DBSAW NO.50/07. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T D.B. CIVIL SPECIAL APPEAL (WRIT) NO.50/2007. IN S.B. CIVIL WRIT PETITION NO.5467/1989. Chhitar Lal Vs. Smt.Ram Kanwari & Ors. Date of order:- May 19, 2008. PRESENT HON'BLE THE CHIEF JUSTICE SHRI NARAYAN ROY HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Shri N.K. Maloo for the appellant. Shri Kamlakar Sharma for the respondents. ***** BY THE COURT:- This appeal is directed against the judgment of the learned Single Judge dated 28/7/2006 whereby the writ petition of the appellant was dismissed. 2) Appellant in the writ petition had challenged the judgments passed by the court of Assistant Collector (I) Bundi dated 28/9/1978, Revenue Appellate Authority dated 30/3/1981 and Board of Revenue dated 3/5/1989. The Assistant Collector vide his order dated 28/9/1978 decreed the suit for ejectment filed by respondent Gopal and when appeals thereagainst were filed by the appellant before the DBSAW NO.50/07. 2 Revenue Appellate Authority Kota and the Board of Revenue, Ajmer, both were dismissed successively by the orders referred to supra. The writ petition was dismissed by the learned Single Judge on the ground that declaratory suit filed by respondent Gopal against Smt.Kalyani, daughter-in-law of the land holder Narain, was decreed by the trial court in his favour vide judgment dated 4/6/1962 and it was thereafter that the suit for ejectment was filed by respondent Gopal and appeals there against were dismissed by the Revenue Appellate Authority and Board of Revenue. 3) We have heard Shri N.K. Maloo, learned counsel for the appellant and Shri Kamlakar Sharma, learned counsel for the respondents. 4) Shri N.K. Maloo, learned counsel for the appellant has argued that learned Single Judge erred in law in not appreciating that so-called gift-deed dated 21/1/1954 was null and void being violative of Sections 19 and 20 of the Bundi Tenancy Act which provided that any transfer of land without any prior permission of the competent authority, would be null and void. It was argued that when the suit or ejectment was filed by respondent Gopal, burden lay on him to prove the fact that prior permission of the competent authority was obtained before execution of the gift deed. It was argued that the learned Single Judge erred in law in observing that this objection DBSAW NO.50/07. 3 was taken by the appellant for the first time in the writ petition whereas, specific issue to that effect was framed by the trial court as Issue No.1 which however was wrongly decided by the trial court against the appellant and was thereafter illegally upheld by the subsequent higher courts. It was argued that the learned Single Judge wrongly held that the judgment passed in the suit filed by respondent Gopal would bind the appellant whereas that suit was filed only against Smt.Kalyani and the appellant was not party in that suit and the Board of Revenue had categorically rejected the argument raised in that behalf by the respondents. The learned Single Judge was not right in deciding the present matter against the appellant on the basis of that judgment & decree. It was argued that learned Single Judge erred in law in holding that appellant could not prove his possession whereas the fact was that the suit itself was filed for ejectment of the appellant for recovery of possession from her. Learned counsel therefore submitted that the matter requires re-consideration as none of the courts below have properly adjudicated upon the controversy and have failed to consider very many significant aspects of the matter. It was lastly argued that appellant was gifted the subject property by Narain, separately in the year 1950 though by registered gift deed, and on that basis, land was entered in the khatedari in the year 1955. It was therefore prayed that when the suit DBSAW NO.50/07. 4 was filed by respondent earlier in 1960, this fact was very much in existence and the respondents having not impleaded appellant as party to that suit, she could not be dispossessed of the land in dispute. 5) We have given our thoughtful consideration to the arguments so raised and perused the impugned judgment as also the other material forming part of the record. 6) In so far as the argument with regard to non compliance of Sections 19 and 20 of the Bundi Tenancy Act is concerned, we find that the learned trial court while deciding Issue No.1 has recorded a categorical finding that when Sub-Registrar registered the gift- deed, it called for a specific report from the Office Kanongo as to the legal requirements for registering the gift deed and the office kanongo reported that there was no lacunae in the gift deed proposed to be registered. On that basis, learned trial court recorded a finding that there was sufficient proof that prior permission of the Divisional Commissioner was obtained. The appellant has alleged that prior permission was not obtained and she did not adduce any evidence to that effect as to why the report of the office kanongo could not be accepted as valid proof thereof by the trial court. Moreover, when appellant herself claims this land on the basis of gift, he is precluded from raising this argument. DBSAW NO.50/07. 5 7) Learned trial court also on the question of adverse possession found that the khasra girdavaris of Samwat 2011-2017 which correspondence to the year 1956-1960 does not reflect as to who was in possession of the land. Learned trial court on the basis of consideration of the record held that till 1955, there was no dispute between plaintiff and the defendant as to possession, even then, learned trial court did not find possession of the appellant over disputed land as proved. 8) On consideration of the judgment of the Revenue Appellate Authority and the Board of Revenue, we find that the courts have recorded a finding that appellant neither raised plea of adverse possession nor that of limitation against the plaintiff in her written-statement. Those arguments having not been specifically raised, the courts below could not be expected to render findings thereupon. This matter, as would be evident from the aforesaid, has concurrently been decided against the appellant by all the courts below, which findings have now been upheld by the learned Single Judge. Supreme Court in Sadhana Lodh Vs. National Insurance Co.Ltd. and another : (2003) 3 SCC 524 while considering the scope of interference by this court in a writ of certiorari under Article 227 of the Constitution in para 7 of the report observed as under:- DBSAW NO.50/07. 6 “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, muchless of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.” 9) In view of the law settled by the Supreme Court in Sadhana Lodh, supra and findings of fact recorded by all the courts below as upheld by the learned Single Judge, we do not find any scope of interference in the present matter by this Court in exercise of its supervisory jurisdiction. The appeal is therefore dismissed. (MOHAMMAD RAFIQ), J. (NARAYAN ROY), CJ. anil