IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 1.CIVIL WRIT No. 1457 of 1986 OM PRAKASH & ORS V/S BOARD OF REVENUE & ORS 2.CIVIL WRIT No. 1103 of 1986 L.RS.OF BALU THROUGH HEERA & ORS V/S STATE & ORS Mr. NS ACHARYA, for Om Prakash & Ors. Mr. LR MEHTA & Mr. SAJJAN SINGH,for L.Rs.of Balu & Ors. Mr. OP BOOB, & Mrs. RR KANWAR, AGAs. Date of Order : 15.3.2007 HON'BLE SHRI N P GUPTA,J. ORDER These two petitions have been filed by either parties, i.e. the plaintiffs and the defendants, against the common judgment of the learned Board of Revenue dt. 8.4.1986. Writ No. 1457 of 1986 has been filed by the plaintiffs, while Writ No. 1103 has been filed by the defendants. The plaintiff is challenging the part of the order, whereby the learned Board of Revenue dismissed the part of the suit, relating to the land comprised in Khasra No. 42 and 86, while the defendants have filed writ petition challenging the part of the order, decreeing the plaintiffs' suit, with respect to the land comprised in Khasra No. 44. Before proceeding with the judgment I am constraint to observe, that the present litigation is an unique example of the litigation, initiated way back on 13.5.1949, with respect to the aforementioned three parcels of land, and the dispute started virtually from the day one of the grant of right for the land, as plaintiffs claim under a Bapi Patta, while the defendants claim under a Gair Bapi Parcha, being of the year 1949 and 1948. The facts of the case are, that the plaintiffs filed a suit for possession and compensation against the defendants, which suit was subsequently amended, and written statement was filed to the original suit as well as to the amended suit. Then, a rejoinder was filed. The averments of the plaint are, that the plaintiffs No. 1 and 2 along with Chuna and Samela etc. were granted a Bapi Patta by Tehsildar, Jodhpur on 22.2.1949, regarding Khasra No. 42, 44, 58 and 86, total measuring 152 Bigha & 18 Biswa. These lands were in possession of the grantees in samvat year 2005. It was then alleged that Chuna and Samela alienated their rights to one Ram Chander. It was then alleged that the defendants also filed an appeal against this granting of Patta before Dy. Commissioner, which was dismissed on 27.4.1949, and the order of Tehsildar was 2 upheld. According to the plaint, in absence of the plaintiff, the defendants started interfering in Khasra No. 86, and wanted to forcibly encroach upon the well, whereupon application was filed before Tehsildar for restraining the defendants from so interfering, which stay was vacated on 15.4.1949. However, the defendants forcibly took possession over the land of Khasra No. 86, and started cultivating also, on coming to know of it the plaintiffs asked the defendants to desist, and on their declining the suit is being filed. Then, a plea was raised about damage being suffered by the plaintiffs. It was then pleaded that the cause of action arose to the plaintiffs when the defendants started encroaching upon the land, and also started taking steps for getting Patta. Interalia with these averments a decree was prayed for possession of the land being Khasra No. 42, 44 and 86, and also for damages and future compensation. The stand of the defendants in the amended written statement was, that the order of Tehsildar to grant Patta is still subjudice in appeal, and the effecting of mutation is stayed, and therefore, it is wrong that the plaintiffs are granted Bapi Patta, and the plaintiffs have no right to file suit on the basis of that Patta. It was then pleaded, that these lands were never in cultivatory possession of Chuna and Samela, and Gair Bapi Parcha produced by the plaintiffs dt. 13.11.48 is wrong, rather in view of the 3 defendants’ cultivation, Gair Bapi Parcha was granted to defendants, and was entered in Girdawari, but the plaintiffs, in collusion with the Government officials, got issued Gair Bapi Parcha in their name, and remark was managed about the entry in favour of the defendants having been made erroneously. In such circumstances, plaintiffs have no right to maintain the suit on the basis of such Patta. Then, the alienation by Chuna and Samela was denied for want of knowledge, and being unregistered, and therefore, being not admissible in evidence. Then, it was pleaded that the land was never in possession, rather it was in possession of the defendants only, and therefore, there is no question of defendants' cultivating the land of Khasra No. 86 in absence of plaintiffs, and that since Ram Chander was not in possession, they had no right to get any injunction, and therefore, the injunction was vacated. It was also pleaded, that on account of the plaintiffs getting injunction, the defendants' standing crop was destroyed, for which they claimed damages. Interalia with these pleadings it was pleaded that the suit be dismissed. A rejoinder was filed by the plaintiffs, contending that no proceeding is subjudice regarding grant of Patta dt. 22.2.1949, nor any mutation has been stayed, and that the alienation by Chuna and Samela is valid. Then, it was pleaded that the defendants Balu fraudulently got issued Gair Bapi Parcha regarding Khasra No. 42 and 86 on 4 11.11.1948, which was set aside on 13.11.1948 itself, and other pleadings taken in the plaint were reiterated. It was also pleaded that even the Revenue Board has found, that Patta was validly granted by the Tehsildar. During trial various documents were filed by the parties, and oral evidence was also led. However, the defendant Balu did not appear in the witness box. Learned trial court, vide judgment dt. 2.1.1978 decided the suit, and decreed the same. However, the controversy raised before the learned trial court was about Tehsildar's right to issue such Patta, and that issue was separately decided, which matter was carried upto this Court, and this Court in D.B. Civil Writ Petition No. 375/61, decided on 26.8.1965, reported in 1966 RLW-427, held that Tehsildar had power to grant Patta. However, on merits the learned trial court framed issues, viz. about alienation being not admissible in evidence for want of registration, and about the plaintiffs being entitled to decree for possession for Araji 42, 44 and 86, on account of the defendants' possession being illegal, and the other issue was about the plaintiffs' entitlement to get compensation. It was noticed by the learned trial court, that a Gair Bapi Parcha was issued in favour of the defendants on 5 11.11.1948, but then another Patta was issued in favour of the plaintiffs on 13.11.1948, and that, there was a report of the Patwari, and the order of the Revenue Inspector, noting that a Gair Bapi Parcha was erroneously happened to be issued in favour of the defendants, which was duly sanctioned, and the compliance was reported. It was also noticed, that appeal against grant of Patta was dismissed on 27.4.49. Then, further appeal was dismissed on 23.2.1953, and the Board also upheld these orders, and these orders have not been challenged any further in any other court. It was noticed, that it is during this interregnum period, that on account of the defendants' taking possession illegally, that the suit has been filed. It was noticed that during the pendency of the appeal against Patta, the defendant Balu applied for being granted permission to cultivate, but that permission was not granted. Likewise 145 Cr.P.C. proceedings were also initiated by Chunilal, Munidas etc. against Ram Chander, wherein the land was got attached, but then those proceedings were dropped on 12.1.54, and the possession was delivered to Ram Chander. Thereafter Balu initiated 145 proceedings, and got the land attached. Thus, it was noticed that there is a long drawn series of litigation. Then, the learned trial court also noticed, that the defendant No.2 Karnia filed a separate written statement, admitting that the possession of Balu is illegal, and in that regard an agreement was executed on 27.6.50, and was 6 got registered on 20.7.50. Then, it was considered, that Chuna and Samela had alienated their right to Ram Chander, original document whereof is also on record, and after death of Ram Chander, his widows Godawari and Jamna sold the land to the plaintiff Pratap and his sons, after permission. Then, it was considered that the litigation is going on for the last 28 years, and during this period the proceedings remained pending in various courts, and the trial had to be ordered to be expedited. Then, coming to the issues; deciding issue No.1 it was held, that the mutation has been effected in favour of the plaintiffs, as is apparent from Girdawari, and Sarpanch Madan Lal, despite being member of community of defendant Balu, admitted, that the land revenue for one or two year was paid by Pratap, and that defendants have nothing to do with Khasra No. 44, and thus it was found, that since land is mutated in favour of the plaintiffs, issue No. 1 was decided in favour of the plaintiffs. Then, considering issue No.2, about validity of Patta, on the ground, other than jurisdiction of Tehsildar, it was considered that apart from issuance of Gair Bapi Parcha in the name of Balu, there is no material on record to show the defendants' possession, much less any circumstance to show the defendants' possession, immediately before. It was also considered, that the Collector, in the order dt. 9.4.1952, has also held that the defendants had not been able to show any right except that they had Gair Bapi Parcha with them, while the grant 7 of Patta in favour of the present plaintiffs negatives the importance of Gair Bapi Parcha, and that the conduct of Hawaldar, who granted this Gair Bapi Parcha is also suspicious. Then, it was also found that from the perusal of the record it is clear, that the defendants have failed to show any basis, on the basis of which they could get Gair Bapi Parcha, and nothing has been placed in rebuttal to show, as to on what basis the Patta can be said to be illegal, apart from the question of jurisdiction. Thus, this issue was also decided in favour of the plaintiffs. Then, the issue No. 3, about Chuna and Samela being necessary party, was also decided in favour of the plaintiffs. Then, deciding issue No. 4 regarding admissibility of the sale deeds, it was noticed, that regarding the earlier alienation in favour of Ram Chander, it has been also held, while deciding issue No. 3, that want of registration does not adversely affect the right of the plaintiffs, and vide order dt. 27.6.59, the plaintiffs' right under the alienation has been recognised, and that order has not been assailed. Then, deciding issue No. 5 it was considered, that the Patta has been upheld in appeal after appeal, and obviously therefore, in view of the title also, the plaintiffs are entitled to decree for possession. Evidence led on the side of the parties was also considered, and the plaintiffs' title was upheld. In the result the suit of the plaintiffs was decreed. 8 Against this judgment & decree dt. 2.1.1978, an appeal was filed by defendant Balu, before the learned Revenue Appellate Authority, which was allowed vide judgment dt. 8.1.1979. The learned Revenue Appellate Authority, in para-4 has cataloged the material available on record, and has noticed, that the defendant No.2 submitted two contradictory written statement, and that he has no interest in the suit, while Balu remains the only contesting defendant, who contested the suit. Learned Revenue Appellate Authority prefaced the finding by judgment of Hon'ble the Supreme Court in Brahma Nand Vs. Neki Puri reported in AIR 1965 SC-1506, that in a suit for ejectment the plaintiff has to succeed or fail on the title that he establishes, and that, he can not succeed on the weaknesses of the defendant, and therefore proceeded to pose a question, about the plaintiff's title to bring the suit, requiring to be determined, and then proceeded to discuss the plaintiffs claim of title on the basis of Patta Ex. P-3 dt. 24.2.49, which was originally issued in the name of Chuna, Samela, Udaram and Omprakash, and considered, that therefore, the validity and legality of this document is to be determined. Then reference was made to the rules, being the “Rules for Bapidars and Gair Bapidars” prevailing at the relevant time in Marwar State before the Marwar Tenancy Act came into force, and then quoted the definition of Tenants, Gair Bapidar, Occupying, and Bapidar, and proceeded to conclude, that occupation of 9 land was a pre-requisite for becoming tenant, may be even without the consent of the ruler, and that, such tenants who did not hold Bapi Patta were known as Gair Bapidars, and they could apply and obtain a Bapi Patta, and that it was essential for granting Patta, that the person concerned should be a tenant, and should have been in occupation of the land. It was considered, that admittedly, defendants were granted Gair Bapi Parcha on 11.11.1948, i.e. more than three months before the grant of Patta, and this grant of Gair Bapi Parcha shows, that the defendants were already in occupation of the land in question, and in absence of anything to show, that the defendants ever surrendered possession, or having been ejected by the landlord, no Patta could be granted to the plaintiffs, and with this assumption, it was considered, that neither Patwari nor Revenue Inspector was competent to cancel the Gair Bapi Parcha, which they tried by Ex.P-4, Ex. P-5, and Ex.P-6, and that any such cancellation, without actual ejectment, according to law, is meaningless. Then it was also considered, that Patwari and Revenue Inspector were not called in the witness box to prove orders, and that neither Gair Bapi Parcha dt. 11.11.48 has been cancelled, nor any notice for cancellation has been given to the defendants. Thus, it was held, that in view of defendants being possessed of Gair Bapi Parcha, coupled with actual possession, conferred better right and title, in comparison to Bapi Patta, without occupation of land. Thus, on this 10 ground it was held, that Patta could not be legally issued in respect of the land under occupation of the defendant, for which they were holding Gair Bapi Parcha. Then alternatively it was considered, that even if Patta is considered to have been legally issued, what rights accrue to the plaintiffs, and in this regard the documents of alienation being sale deeds Ex. P-21 and Ex.P-22, and Ex.P- 23, were considered, and then proceeded to consider, that in sale deed Ex. P-21 there is no mention of delivery of possession, and therefore, it is nothing but is a waste paper, as it is not registered, and that this document has also not been proved according to law, by producing the seller, the purchaser, or the witness, in the witness box. Then, evidence of Pratapji was considered in this respect, and it was disbelieved that the possession was delivered. It was also considered that when the Patta was issued in the name of four persons, how two of them could sell their unspecified share. Then, regarding Ex.P-22 it was considered, that though it is registered, but it is executed by two widows of Ram Chander, and since the possession was with the defendants, the mention about delivery of possession in this document is obviously false, and since no title passed to Ram Chander vide Ex.P-21, no title could be passed by Ex.P-22 either. Then, it was considered, that out of the two executants, only one, viz. Godawari, was produced before the Sub Registrar, and that the document was not proved by producing the purchaser, 11 seller etc. It was also considered that the property being belonging to the minors, could not be sold without permission of the District Court, and no such permission has been produced. Then, on the same ground, as that of Ex.P-21, the sale deed Ex.P-23 was also not accepted. Thus, it was held, that since neither of the sale deeds confer any title on the plaintiffs, they cannot be granted decree for possession, and defendants cannot be said to be trespasser, on the face of provisions of Rules for Bapidars and Gair Bapidars. Since it was also considered, that there is total absence of evidence on the side of the plaintiffs, except the statement of Pratap himself, who was assumed to be sole architect of the case, being the scribe, attesting witness, and the plaintiffs, and keenly interested, and he was considered to be not a reliable witness. In the result the appeal was allowed, and the suit of the plaintiffs was dismissed, with respect to all the lands. Aggrieved of this, the plaintiffs filed second appeal before the learned Board of Revenue, who partly allowed the same as above. The learned Board of Revenue also traveled on the same track, by getting involved into the various provisions of the rules, and considered, that the defendants were not ejected by initiating any proceedings in accordance with law, and it proceeded to agree with the findings of the learned Revenue Appellate Authority whole hog. The learned Board of Revenue 12 considered, that in original Khasra Girdawari of 2005, possession of defendants was entered against the Khasra No. 42 and 86, and that it was only after issuance of Bapi Patta, that the corrections were made, by entering the names of Patta holders. However, it proceeded to consider, that the Revenue Appellate Authority committed error in dismissing the entire suit, inasmuch as regarding land comprised in Khasra No. 44, neither any Gair Bapi Parcha was issued in favour of the defendants, nor defendants were shown in possession of this land in Khasra Girdwari, rather they were shown in possession of Khasra No. 42 and 86, for which they have been issued Gair Bapi Parcha. Then, regarding plaintiffs' title, it proceeded to consider, that one co-tenant could file a suit for ejectment of trespasser, and Omprakash, who is the plaintiff No.2, is one of the co-tenants, as Bapi Patta was issued in favour of Chuna, Samela and Omprakash, and therefore it was held, that decree can be passed in favour of Omprakash, so far as Khasra No. 44 is concerned, and accordingly the appeal was allowed to that extent. Arguing the writ petition it was submitted by Mr. Acharya, by way of narration of facts, that the plaintiffs (their predecessor in interest being four persons) applied for grant of Patta, being in cultivatory possession, on 17.7.1948, whereupon on 20.7.48 public notice was issued 13 inviting objections (Ex. P-17 in the trial court and Annexure-1 in the writ petition), however, no objection whatever was submitted, and Patta was ordered to be granted, and it was granted on 23.2.1949. In the meantime on 11.11.48 a Gair Bapi Parcha was issued by Patwari in the name of defendants Balu and Karnia. It was pointed out that before Girdawari of Samvat 2005 there was no entry in any of the record about defendants' possession. It was then submitted that on the plaintiffs' complaint, correction was ordered to be made, and on the plaintiffs' application it was reported that Gair Bapi Parcha has erroneously been issued, and it was ordered to be corrected, and necessary amendments were made in the record. It was then submitted that the defendants challenged the Patta by way of filing appeal, which appeal and successive appeals were dismissed right up to the Board of Revenue. Thus, the Patta acquired finality. In these circumstances, it was submitted, that the plaintiffs filed the present suit for possession, wherein out of two defendants, defendant No. 2 Karnia admitted the plaintiffs' right. It was then submitted that the power of Tehsildar was upheld by this Court vide judgment in Balu Vs. Board of Revenue, reported in 1966 RLW-427. Then, it was submitted that the plaintiffs claim through Ram Chander and Uda, and Bapi Parcha was duly issued in the name of Uda on 13.11.1948, and that, even according to Sarpanch Madan Lal defendant has nothing to do with Khasra No. 44. Then, it was pointed out that in the 14 Girdawari of Samvat 2004, the land has been shown to be “Parat”, while in Samvat 2005 it was entered in the name of the petitioners' predecessor. Then, the statement of Balu, available on record of the trial court as Ex.P-25, was referred, wherein Balu defendant has deposed that he has nothing to do with the land in question, and that he is not in possession of the land. It was also pointed out that the defendants never applied for any Bapi Patta. With narration of these facts, assailing the impugned judgments, it was submitted, that the learned lower appellate authorities, being Revenue Appellate Authority, and the learned Board of Revenue, have not even touched the findings of the learned trial court on any aspect, including the grant of Patta having been made after public notice, so also about the fact that Patta had been upheld in all the three courts on appeal which amounts to res-judicata. Then, it was submitted that though in the earlier orders which culminated into judgment in 1966 RLW-427, the question gone into was about the jurisdiction of Tehsildar to grant Patta, but that was also examined on the facts of the present case, being that of grant of Patta, and therefore, that did include a question about the right of Tehsildar to grant Patta in the circumstances of the present case, and therefore, when the power of Tehsildar has been recognised, obviously the Patta stood re-affirmed, and the courts below were not entitled to embark upon the validity of Patta. Then, it was also pointed out that vide order dt. 9.4.52, 15 certified copy whereof is produced on record as Ex.P-28, which was passed in appeal against temporary injunction order, which is an order inter-parties, it was found, that the possession of the plaintiffs is evident from the record, and that the defendants are not able to show any right, except being in possession on the basis of Gair Bapi Parcha with them, and it was also noticed, that conduct of Hawaldar who granted this Gair Bapi Parcha, was in question, and was suspicious, so much so that that Hawaldar was suspended, and enquiry was going on against him for tampering with the Government record. According to the learned counsel, thus, the possession of the plaintiffs was established, and that the prayer for possession was made in the suit because the plaintiffs were dispossessed from Khasra No. 86, while since there was temporary injunction in favour of the plaintiffs, against the defendants, in the previous proceedings upto 15.4.49, the defendants were not in possession. It was also submitted that the trial court had clearly found, that the previous entries were corrected after grant of Gair Bapi Parcha, which was again duly altered on 25.2.49, after grant of Patta to the plaintiffs. Then, it was submitted that the learned Revenue Appellate Authority has catalogued findings of the learned trial court in para-7, but then has decided, that in the opinion of the learned authorities, even the Gair Bapi Parcha, coupled with actual possession, conferred better rights and title in comparison to Bapi Patta without occupation of 16 land, and then concluded, that the Patta could not be legally issued on 24.2.49, in respect of the land which was already under occupation of the defendants, for which they also held a Gair Bapi Parcha dt. 11.11.1948. It was contended that there is absolutely no evidence on record to show, that the possession was with the defendants, on the basis of which they could, or they were given Gair Bapi Parcha, while the learned Revenue Appellate Authority has simply catalogued some of the rules, which according to the authorities were relevant, and has concluded