeal and held that suit is triable by the revenue court and, therefore, directed the trial court to decide the suit on merits. After the remand, the Asstt. Collector again dismissed the suit of the plaintiffs vide judgment and decree dated 21st July, 1966. Said judgment and decree dated 21st July, 1966 was challenged by filing appeal before the revenue appellate authority, Bikaner (camp Jodhpur) who by judgment dated 31st July, 1967 again - 3 - allowed the appeal filed by them and again remanded the case back to the trial court for framing fresh issues and to decide the suit afresh. The trial court – Asstt. Collector, Barmer vide judgment and decree dated 17th Dec., 1969 dismissed the suit filed by the plaintiffs. The plaintiffs again preferred a regular first appeal before the revenue appellate authority, Jodhpur, who dismissed the appeal vide judgment and decree dated 27th Sept., 1973. A review petition was submitted to challenge the judgment and decree dated 27th Sept., 1973 before the revenue appellate authority, Jodhpur and that was allowed by the learned revenue appellate authority vide judgment and decree dated 21st June, 1984 and declared plaintiffs Khatedar tenant of land of Khasra no.85 but for 150 bighas only instead of 350 bighas as claimed by the plaintiffs. The Gram Panchayat, Konra aggrieved against the judgment and decree of the learned revenue appellate authority, Jodhpur dated 21st June, 1984 preferred further appeal before the Board of Revenue. The Board of Revenue allowed the appeal of the Gram Panchayat vide judgment and decree dated 29th June, - 4 - 1978 and set aside the judgment and decree dated 21st June, 1984 passed by the revenue appellate authority in faovur of the plaintiffs. Aggrieved against the judgment dated 29th June, 1978 passed by the Board of Revenue the petitioners preferred writ petition before this Court. The plaintiffs writ petition was dismissed by this Court in lemini vide judgment dated 23rd Jan., 1979. The petitioners preferred special leave petition before the Hon'ble Supreme Court and the Hon'ble Supreme Cort vide its judgment dated 21st August, 1981 while allowing the appeal observed as under : - “We are of the view that when the High Court found that the Revenue Board had taken into account extraneous evidence which was not on the record of the case and which was not admissible, the High Court should have remanded the case back to the Revenue Board for disposing it of according according to law in the light of the evidence on record. We, therefore, allow the appeal, set-aside the order of the High Court as also the order of the Revenue Board and remand the case to - 5 - the Revenue Board so that the Revenue Board may dispose it of in accordance with law in the light of the evidence which is on record. The Revenue Board will not take into account any evidence which is not on record in the case. Since the case is an old one,the Revenue Board will dispose it of within one month from the date of receipt of the writ of this Court. There will be no order as to costs.” In view of the direction of the Hon'ble Supreme Court, the Division Bench of the Board of Revenue again after rehearing the second appeal accepted the appeal preferred by the Gram Panchayat, Konra and set aside the order dated 21st June, 1978 passed by the revenue appellate authority. Aggrieved against the order of the Board of Revenue dated 8th Nov., 1983, the plaintiffs again preferred D.B.Civil Writ Petition No.603/1984 before this Court. The writ petition of the plaintiffs was allowed by the judgment of this Court dated 17.8.1995. The Division Bench of this Court quashed the order of the Board of Revenue and remanded the matter back to the - 6 - Board of Revenue for deciding the appeal in accordance with law with the direction to consider all the evidence whether it is documentary or oral. The Board of Revenue after remand from this Court again vide judgment and decree dated 10th Oct., 1996 allowed the appeal of the Gram Panchayat and set aside the judgment and decree of the revenue appellate authority passed by reviewing its own judgment by which the learned revenue appellate authority earlier dismissed the petitioners' second appeal and upheld the dismissal of plaintiffs' suit. This writ petition is to challenge the judgment of the Board of Revenue dated 10th Oct., 1996. According to learned counsel for the petitioners the Board of Revenue committed serious error of law inasmuch as the Board of Revenue did not carefully considered the oral evidence produced by the plaintiffs and all the surrounding circumstances. It is submitted that plaintiffs' possession on the land of Khasra no.85 is proved by oral as well as documentary evidence. The Jagirdar of the village deposed before the trial court that - 7 - the plaintiffs are in cultivatory possession. That evidence has not been controverted in any manner. It is also submitted that oral evidence is fully corroborated by the entries made in the Khasra Girdhawari , which clearly shows the cultivatory possession of the plaintiffs over the land in dispute. It is also submitted that even Patwari of the village also admitted in his statement before the trial court that plaintiffs are in cultivatory possession of the land in dispute. In view of the above reasons, the Board of Revenue again committed serious error of law and in fact, ignored the directions issued by the Hon'ble Supreme Court as well as Division Bench of this Court whereby the Board of Revenue was directed to cosider the oral evidence also as evidence. At the cost of repeation, it is submitted that it is not a case of mere oral evidence, but it is a case finding support from documentary evidence also. Learned Addl. GA Shri Boob appearing on behalf of the State vehemently submitted that the Board of Revenue considered the oral as well as documentary evidence and gave cogent reasons for holding that the - 8 - plaintiffs cannot be declared Khatedar tenant of the land in dispute. It is also submitted that even the evidence produced by the plaintiffs, in fact, proved the fact that land in question of Khasra no.85 is Gochar land and is not available for grant of Khatedari tenancy rights in view of Section 16 of the Rajasthan Tenancy Act. It is also submitted that plaintiffs' possession on small piece of land of Khasra no.85 was an act of trespass for which proceedings for eviction were initiated against the plaintiffs under Section 91 of the Rajasthan Revenue Act. In view of the above, learned counsel for the respondents submitted that this Court may not interfere in the impugned judgment and decree of the Board of Revenue, which has been passed after careful appreciation of the evidence. I considered the submissions of learned counsel for the parties and perused the record. The fact is not in dispute that the plaintiffs filed the suit for declaration of their Khatedari rights over the land of Khasra no.85 and claimed that they are in cultivatory possession of the total land measuring350 bighas. The suit was dismissed - 9 - by the trial court and, thereafter by the revenue appellate authority, but the plaintiffs' suit was decreed by the revenue appellate authority by allowing the review petition filed by the plaintiffs that too, for the land measuring 150 bighas and not for 350 bighas as claimed by the plaintiffs. This decree for the land of 150 bighas was granted on the basis of site inspection conducted by the revenue appellate authority himself. The plaintiffs' own witness in the trial court clearly stated that the plaintiffs' cultivation was on a small piece of land of Khasra no.85, which was from 10 bighas to 40 bighas in different years for which proceedings were initiated under law for removal of their encroachments and notices were issued to the plaintiffs treating them to be the trespassers. The plaintiffs' own witness – the Patwari of the area, very specifically in his statement stated that excluding the small piece of land where the plaintiffs could cultivate the land, rest of the land is Gochar land. Therefore, so far as recording of the land in question in the revenue record as Gochar land is concerned, that entry was proved to be correct. The entire land of - 10 - Khasra no.85 is recorded as Gochar (Pasture) land. The cultivation of the plaintiffs for some time on some portion of the pasture land proves that plaintiffs' cultivation was on small portion of pasture land. No Khatedari rights can accrue on the (Pasture) Gochar land. In view of the above reasons, the Board of Revenue has rightly reached to the conclusion that the land in question was Gochar land and in Gochar land no Khatedari rights can be accrued to even cultivator. In this case, there is no explanation how the plaintiffs, who were claiming their cultivation of 350 bighas of land stand reduced to 40 bighas only. In view of the above reasons, I do not find any illegality in the impugned judgment of the Board of Revenue dated 10th Oct., 1996. Hence, the writ petition of the petitioner is dismissed being devoid of any merit. (PRAKASH TATIA), J. c.p.goyal/-