1 IN THE HGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL SPECIAL APPEAL (W) NO.739/2009 (Jaspal Singh Vs. Board of Revenue & Ors.) Date of Order : 20.01.2010 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. R.S. Choudhary, for the appellant. Heard learned counsel for the appellant. The appellant is challenging the judgment dated 27.7.2009 passed by learned Single Judge whereby the learned Single Judge dismissed the writ petition filed by the appellant - petitioner against the order dated 8.7.2009 passed by Board of Revenue, Ajmer as well as the order dated 4.6.2009 passed by Revenue Appellate Authority, Bikaner. 2 According to the brief facts of the case, agricultural land measuring 4 bigha situated in Killas Nos. 20, 21, 24 and 25 of Murabba No.237/33 at Chak 2 KYM was allotted earlier to respondent No.5 Kana Ram on 28.5.1991 and later on the said land was allotted to the appellant vide order dated 4.10.1997 also. The allotment made in favor of the appellant was challenged by the respondent Kana Ram by way of filing appeal before the Revenue Appellate Authority, Bikaner on the ground that the said small patch of land was already allotted to him on 28.5.1991. Therefore, the said land has wrongly been allotted to the appellant. Learned Revenue Appellate Authority, Bikaner while considering all aspects of the matter remanded the case to the SDO, Khajuwala vide order dated 2.9.2000 and thereafter an order was made in favor of the appellant on 5.8.2004. The order dated 5.8.2004 passed by SDO, Khajuwala was challenged by the respondent No.5 Kana Ram by way of filing appeal before the Revenue Appellate Authority. The Revenue Appellate Authority, Bikaner while considering all the aspects of the matter allowed the appeal on 4.6.2005 and set aside the order dated 5.8.2004 passed by SDO, Khajuwala in favor of the appellant for allotment of land in question. The appellant challenged the said order dated 3 4.6.2005 by way of filing revision before the Board of Revenue, Ajmer. The said revision filed by the appellant was also dismissed by Board of Revenue on 8.7.2009 while observing that the land was already allotted to the respondent No.5 Kana Ram on 28.5.1991. Therefore, order of allotment of same land to the appellant petitioner is not permissible under the law. The present appellant preferred a writ petition before this Court challenging both the orders passed by Revenue Appellate Authority dated 4.6.2005 as well as order dated 8.7.2009 passed by Board of Revenue, Ajmer. Learned Single Judge while considering all the aspects of the matter gave finding that admittedly the land in question was initially allotted to the respondent No.5 Kana Ram in the year 1991 though no entries were made in the revenue record but for any fault of revenue authorities, the allottee Kana Ram could not be penalized. The contention of learned counsel for the appellant is that though the allotment was made in favor of respondent No.5 Kana Ram in the year 1991 but actual possession was not given, therefore, allotment of land has rightly been made in his favor. Learned counsel for the appellant vehemently argued 4 that finding of all the Courts, which is upheld by learned Single Judge is erroneous on the ground that inspite of allotment made in favor of respondent No.5 Kana Ram, he was not in possession and in view of the judgment of Hon'ble Apex Court reported in AIR 1994 SC 1128 (Brij Lal Vs. Board of Revenue & Ors.), the allotment made in favor of respondent No.5 Kana Ram cannot be treated to be an allotment in his favor and the order passed by SDO is correct in all respects. We have considered the submissions made by learned counsel for the appellant. Admittedly, small patch of land in Chak No.2 KYM, Murabba No.273/33 Kila No.20, 21, 24 and 25 total 4 bigha command land was initially allotted to respondent No.5 Kana Ram vide order dated 28.5.1991 under Rule 14 of the Rules of 1975 and that order is still in existence and not challenged by the appellant. Therefore, admittedly, if an order of allotment in favor of respondent No.5 is in existence, the said land cannot be allotted to any other person so also, no right can be created in favor of any person on the basis of possession. In our opinion upon facts of this case, judgment cited by learned counsel for the appellant in Brij Lal's case (supra) is not applicable. Therefore, concurrent finding of Revenue Appellate Authority, Bikaner as 5 well as the Board of Revenue, Ajmer which is further upheld by learned Single Judge does not require any interference. Hence, this special appeal is hereby dismissed. (GOPAL KRISHAN VYAS), J (A.M. KAPADIA), J arun