[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 174 of 1998 POKAR RAM V/S STATE Mr. MANISH SHISHODIA, for the appellants Mr. R.K. SONI, for the respondent Mr. O.P.BOOB, Addl. Government Counsel Date of Order : 29.7.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- This appeal has been filed against the judgment of the learned Single Judge dated 10.09.1997, whereby the learned single judge dismissed the writ petition, challenging the order of the Board of Revenue, upholding the option given by Hardeen, surrendering Khasra Nos.187, 188, 189/1. The learned Board of Revenue had dismissed the petitioners' appeal, on the ground, that what was to be decided was, as to of whose Khatedari the land was, as on 01.01.1973, and since on that date it was in the Khatedari of Hardeen, therefore, it was rightly treated to be the land of Hardeen, and it was not understandable, as to how it could be entered in the name of the present appellants. The learned Single Judge has noticed that there [2] was a compromise decree between the parties on 05.04.1976, by which the land bearing Khasra Nos. 187, 188, 189/1 (hereinafter to be referred to as 'the land in question') came to their share, and that initially the land was a joint land of their ancestors Hukma and Girdhari. The decree passed by the competent authority having not been set aside, it was required to be taken into account. Noticing these facts, it was found, that in ceiling proceedings, it had not come on record, that the land in question was encumbered, rather, the decree has been obtained collusively, and cannot be relied upon, because it was obtained after the relevant date i.e. 01.01.1973, and that the appellants have no rights to challenge the option. Then, another question was considered about existence of well and Dhani in Khasra No. 162, and that, there is no change after the earlier option, given by Hardeen on 24.09.1985, and considering this, it has been found by the learned Single Judge, that there appears to be no justification for changing the option. According to this finding, the writ has been disposed of, by directing, the State Government to take possession of 64 bighas 16 biswas of land from Khasra No.162, and if the land has been transferred or otherwise encumbered, then the State Government is entitled to take possession of the land bearing Khasra Nos.187, 188, 189/1 and part of Khasra No.159. [3] Hardeen had also filed appeal against this part of the order, holding the State entitled to take possession of 64 bighas 16 biswas of land of Khasara No. 162, but that appeal has not been pressed today. In that view of the matter, this part of the finding, and direction, about the State being entitled to take possession 64 bighas 16 biswas of land of Khasra No.162, stands. The only question for examination, now is, as to whether the State Government is entitled to take possession of the land in question. In this regard, it would suffice to say, firstly, that Hardeen had once given option on 24.09.1985, and had thereafter changed option on 18.1.1986, and we do not find any legal authority to be available with the assessee, to change the option, once given. More so, in the peculiar circumstances of the case, viz., that the assessee had obtained a consent decree, and got the land in question declared to be of the Khatedari of the present appellants. In such circumstances, changing option, rather clearly appears to be an act of playing smart on the part of assessee Hardeen, and thereby to nullify the decree obtained by him, against himself, from the competent Court and to dupe the appellants. To say the least, even if some authority were to be found, entitling the assessee to change the option, in the circumstances mentioned above, when the decree had [4] already been obtained in the year 1976, it was not open to Hardeen, to switch over, by changing the option once given, on 24.09.1985. The result of the aforesaid discussion is, that this part of the direction, given by learned Single Judge, authorizing the State Government to take possession of the land in question, cannot be sustained, more so, when the direction about the State being entitled to take possession 64 bigha 16 biswa of land of Khasra No. 162 has already been upheld. Accordingly, the appeal is allowed, the direction given by learned Single Judge, holding the State to be entitled to take possession of Khasra No. 187, 188 and 189/1 is set aside. (KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. jpa/