1 4 S.B. CIVIL WRIT PETITION NO.7461/2009. Gaffar Khan Vs. Board of Revenue & Ors. Date of Order :: 29th July 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Suresh Shrimali, for the petitioner. ... BY THE COURT: Having heard the learned counsel for the petitioner and having perused the material placed on record, this Court is unable to find any jurisdictional error in the orders as passed by the Board of Revenue on 30.03.2005 (Annex.3) and on 07.03.2008 (Annex.4) rejecting respectively the second appeal and review application as filed by the plaintiff-petitioner. The revenue suit bearing No. 56/2000, as filed by the petitioner purportedly under Sections 188, 92A, 88, 89 and 125 of the Rajasthan Tenancy Act, came to be decreed by the learned Trial Court granting him khatedari rights in the land in question by its judgment and decree dated 24.05.2002. However, the decision of the learned Trial Court was disapproved by the learned Revenue Appellate Authority, who, by its judgment and decree 10.09.2002, allowed the appeal bearing No. 54/2002 preferred by the respondent State. The learned Revenue Appellate Authority held that the suit filed by the petitioner was directly hit by the principles of 2 res judicata for the petitioner having previously filed a suit bearing No. 1/1985 in relation to the land in question that was earlier comprised in khasra No. 6 and now is comprised in khasra No. 14; and the said suit was dismissed by the learned Trial Court on 30.10.1985, the first appeal was dismissed on 15.06.1994, the second appeal was dismissed on 10.09.1997, and the writ petition bearing No. 380/1998 preferred by the petitioner to the High Court was also dismissed on 02.08.2000. The learned Appellate Court found the petitioner's claim in relation to the land in question having been heard and finally decided against him in the said former suit right upto this Court. The second appeal as taken by the plaintiff-petitioner against the aforesaid judgment and decree dated 10.09.2002 came to be dismissed by the Board of Revenue by its judgment dated 30.03.2005. A submission was made before the Board of Revenue that the former suit was filed on the basis of title whereas the present suit had been filed on the basis of adverse possession and the plea of adverse possession as advanced in this suit could not have been taken earlier. The Board of Revenue did not agree with this submission particularly with the observations that mere use of the expression 'adverse possession' would not be decisive 3 because the claim of the plaintiff-petitioner in both the suits had essentially been on the basis of the alleged possession over the land in question and the pleadings were also substantially similar. The petitioner moved a review application that has also been rejected by the Board of Revenue on 07.03.2008. Seeking to challenge the orders aforesaid, it has been contended that the earlier suit having been based on title and the later one having been filed on the basis of adverse possession, the later suit was not hit by the principles of res judicata. It is submitted that the plea of adverse possession could not have been taken in the former suit for the very nature of the said suit; and even if the former suit was dismissed, the plaintiff-petitioner was not precluded from maintaining the claim on the basis of adverse possession. The submissions remain too short of substance. Having regard to the circumstances, the case file relating to CWP No. 380/1998 has been requisitioned and it appears appropriate to reproduce the relevant part of the order passed by this Court on 02.08.2000 therein, which reads as under:- “The petitioners have filed a revenue suit in the Court of Assistant Collector, Bali, Distt. Pali u/s. 88 and 89 of Rajasthan Tenancy Act for declaration of their rights as khatedar tenant in 4 58 bigha 3 biswas of land which is part of khasra No. 6. Petitioners' case is that their father Bhure Khan was in possession of entire area of khasra No.6 measuring 133 bigha 3 biswas as on the date Rajasthan Tenancy Act came into force i.e. in Samvat 2011. However, the Tehsildar on the basis of available record has accepted the claim of said Bhure Khan of 75 bigha land only of khasra No. 6 Moja Sharhad Magar Talab but rejected his claim for remaining land measuring 58 bigha 3 biswa. Aggrieved with the rejection of the claim, the suit has been filed. Suit was dismissed by the Assistant Collector on 30.11.85 finding that plaintiff has not been able to prove his possession on the entire land comprised in khasra No.6 as on the relevant date viz. when Rajasthan Tenancy Act, 1955 came into force. The finding was affirmed by the Revenue Appellate Authority in its order dt. 15.6.94 and the same finding has been reached by the Board of Revenue by referring to documents produced by the petitioners themselves which consist of khasra Girdwari prior to period of commencement of Rajasthan Tenancy Act and after the commencement of Rajasthan Tenancy Act. It is found that he is in possession of the part of khasra No. 6 trespassers. In view of long possession the Tehsildar has already recognised tenant's rights in respect of 75 bigha of land but no claim was made out for remaining part of the land. These being finding of facts reached on appreciation of evidence are not liable to be interfered by this Court in its extraordinary jurisdiction which is not an appellate jurisdiction.” It is at once clear that in the former suit too, the claim of the petitioner had been of declaring him khatedar on the basis of alleged long possession over the land in question; and 5 such a claim was declined essentially with the finding that the alleged possession had not been anything except that of a trespasser. It has also been noticed that the father of the petitioner had otherwise been granted khatedari in relation to 75 bighas of land on the basis of the claim made but his claim in relation to the remaining land was declined. In relation to this remaining land, the petitioner had filed the said former suit and lost right up to this Court with adverse findings on the aspect of the possession. With such findings having become final, there was no occasion that the suit claiming khatedari rights in the same land on the basis of alleged adverse possession could have been tried and decreed. There appears no illegality or error in the orders impugned. There is no merit in this writ petition and the same stands rejected. (DINESH MAHESHWARI), J. //Mohan//