1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 747 of 2001 MANGI LAL V/S MOBA RAM & ORS. Mr. JR BENIWAL, for the appellant / petitioner Mr. MEHMOOD ASLAM for Mr. BN KALLA, for the respondent Date of Order : 15.12.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. ORDER ----- By this appeal, the plaintiff-appellant seeks to challenge the order of the learned Single Judge, who upheld the order of the learned Board of Revenue by declining interference in writ jurisdiction. The necessary facts are that in the year 1986 the plaintiff filed the suit for declaration of khatedari rights and perpetual injunction alleging interalia that he purchased two parcels of lands from the defendant being Khasra No.524 and 523 by registered sale deeds on 7.12.1974 and was delivered possession, however it so happened that in the sale deed, though the boundaries were correctly mentioned but instead of Khasra No.523, 526 came to be mentioned on account of which there occurs a misunderstanding and some dispute arose, and on account of instigation of the descendants of the defendant, the defendant has started interfering in the possession, therefore, the suit was filed. The defendants contested the suit by contending interalia that though all the three lands were in possession 2 and of khatedari of defendant but then the land is continuing in possession of the defendant. It was pleaded that he borrowed a sum of Rs.2000/- from the plaintiff and mortgaged the land of Khasra No.524 and 526, for which document was got executed, but the plaintiff fraudulently instead of getting executed the mortgage deed, got executed the sale deed. It was also pleaded that right from beginning there was no mention about Khasra No.523 and thus, the suit has wrongly been filed. It was also pleaded that since the document was got prepared by the plaintiff himself, he made recitals therein of his own, interalia with this the suit was prayed to be dismissed. The learned trial Court framed only two issues; one being, as to whether the plaintiff had purchased the land of Khasra No.523, and the second issue was about relief. The learned trial Court after purporting to complete the trial, decreed the suit by deciding issue No.1 in favour of the plaintiff. In appeal, the Revenue Appellate Authority found that since in the written-statement, specific objection was taken that as a matter of fact land was mortgaged, and sale deed has been got fraudulently executed, on which aspect there was no issue framed, while the learned trial Court should have framed issue on that also, and therefore, additional issue was framed by learned Revenue Appellate Authority, and by setting aside the judgement and decree of the learned trial Court, the matter was remanded back for fresh trial in accordance with law. This order has been upheld by the learned Board of Revenue. The learned Board of Revenue also noticed the contention about the sale deed being hit by Section 42, but 3 observed that since the matter is being remanded to the learned trial Court, this can be raised before the learned trial Court. It was also observed that competency of Revenue Court to try the suit for correction of sale deed cannot be decided here, because this was not raised before the Court below, and the defendant is free to raise this point before the trial Court. Before the learned Single Judge it was contended that in view of the provisions of Order 41 Rule 24, instead of remanding the matter back to the learned trial court, when the entire material was available before the learned Revenue Appellate Authority, it could have itself framed an additional issue and decided the matter on the material available on record. This contention was not accepted by the learned Single Judge, by observing that the question raised by the defendant could not have been left open in the face of general issue No.1. It was found that evidence has not been led in that regard by the defendant, and he had to say something about mortgage, therefore, interference was declined. In our view, the impugned orders do not suffer from any error. For our satisfaction, we requested learned counsel for the appellant to make available for our perusal the reliable copy of the written-statement, and the learned counsel made available the certified copy of the written- statement. From reading of that written-statement it becomes clear, that very specific stand was taken by the defendant, that he has only mortgaged the property for a consideration of Rs.2000/-. The plaintiff fraudulently got the sale deed executed. In that view of the matter, when the learned Revenue 4 Appellate Authority has framed additional issue and has remanded the matter back to the learned trial Court to decide it on merits afresh, which order has ultimately been upheld by learned Single Judge, there is no ground to take a different view. The appeal thus, has no force and is dismissed. Since the matter is already very old, the learned trial Court is directed to decide the suit utmost expeditiously. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /tarun/