1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER S.B.Civil Writ Petition No.3808/1989 (Manphooli & Ors. Vs. State of Rajasthan & Ors.) Date of Order :- 26.02.2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.N.K. Maloo, for the petitioners. Mr.S.D. Khaspuria, Addl.G.A. for the State. The petitioners have challenged the order dated 27.04.1979 passed by the Assistant Collector whereby the learned Collector has dismissed the petitioners' suit for declaration and correction in the revenue record. They have also challenged the order dated 23.12.1985 passed by the Revenue Appellate Authority ('the RAA' for short) whereby the learned RAA has upheld the order dated 27.04.1979. Lastly, they have challenged the judgment dated 02.12.1987 passed by the Board of Revenue ('the Board' for short) whereby the learned Board has upheld the order dated 23.12.1985 and the order dated 27.04.1979. In brief the facts of the case are that Shri Narain, husband of petitioner No.1, was in the military service of the erstwhile Jaipur State. Because of his exemplary services, on 20.12.1947 he was allotted agricultural land 2 measuring 57 bighas 2 biswas in village Sanganer, District Jaipur by the Jaipur State. The said land comprised of the following khasra numbers along with the measurement : खसरा नं0 रकबा खसरा नं0 रकबा बीघा िबःवा बीघा िबःवा 889 2 3 896/1 36 3 898/1 2 14 898/2 1 2 898 0 2 800 0 5 898/3414 1 4 898 1 13 898/3421 1 8 904 1 13 905 0 16 900 0 15 898/3422/2 1 0 898 3 1 However, subsequently in the year 1952 the Settlement proceedings began. According to the petitioners, khasra Nos.896/1, 889 and few other khasras were converted into new Khasra numbers bearing Khasra Nos.1137, 1144, 1145 measuring 39 bighas 3 biswas. Furthermore, according to them, instead of showing these khasras as belonging to them, the Settlement Officer entered these khasras as “Charagarh land”. Shri Narain expired on 08.01.1970. Thereafter, in 1971 his widow and his sons filed a suit for declaration and correction in the revenue record before the learned Assistant 3 Collector. Vide order dated 27.04.1979, the learned Collector dismissed the suit. Thereafter, the petitioners filed an appeal before the learned RAA. However, vide order dated 23.12.1985, the learned RAA dismissed their appeal. Consequently, they filed a second appeal before the learned Board. However, vide judgment dated 02.12.1987, the learned Board rejected the second appeal. Hence, this petition before this Court. Mr. N.K. Maloo, the learned counsel for the petitioners, has raised following contentions before this Court : firstly, chapter VIII of the Revenue Act ('The Act' for short) deals with settlement proceedings. The powers of the Settlement Officer are limited only to carrying out an economic survey and to deal with soil classification. The Settlement Officer does not have the power to change the nature of the land. Since the land in dispute, namely Khasra Nos.1137, 1144 & 1145, were under the khatedari rights of the petitioners, the Settlement Officer could not have declared the said land as “Charagarh”, thereby changing the vary nature of the land. Therefore, the settlement officer has overstepped the jurisdiction vested in him. 4 Secondly, the courts below have failed to appreciate the fact that the respondent State had admitted the petitioners' claim that khasra Nos.1137, 1144 & 1145 belong to them. Thus, there was no need for the petitioners to prove this fact before the courts below. In order to buttress this contention, the learned counsel has relied upon Section 58 of the Evidence Act and on the case of Vice-Chairman, Kendriya Vidyalaya Sangathan & Anr. Vs. Girdharilal Yadav {(2004)6 SCC 325}. Thirdly, in the alternate, he has contended that the State has not specifically denied the averments made by the petitioners in the plaint that khasra Nos.1137, 1144 and 1145 were carved out of khasra Nos.896/1, 889 & few other khasras and the land belonged to the petitioners. According to the learned counsel, Order 8 Rule 3 of the C.P.C. requires that there should be a specific denial by the defendant of the allegations made by the plaintiff. Fourthly, Ex.P/1, the report of the Tehsil Revenue Accountant ('the TRA' for short) also proves the fact that khasra Nos.1137, 1144 & 1145 which belonged to the petitioners were, 5 subsequently, recorded as “Charagarh” land during the settlement proceedings. Lastly, Annexure-10, the Milan Kshtrephal document, clearly proves that khasra Nos.1137, 144 & 1145 were the new numbers assigned to the old khasra Nos.896/1, 889 and few other khasras. But, the learned counsel has frankly conceded that the Milan Kshtrephal (Annx- 10) was not submitted before the courts below, but has been submitted only before this Court. On the other hand, Mr. S.D. Khaspuria, the learned Additional Government Advocate, has contended that the scope of jurisdiction under Article 227 of the Constitution of India is extremely limited one. The concurrent findings of fact given by the three courts below namely, the Assistant Collector, the RAA and the Board, cannot be disturbed in a jurisdiction under Article 227 of the Constitution of India. Secondly, before the Court can enter into the question regarding the jurisdiction of the Settlement Officer, it was imperative for the petitioners to prove the fact that old khasra Nos.896/1, 889 and few other khasra numbers were 6 changed into the new khasra Nos.1137, 1144 & 1145. According to the subordinate courts, the petitioners had miserably failed to prove this fact. In fact both, according to the Assistant Collector and according to the learned Board, petitioners had not submitted any document to prove that khasra Nos.1137, 1144 & 1145 were the new numbers given to the old khasra Nos.896/1, 889 and few other khasra numbers. Thirdly, averments made in para 4 of the plaint were emphatically denied by the State in its written statement. Therefore, the contention that the State had admitted this fact is misplaced. Fourthly, the rigorous of Evidence Act do not apply to a quasi-judicial body like the Assistant Collector, the RAA and the Board of Revenue. Merely because pleadings may be wanting, it would not bound the State. Fifthly, the settlement proceedings were done in the year 1952 and khasra Nos.1137, 1144 & 1145 were declared as “charagarh” land. Therefore, on the coming of the Rajasthan Tenancy Act in the year 1955, the petitioners were not 7 recorded as khatedars of the land in dispute. Therefore, they cannot be given a khatedari rights under Section 15 of the Tenancy Act. In fact, according to Section 16 of the Tenancy Act, no Khatedari rights can be given on pasture land. Therefore, the learned counsel has supported the impugned orders and the judgment. We have heard the learned counsel for the parties, have perused the impugned orders and have gone through the record which has been placed before this Court. It is, indeed, a settled principle of law that it is for the plaintiff to prove his case. In his plaint, the petitioners had averred in para 3 that the old khasra numbers of the land which belong to them is as follows : खसरा नं0 रकबा खसरा नं0 रकबा बीघा िबःवा बीघा िबःवा 889 2 3 896/1 36 3 898/1 2 14 898/2 1 2 898 0 2 800 0 5 898/3414 1 4 898 1 13 898/3421 1 8 904 1 13 905 0 16 900 0 15 898/3422/2 1 0 898 3 1 8 In para 4 they further claimed as under : यह िक सेटलमेंट के दौरान में उपरोƠ आराजी में से खसरा नम्बर 898/1 रकबा 36 बीघा 3 िबःवा में खसरा नम्बर 889 रकबा 2 बीघा 3 िबःवा व उपरोƠ अन्य आराजी का कुछ भाग िजसके मौजूदा नम्बरान 1137 रकबा 2 बीघा 3 िबःवा व नम्बर 1145 रकबा 35 बीघा 3 िबःवा व खसरा नम्बर 1144 रकबा 1 बीघा 15 िबःवा इस तरह कुल 39 बीघा 3 िबःवा पर गलती से रेवेन्यु रेकाडर् में चारागाह दजर् हो गया। In the written statement, filed by the State, para 3 was accepted. Therefore, what the State has accepted is the fact that the old khasra numbers did belong to the petitioners. But while replying to para 4 of the plaint, the State has clearly stated “यह िक अजर् दावे का मद नं.4 ःवीकार नहीं है।“ Thus, the State had emphatically denied the contents of para 4. However, it had further stated as follows “वरवƠ बंदोबःत यह आराजी खाली पडी हईु थी अलाटीयों Ʈारा िकसी ूकार का कब्जा नहीं था। तथा भूिम का कोई लगान नहीं िदया था ऐसी अवःथा में अलाटमेंट ःवतः ही िनरःत हो जाता है एवं िनयमानुसार ही बन्दोबःत िवभाग ने चारागाह घोिषत करने की कानूनी कायर्वाही िनयमानुसार की है तथा तब से आज तक यह भूिम चारागाह ही चलती आ रही है और मौके पर अब भी चारागाह में काम आ रही है।“ 9 A bare perusal of the plaint and the written statement, reproduced above, clearly show that the State had not admitted the averments made in para 4 of the plaint. In fact, it had emphatically and absolutely denied the contents of para 4. Therefore, the contentions raised by the learned counsel for the petitioners that once a fact has been admitted, need not be proved is unsustainable in the facts and circumstances of the present case. Since the State had denied the contents of para 4, it was for the petitioners to prove that khasra Nos.1137, 1144 & 1145 were the new numbers of old khasra Nos.896/1, 889 and other khasra numbers. Neither before the Assistance Collector, nor before the learned RAA, nor before the Board the Milan Kshtrephal document was ever produced. This is a fact which has been noted both by the learned Collector and by the learned Board. Therefore, before the Courts below, the petitioners had failed to establish the fact that old khasra numbers Nos.896/1, 889 and few other khasra numbers were give the new khasra Nos.1137, 1144 & 1145. In the absence of any primary evidence on this point, the learned courts below were justified in holding that the petitioners have not established his case. 10 Of course, the learned counsel has drawn the attention of this Court on Ex.P/1, the report of the Tehsil Revenue Accountant. However, a bare perusal of Ex.P/1 clearly reveals that although it begin with the line "नकल िरपȾट ौी ौी राम सक्सेना T.R.A. तहसील सागांनेर िद.30.06.69”, but the rest of the document is nothing but a reproduction of an application moved by the petitioners before the concerned authority. In fact, Shri Ram Saxena, T.R.A. has merely pointed out that the petitioners have submitted an application contents of which are reproduced and has written the last line as "अवलोकनाथर् एवं आदेश हेतु पेश है". Therefore, Ex.P/1 is nothing but a reproduction of an application filed by the petitioners which has been forwarded by Shri Ram Saxena, T.R.A. seeking instructions and directions for further proceedings. Thus, even Ex.P1 does not substantiate the case of the petitioners that khasra Nos.1137, 1144 & 1145 were the new numbers of khasra Nos.896/1, 889 and few other khasras and therefore, they belong to them. Hence, the Board of Revenue was justified in not relying on this document. Despite the fact that the Milan Kshtrephal document was readily available to the 11 petitioners when they filed their suit in the year 1971, the said document was never produced by the petitioners to substantiate their case. Surprisingly, the said document was not even produced before the RAA and the learned Board. The said document has been produced for the first time in the writ petition before this Court. But the document cannot be looked into at this belated stage. Since the document was not available before the courts below, the reasoning of the courts below cannot be faulted. The jurisdiction of this Court under Article 227 is, indeed, an extremely limited one. Recently, in the case of Shamshad Ahmad & Ors. Vs. Tilak Raj Bajaj & Ors. {(2008)9 SCC 1} the Hon'ble Supreme Court has observed as under : “Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or 12 tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.” A bare perusal of the order dated 27.04.1979 clearly reveals that the learned Collector had dealt with both the testimonies of the witnesses as well as with the documentary evidence. The learned Collector has observed that Ratan Lal (PW.4) had clearly stated that the file of the allotment is not available with him. In his cross-examination, he had also admitted that “what are the new numbers of Khasra Nos.896/1, 889 and few other khasras can only be known, by looking at Milan Kshtrephal document. The said document was made in Smvt. year 2009.” He has further admitted that “he has not brought the khasra girdwaris of the said khasra numbers for Smvt. years 2009 to 2014. Even, the subsequent khasra girdwaris from Smvt. year 2015 onwards were not brought by him.” Ultimately, the learned Collector has concluded that the petitioners have not been able to produce any record or oral testimony to show their possession over the land in dispute. Once the evidence has been discussed in detail, and finding was given on question of fact, it is not for this Court to disturb the 13 said finding in its jurisdiction under Article 227 of the Constitution of India. Similarly, the learned Board has clearly noticed that the petitioners did not produce any documents which show that in fact, khasra Nos.896/1, 889 and few other khasras were converted into the new khasra Nos.1137, 1145 & 1144. In fact, according to the learned Board, khasra girdwaris of Smvt. year 2009 shows the khasra numbers as 1070, 1071, 1077 and 1079. The learned Board has further observed that when the petitioners were asked “as to under which settlement proceedings the land was entered into as “charagarh” land, they could not satisfy the learned Board.” The learned Board has also noticed the fact that the petitioners had brought on record only khasra girdwaris of Smvt. year 2009 and they have not been able to prove that khasra Nos.896/1, 889 and few other khasras were converted into new Khasra Nos.1137, 1144 & 1145. It has specifically noted that “the Milan Khshtrephal document was never placed before it.” Since the impugned judgment dated 02.12.1987 has threadbare discussed the oral and the documentary evidence, no perversity or illegality can be detected in the said impugned judgment. 14 It is too late in the day for the petitioners to submit the Milan Kshtrephal before this Court and to pray that the case should be remanded to the Assistant Collector for reappreciation of the evidence. It was the petitioners' duty to produce the said document, which was readily available with them, at the very first opportunity. Having failed to do so, they cannot be permitted plug in the lacunae at such a belated stage. In the light of the facts and circumstance narrated above and for the reasons stated above, this writ petition has no force. Thus, it is, hereby, dismissed. No order as to costs. (R.S.CHAUHAN)J. Manoj Solanki