1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.1344/08 Ramavtar & Ors. Vs. Board of Revenue & Ors. Date of order : 14/2/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Yogesh Kumar Sharma for the petitioners. Shri D.P. Sharma for the respondent no.5. ****** Heard learned counsel for the parties. The writ petition has been filed against the judgment of the Revenue Board dated 5.2.08 whereby the judgment of the Revenue Appellate Authority was upheld by the Board of Revenue. The Revenue Appellate Authority by its judgment dated 31.7.2006 while allowing the appeal preferred by the respondent nos.3 & 4, set aside the judgment and decree dated 11.12.1989 passed by the SDO, Sikar. Learned counsel for the petitioners has argued that the appeal preferred by 2 the respondent nos.3 & 4 before the Revenue Appellate Authority was enormously time barred as the same was filed 17 years after the date of the judgment and decree. No proof of the fact has been furnished as to whether Heera Lal was then alive or had died inasmuch as no proof of the fact was furnished that respondent no.3 Rajendra was son of Heera Lal and that Smt. Phooli Devi was his widow. Learned counsel submitted that if at all the Revenue Appellate Authority wanted to entertain and allow the appeal, proper course was to remand the matter back to the SDO rather than dismissing the suit by reversing the decree. It was argued that Board of Revenue has also erred in law in dismissing the appeal preferred by the petitioner while relying on the documents that were cited before the Board of Revenue for the first time. Learned 3 counsel argued that the Board could not refer to the documents showing the joint tenancy of the predecessor in title respondent nos.3 and 4 and that of the petitioner. Learned counsel for the petitioner cited the judgment of Supreme Court in Smt. Sudha Devi vs. M.P. Narayanan & Ors.- AIR 1988 SC 1381 and argued that in case where the decree is set aside in appeal on account of insufficient ground, the proper course is to remand the matter for fresh trial. It was therefore prayed that the judgment passed by the Revenue Appellate Authority and Board of Revenue are therefore liable to be set aside. Shri D.P. Sharma, learned counsel, who has put in appearance on behalf of the respondents by way of caveat however opposed the writ petition and argued that the decree from the first court was 4 obtained by the petitioner by exercising fraud on the Court inasmuch as while Heera Lal was residing in State of Gujarat, his service was shown to have been affected by affixing of the notice on the Gram Panchayat and still the additional plea was set up that there was no person existing by the name of Heera Lal and therefore his name should be removed from the revenue records of the half of the lands of khasra nos.110, 111, 113, 114, 223, 224, 805, 669/1218 measuring 98 bighas and 16 biswas should be entered in the name of the petitioners. Learned counsel for the respondent referred to the certified copies of the khasra girdwaries of Svt. 2013, 2020-23, 2024-27, 2028-31 and even of 2041-44 argued that entire land in dispute was recorded in the joint khatedari of Rugha Ram and Kanhaiyalal S/o Suraj Mal and Gopiram S/o Bhajraj. Gopiram 5 being father of Heera Lal. Delay in the matter would not be affect their rights because possession of one joint khatedar is considered to be possession of all. Learned counsel submitted that delay in any case cannot defeat the justice where it is shown that the decree of the Court has been obtained by exercising fraud. Learned counsel submitted that when the Revenue Appellate Authority on examination of complete records has passed the order which achieves substantial justice, remand of the matter would be wholly unnecessary. Having heard the learned counsel for the parties and perused the impugned judgments as also other material forming part of the record, I find that the land in dispute has all along being shown in the joint khatedari of the predecessor in title of the petitioner and the defendant respondents. The plea set up by the 6 petitioner that no one exist by the name of Heralal in Vilage Karad and obtaining record to this effect and yet at the same time getting service affected on such non- existent Heera Lal by affixing notice on Gram Panchayat cannot be appreciated and approved. In the circumstances, I am inclined to uphold the argument that the decree indeed was procured by the petitioner by exercising fraud on the Court and even if there is some delay, reversal of decree by Revenue Appellate Authority and the Board of Revenue was not unjustified. Now when this Court on examination of relevant records finds that the land was always in joint khatedari of the predecessor-in- title of the petitioner and the contesting respondents, remand of the matter merely for the purpose of fresh trial would not be necessary. In the case of joint 7 khatedari, possession of one khatedar cannot be taken adverse to another one because possession of one is considered to be possession of all. In so far as the judgment cited by learned counsel in Smt. Sudha Devi, supra, is concerned, that of course is a case where while setting aside the ex-parte decree in appeal on ground of insufficient evidence, it was remanded for re-trial. The judgment is however distinguishable for two reasons, firstly because it was a remand and secondly the matter was remanded on the ground of insufficiency of evidence. In view of the discussion so extensively made by the Revenue Appellate Authority and the Board of Revenue and the certified copies of the jamabandi / khasra girdawari, I hardly find any good reason to uphold the argument and remand the 8 matter for retrial particularly when the judgment passed by the Revenue Appellate Authority and the Board of Revenue have attained substantial justice. I therefore do not find any good reason to entertain the writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/