1 Nathuram & Ors.Vs. Barsingharam & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : Nathuram & Ors. Vs. Barsingharam & Ors. S.B. CIVIL WRIT PETITION NO.8/2004 UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA. Date :: 24th May, 2007 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr.J.M. Bhandari, for the petitioners. Mr.L.R. Punia, for the respondents. By the Court: By way of filing present writ petition, petitioners are challenging the impugned order dated 24th May, 2001 (Annexure-4) passed by Board of Revenue and prayed for confirming the judgment dated 26th August, 1993 passed by the Additional Commissioner, Jodhpur in an appeal filed by the petitioners. 2 Nathuram & Ors.Vs. Barsingharam & Ors. According to the facts narrated in the writ petition, one Kishorilal Paliwal was the khatedar of the land situated in khasra No.1460 measuring 48 bighas 11 biswas in village Mandla, Tehsil Phalodi, District Jodhpur. The petitioners are sons of late Kishorilal Paliwal and after his death, being his successors they became owner of the aforesaid land. As per contention of the petitioners, the mutation was made in favour of respondents Nos.1 and 2 in the year 1986, but it was not in the knowledge of petitioners. The said mutation was made on the basis of sale deed, which was alleged to be made by late Kishori Lal Paliwal, therefore, the said mutation was completely made in the back of petitioners, therefore, against the said order of mutation, the present petitioners preferred an appeal in the court of Sub-Divisional Officer, Phalodi. The said appeal filed by the petitioners was dismissed after hearing both the parties vide judgment dated 06th May, 1989 on the ground that after a delay of 20 years, no appeal challenging the mutation, which was affected on 30th June, 1966 can be preferred . 3 Nathuram & Ors.Vs. Barsingharam & Ors. Against the said judgment dated 06th May 1989 passed by Sub-Divisional Officer, Phalodi – petitioners further preferred an appeal before the Additional Commissioner, Jodhpur in which notices were issued to the non-petitioners and after hearing both the parties, the appeal was accepted vide judgment dated 26th August, 1993 and case was remitted to the Sub-Divisional Officer, Phalodi with the direction that after recording the evidence of both the parties, more particularly, the sale deed which is said to be executed by late Kishorilal Paliwal in favour of respondents Nos.1 and 2, the matter may be decided afresh. Against the said judgment dated 26th August, 1993, the respondents Nos.1 and 2 preferred a revision petition before the Board of Revenue, Ajmer. The Board of Revenue, Ajmer vide its order dated 24th May, 2001 set aside the judgment passed by the Additional Commissioner, Jodhpur dated 26th August, 1993 and restored the judgment passed by the Sub-Divisional Officer, Phalodi. By way of filing present writ petition, the petitioners 4 Nathuram & Ors.Vs. Barsingharam & Ors. are challenging the validity of the order passed by the Board of Revenue, Ajmer dated 24th May, 2001. It is contended by learned counsel for the petitioners that learned Board of Revenue, Ajmer has committed an error while allowing the revision petition because the Additional Commissioner, Jodhpur has only remitted the case to the Sub-Divisional Officer, Phalodi for deciding the matter afresh after recording the evidence, more particularly, the sale deed executed by late Kishorilal Paliwal in favour of respondents Nos.1 and 2, therefore, there is no error in the order passed by the Additional Commissioner, Jodhpur because the Additional Commissioner, Jodhpur has passed an order for considering the entire evidence, but learned Board of Revenue while relying upon the contention that the disputed land was sold by late Kishorilal Paliwal in the year 1966, the mutation was made in favour of respondents Nos.1 and 2. Learned counsel for the petitioners also contended that learned Board of Revenue, Ajmer accepted this contention that the sale deed was executed in favour of respondents Nos.1 and 2 by late 5 Nathuram & Ors.Vs. Barsingharam & Ors. Kishorilal Paliwal without any documentary evidence. Neither the original sale deed has been produced on record before any of the authorities nor before this Court by the respondents. During the course of arguments, a pointed query was made to counsel for the respondents and time was granted to produce on record the said original sale deed. It is submitted by the learned counsel for the respondents that the said sale deed is not available with the respondents because the same has been filed before the Gram Panchayat at the time of mutation proceedings. In this view of the mater, it is obvious from the facts that original sale deed was not filed before any of the courts below so also it has not been produced on record in this writ petition, therefore, the whole basis for verification in the mutation proceedings is lacking. The learned Board of Revenue, Ajmer obviously has committed an error while deciding this case in absence of said sale deed. 6 Nathuram & Ors.Vs. Barsingharam & Ors. I have perused the entire record of the case as well as the impugned order passed by the Board of Revenue, Ajmer dated 24th May, 2001. In my opinion, if mutation was made in favour of respondents Nos.1 and 2 by the Gram Panchayat on the basis of document, then obviously it was duty of the respondents Nos.1 and 2 to file the copy of the said document for perusal of the courts below or before this Court also. But admittedly the said document is not filed by the respondents Nos.1 and 2 in any of the proceedings, therefore, in absence of such document, it cannot be presumed that the said document is in existence. For proper adjudication upon a particular document, it is the first requirement that document must be produced before the Court. But here in this case, the original sale deed is not produced by the petitioners before this Court or before the courts below, therefore, the Additional Commissioner, Jodhpur was right in remitting the case to the Sub- Divisional Officer, Phaloti for deciding afresh after taking into consideration the entire evidence including the original 7 Nathuram & Ors.Vs. Barsingharam & Ors. sale deed. In these circumstances, the order passed by the Board of Revenue, Ajmer dated 24th May, 2001 is not based upon cogent reasons, therefore, the same is set aside and the order passed by the Additional Commissioner, Jodhpur dated 26th August, 1993 is restored and further the Sub- Divisional Officer, Phalodi is directed to decide the matter afresh after calling the record of Gram Panchayat by which the mutation was made in favour of respondents Nos.1 and 2 on the basis of sale deed which is said to be executed by late Kishorilal Paliwal situated in khasra No.1460 measuring 48 bighas 11 biswas in village Mandla, Tehsil Phalodi, District Jodhpur. With these observations, the writ petition is allowed. (GOPAL KRISHAN VYAS), J. A.K. Chouhan/-