IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPECIAL APPEAL WRIT No.1054 of 1997 ASU LAL & ORS. V/S BOARD OF REVENUE Mr. JITENDRA CHOPRA, for the appellant / petitioner(s) Mr. O.P.BOOB, Addl. G.A. Date of Order : 3.3.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- This appeal has been filed by the appellant against the judgment of the learned Single Judge dated 25.7.1997, dismissing the appellant's writ petition. In the writ petition, the appellant had challenged the order of the Board of Revenue dated 2.4.1992, whereby the learned Board of Revenue accepted the Reference, and set aside the judgment and decree of learned Assistant Collector dated 28.4.1971, passed in Civil Suit No.62/70 (4/71). Necessary facts are, that the petitioner-seller Mohd. Ali had filed a suit in the court of Assistant Collector, sometime in the year 1970, under Sections 88 and 188 of the Rajasthan Tenancy Act, for declaration of his khatedari rights, claiming to be in old possession over the land in question, being 209 bighas of Khasra No.216 of Village Gangala. In that suit, the learned Assistant Collector recorded the evidence of the plaintiff, as the defendants, after filing written statement, remained absent. This evidence included the statement of Patwari, who had deposed, that the plaintiff is in cultivatory possession of the land in question since Samvat 2027, and also deposed that on some portion, being 42 bighas, he is in possession since Samvat 2017 (corresponding to calendar year 1960). From that evidence, the learned SDO concluded, that the plaintiff is in old possession, but decreed the suit only with respect to 100 bighas of land, out of 209 bighas. This decree was upheld in the plaintiff's appeal, vide judgment and decree of the R.A.A. dt.31.7.1979. The learned Board of Revenue dismissed the plaintiff's second appeal also, vide judgment dated 21.4.1986. However, in that judgment, it was observed, that if the Collector finds, that there is any ground for setting aside the decree, to that extent, a reference may be made to the Board of Revenue, for setting aside this order. It is consequent thereto, that the Tehsildar submitted application for reference to the Additional Collector, who 2 after hearing Mohd. Ali made reference, vide order dated 16.1.1990, and that reference has been accepted by the impugned order of the learned Board of Revenue, dated 2.4.1992. Learned Single Judge found, that no doubt there is delay of 16 years in making a reference, but on close perusal of the matter, it becomes clear, that the suit filed by Mohd. Ali was pending litigation, and came to be decided by the Division Bench of the Board of Revenue, only on 21.4.1986, and perhaps, it is because of the pendency of the litigation, before the RAA, and the Board of Revenue, that the Tehsildar must not have thought it fit to make application before the Collector till 1987, and ultimately thereafter, an application has been moved. Thus, it was found that practically, there is no delay, and thus, the Division Bench judgment, which was relied upon before the learned Single Judge, in Anandi Lal's case [Anandi Lal vs. State of Rajasthan, reported in (1996) 2 WLC (Raj) 36], found to be not applicable, and learned Single Judge relied upon the subsequent Division Bench judgment of this Court, being in Writ Petition No.2005/1989. The learned Single Judge considered the aspects of merits also, and held against the petitioner. Then, the aspect of giving opportunity of hearing was also considered, including the fact that the present appellant came into possession in 1982, and he did not choose to become party before the 3 Board of Revenue, and simply waited and watched the matter, and it is only after the Board of Revenue set aside the decree, that they came up as co-petitioners. Then, the aspect of death of Mohd. Ali has also been considered. We have heard learned counsel, and have also gone through the judgments, available with us. In our view, all said and done, even from perusal of Annex.1, which is the judgment of the Assistant Collector, it is not clear, as to how the plaintiff acquired khatedari rights, or even acquired any semblance of right, or title, over the land, and even if, for the sake of argument, it were to be assumed, that the plaintiff was in possession since Samvat 2017, still, till the date of filing of the suit, the plaintiff did not complete even 12 years' possession, much less he acquired any right or title by adverse possession, nor did he acquire any interest, under or in accordance with the provisions of the Rajasthan Tenancy Act, and on the face of it, it cannot be said, that such possession tantamounts to old possession, which has been made the basis, by the learned Assistant Collector, to decree the suit. In such circumstances, in our view, the learned Single Judge was right in declining to interfere with the judgment of the learned Board of Revenue. So far as the judgment in Anandi Lal's case (supra), which has again been relied upon 4 by the learned counsel is concerned, that has already been considered by the learned Single Judge, and in our view, from a right standpoint. It is clear, that by virtue of provisions of Order 22 Rule 10 CPC, the appellant, being the purchaser, was bound by the proceedings, and he could have continued to proceedings with the leave of the court, but he clearly appears to have adopted the attitude of “wait and watch”. Thus, we do not find any sufficient ground to interfere with the impugned order. The appeal is, therefore, dismissed. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. RANKAWAT JK, PS 5