1 24 S.B. CIVIL WRIT PETITION NO.3477/2001. Mahesh & Anr. Vs. State & Ors. Date of Order :: 22nd September 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Vijay Bishnoi, for the petitioners. Mr. O.P.Boob, Government Counsel. Mr. B.D. Sharma, for the respondent No.3. ..... BY THE COURT: Having heard learned counsel for the parties and having perused the material placed on record, this Court is clearly of opinion that the impugned order dated 20.04.2001 (Annex. 4) as passed by the Board of Revenue particularly in relation to Revision Petition No. 19/1996 as filed by the present respondent No.3, Smt. Sunita Devi (Plaintiff) cannot be sustained and the matter is required to be remanded to the Board of Revenue. Shorn of unnecessary details, suffice is to notice for the present purpose that the respondent No.3 has filed a suit purportedly under Sections 88, 188 and 92-A of the Rajasthan Tenancy Act, 1955 with the submissions that she had purchased the land in question through registered sale-deed from its erstwhile khatedar and the land was duly mutated in her name. It was stated that a part of the land was sold by the previous khatedars to certain other persons and some land to 2 the defendants Nos. 4 to 11. The plaintiff claimed in this suit the reliefs in relation to the land as mentioned in the plaint that the defendants should not interfere with the same and also sought declaration regarding herself being the khatedar thereof. The present petitioners have been arrayed as defendants Nos. 14 and 13 in the said suit but, so far the petitioners are concerned, the written statement is said to have been filed only by the petitioner No.1 (defendant No.14) Mahesh wherein it has, inter alia, been stated that the defendants Nos. 13 and 14 were in possession of the land in question and construction has also been raised by the defendant No. 14. It is an admitted position that in the said suit issues have yet not been framed by the learned Trial Court. However, an application came to be moved by the plaintiff-respondent No.3 on or about 12.06.1994 seeking leave to amend the plaint to incorporate the pleas, inter alia, that the defendants Nos. 13 and 14 (the present petitioners) after filing of the suit and in spite of temporary injunction order, encroached over a part of the land in dispute as comprised in khasra No. 303 and continued to raise construction thereat and the plaintiff was entitled to have such construction removed and to recover vacant possession of the land. It was also suggested that the defendants Nos. 13 and 14 have let out the premises situated 3 at the land in dispute and were earning rent at Rs. 6,000/- per month from the year 1989 by putting it to the use of one Saraswati Hostel. While seeking to incorporate such pleadings and so also the pleas in relation to other respondents about taking over possession on other parts of the land in dispute and some of them raising construction, the plaintiff also prayed for amendment of the relief as claimed in the original plaint and sought to incorporate the reliefs of recovery of possession and damages for use and occupation, apart from perpetual and mandatory injunction. The learned Trial Court by its order dated 16.10.1995 (Annex. 2) proceeded to allow the application for amendment only to the extent of its paragraph 2 that was essentially related to the amendment, said to be clarificatory in nature, that one biswas land of khasra No. 306 was in possession of the defendant No.6 and 10' x 10' land was in possession of the defendant No.11 but the plaintiff for inadvertence omitted to pray for recovery of possession in that regard. Thus, the application for amendment was allowed to the limited extent aforesaid and essentially concerning the reliefs as claimed against the defendant No.6 and 11. Obviously, the other part of the prayers for amendment stood declined. Against the aforesaid order dated 16.10.1995, two revision petitions were preferred before the Board of Revenue: 4 one by the plaintiff-respondent No.3 Smt. Sunita Devi and another by the present petitioners, Mahesh and Dalpat Singh, Revision Petition Nos. 19/1996 and 58/1996 respectively. The learned Member of the Board proceeded to decide the said two revision petitions together by the impugned common order dated 20.04.2001 (Annex. 4). The learned Member of the Board took note of the submissions as made on behalf of the plaintiff that the relief was claimed in respect of Pramila Ben, who was a purchaser and had raised construction over a part of khasra No. 303 and in respect of some opposite parties, including the opposite parties Nos. 13 and 14 (the present petitioners) who had also constructed their houses but the learned Trial Court granted the application only to the extent of the amendment as claimed in relation to two biswas of land and the other part of relief was also required to be allowed. Learned Member also noted the contention on behalf of other side that whatever relief had been granted with respect to two biswas of land was also unwarranted. The learned Member of the Board observed that when the permission to amend the pleading was granted in relation to opposite party No. 6, if other parties were also alleged to have raised construction, there was no justification to refuse the relief identical to that granted with respect to two biswas of land and, therefore, the prayer for amendment was required to be allowed. 5 Consequently, the learned Member of the Board proceeded to allow the revision petition (No. 19/1996) as filed by the plaintiff-respondent No.3 and at the same time dismissed the revision petition (No. 58/1996) as filed by the defendants No.13 and 14, the present petitioners. The order as passed by the learned Member of the Board cannot be approved. It appears that the learned Member of the Board has not considered the distinction in the case as sought to be set up by the plaintiff in relation to the defendants Nos. 6 and 11 on one hand and the other defendants, particularly the defendants Nos. 13 and 14, the present petitioners, on the other. The learned Member, of course, noted a contention raised in opposition to the prayer as made by the plaintiff that even the relief granted in relation to two biswas land was unwarranted but then, the learned Member has not even rejected such contention with reference to the facts of the case and the law applicable and merely observed that once the relief was granted regarding two biswas of land over which opposite party No. 6 had constructed one room, if other opposite parties had also raised construction, the identical relief could not have been refused. Though learned counsel for the petitioners herein has attempted to argue that the amendment as prayed for in 6 relation to the petitioners was clearly hit by the law of limitation and could not have been allowed whereas the learned counsel for the plaintiff-respondent No.3 attempted to argue that the act of trespass and raising of construction by the petitioners having taken place during the pendency of the suit, the plaintiff was definitely within her right to seek amendment so as to claim reliefs in the suit and to avoid multiplicity of the proceedings but, as the matter is being proposed to be remanded to the Board of Revenue, this Court would not like to make any comment on such of the rival submissions; however, such submissions and other submissions as sought to be advanced by the parties definitely go to the root of the matter as involved in the application for amendment and ought to have been taken into consideration by the learned Member of the Board of Revenue before deciding on the revision petition as filed by the plaintiff-respondent No.3. The impugned order as passed by the learned Member of the Board in allowing the revision petition of the plaintiff- respondent No.3 in a rather cursory manner cannot be approved. Accordingly, this writ petition is allowed to the extent indicated above. The impugned order dated 20.04.2001 (Annex.4) insofar it relates to Revision Petition No. 19/1996 is set aside and the matter stands remanded to the Board of 7 Revenue for consideration of the said revision petition afresh and in accordance with law. The parties present before this Court, i.e., the plaintiff-respondent No.3 and the present petitioners who are respectively the revisionist and the non- petitioners Nos. 19 and 20 in the said revision petition, shall stand noticed through their counsel present in the Court to appear before the Board of Revenue on 15.10.2008. In the circumstances of the case, there shall be no order as to costs of this writ petition. A copy of this order be sent to the Board of Revenue. (DINESH MAHESHWARI), J. Mohan/