MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 1 MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL (W) NO. 1492/99) Dated:- 26th March, 2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. B.L.Purohit, for the appellants. Mr. Sandeep Bhandawat, Government Counsel for the respsondents no. 1 to 3. Mr. Sudhir Sharma, for the respondents no. 4/1 to 4/4. None present for the respondents no. 5 and 6. BY THE COURT(PER HON'BLE MR.SANGEET LODHA,J.) 1. This special appeal is directed against order dated 9.9.99 passed by the learned Single Judge of this court, whereby the writ petition preferred by the appellants assailing the validity of judgment dated 18.7.95 passed by the Board of Revenue dismissing the second appeal preferred by the appellants and confirming the judgment and decree dated 17.1.89 passed by the Revenue Appellate Authority(Second),Jodhpur has been dismissed. By order dated 17.1.89, the appeal preferred by the appellants against the judgment and decree dated 4.2.81 passed by the Sub Divisional Officer, Jaisalmer in favour of the plaintiff late Shri Peera Ram, who is represented by his legal representatives as respondent nos. 4/1 to 4/4 herein, was confirmed by the Revenue Appellate Authority. 2. The brief facts in nutshell are that late Shri Peera Ram filed MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 2 a suit for possession u/s 183 of the Rajasthan Tenancy Act, 1955 (in short “the Act of 1955” hereinafter) against Shri Multana Ram, who is represented by his legal representatives, the appellants no. 1 to 7 herein, Shri Ajeeta( brother of Multana Ram),Doongra s/o Sultana and Harku w/o Sultana alleging them to be tresspasser over 46 bighas and 8 biswas land comprising Khasra no. 233 situated at village Sagra, Tehsil and District Jaisalmer. The plaintiff Peera Ram claimed himself to be khatedar tenant of the land in question. The suit was contested by the defendant Shri Multana Ram by filing a written statement wherein the allegations made in the suit were denied and he claimed himself to be khatedar tenant of the land. The learned trial court framed the issues and parties to the proceedings led their evidence. After due consideration, the suit preferred by the plaintiff Shri Peera Ram was decreed by the trial court vide judgment and decree dated 4.2.81. Aggrieved by the said judgment and decree, the appellants herein preferred an appeal before the Revenue Appellate Authority which was dismissed vide judgment and decree dated 4.2.87. A second appeal preferred by the appellants was also dismissed by the Board of Revenue by the order dated 17.1.89. In these circumstances, the appellants assailed the validity of the aforesaid orders before this court by way of writ petition . MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 3 3. Before the learned Single Judge , it was contended on behalf of the appellants that the suit filed by the plaintiff was time barred. It was contended that that the ARO had no jurisdiction to confer khatedari rights upon the plaintiff Shri Peera Ram. It was further contended that on the basis of the khatedari rights conferred upon the plaintiff Shri Peera Ram no decree for possession could have been passed in his favour inasmuch as, the order passed by the ARO holding the plaintiff Shri Peera Ram to be khatedar tenant of the land in question is nullity in eye of law. 4. After due consideration, the learned Single Judge found that the concurrent finding arrived at by the three courts below after due consideration of the oral and documentary evidence does not suffer from any error either on facts or law or jurisdictional error which can be corrected by this court under Article 227 of the Constitution of India. On the question of limitation, the learned Single Judge opined that since the appellants have committed tresspass over the land in question on 2.2.78 and immediately thereafter, the suit was filed in 1978 itself on the basis of the ARO's decision therefore, the same cannot be said to be barred by time. Regarding the order passed by the ARO , the learned Single Judge observed that the appellants' challenge to the same failed and thereafter, it was MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 4 not carried further and the same attained finality. The learned Single Judge categorically held that by no stretch of imagination, it can be said that ARO's order was a nullity. Accordingly, the writ petition has been dismissed by the learned Single Judge. 5. It is submitted by the learned counsel for the appellants that the main contention of Shri Peera Ram and the appellants before the courts below was that the plaintiff Shri Peera Ram has not been able to prove himself to be khatedar tenant of the land comprising Khasra no.233 but, the same has not been considered in correct perspective by all the courts below so also the learned Single Judge. It is submitted by the learned counsel that the revenue entries made under the orders of ARO dated 27.7.71 could not confer khatedari rights upon Shri Peera Ram in the land in question. According to the learned counsel since the order dated 27.7.71 was obtained by the plaintiff by committing fraud and concealing the relevant facts and in collusion with ARO therefore, the same is rendered nullity in eye of law. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of “T. Vijendradas and Anr. vs. M.Subramanian & Ors.”, (2007) 8 SCC, 751. It is submitted by the learned counsel that the finding of the courts below that Shri Peera Ram is khatedar tenant of the land is based on no evidence. That apart, it is submitted by the learned counsel that MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 5 the entries in revenue record does not confer any title and therefore, the decree passed in favour of plaintiff Shri Peera Ram on the basis of the entries in revenue record which were made on the basis of ARO's order is not sustainable in eye of law. The reliance in this regard has been placed by the learned counsel on decisions of the Hon'ble Supreme Court in the matters of “Narain Prasad Aggarwal(D) by L.Rs. vs. State of M.P.”, 2008(1) WLC (SC) Civil, 214, “Faqruddin (Dead) through L.Rs. vs. Tajuddin (Dead) through L.Rs.”, 2008(2) WLC(SC) Civil, 584 and “Suraj Bhan & Ors. vs. Financial Commissioner & Ors.”, 2007(6) SCC, 186. It is submitted by the learned counsel that the learned Single Judge has committed an error in not considering the question of jurisdiction of ARO in passing the order dated 27.7.71 holding the plaintiff Shri Peera Ram as khatedar tenant of the land in question. The learned counsel submitted that the findings arrived at by the Board of Revenue is based on wrong assumption that the appellants had admitted the khatedari rights of the plaintiff Shri Peera Ram. Relying upon the report of the Inspector (Annexure 1) and the statement of Shri Peera Ram (Annexure 2), it is submitted by the learned counsel that Shri Multana Ram was in possession of the land comprising khasra no. 233 is apparent on the face of record therefore, Shri Peera Ram cannot be held to be khatedar tenant of khasra no. 233 and MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 6 the decree passed against Shri Multana Ram and his L.Rs. is absolutely without jurisdiction and nullity in eye of law. 6. Per contra, it is submitted by Mr.Sudhir Sharma, the learned counsel appearing on behalf of the respondent nos. 4/1 to 4/4 that the learned Single Judge has rightly declined to interfere with the concurrent finding arrived at by the three courts below on the basis of evidence on record. The learned counsel submitted that the finding arrived at by the learned trial court is based on oral as well as documentary evidence on record including the compromise submitted by the parties in the court of Chief Judicial Magistrate in respect of a criminal case registered for offence u/s. 447 IPC. It is submitted by the learned counsel that on the basis of the documents on record, the possession over the land in question of Shri Peera Ram cannot be disputed. The learned counsel submitted that the order passed by the ARO holding Shri Multana Ram to be a khatedar tenant of the land and the entries made in the revenue record in pursuance thereof have not been challenged by the appellants by way of any appropriate proceedings before the court of competent jurisdiction and therefore, they cannot be permitted to contend that the ARO's order holding Shri Multana Ram as khatedar tenant was obtained by concealing the facts and committing fraud. It is submitted by the learned counsel that MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 7 it was not even the case of the appellants before the learned trial court or the Appellate Court that the order passed by the ARO is without jurisdiction therefore, no such objection can be permitted to be raised for the first time before this court. 7. Mr. Sandeep Bhandawat, Government Counsel submitted that the documents sought to be relied upon by the appellants as Annexure 1 and Annexure 2 were never part of the record of the courts below therefore, the contentions sought to be raised by the appellants on the strength of these documents cannot be entertained. That apart, it is submitted by the learned counsel that on the basis of these documents it cannot be said that the appellants were in possession of the land in question even prior to 1978. 8. We have considered the rival submissions of the learned counsel for the parties , perused the impugned order and other material on record. 9. Admittedly, the suit for possession was preferred by the plaintiff Shri Peera Ram claiming himself to be khatedar tenant of the land in question. The plaintiff's claim of khatedari rights in the land question was denied by the defendants , the appellants herein. On the basis of the pleading of the parties, a specific issue as to “Whether the plaintiff is khatedar of the disputed land?” was framed by the learned trial court. The parties led MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 8 their evidence and after due consideration of the evidence on record, the learned trial court has decided the said issue in favour of the plaintiff and against the defendants. A perusal of judgment dated 4.2.81 rendered by the learned trial court reveals that it has arrived at the finding that the plaintiff is khatedar tenant of the land in question not solely on the basis of the entries in the revenue record entered on the basis of the order passed by the ARO dated 27.7.81 but, also on the basis of other oral and documentary evidence produced on record. The findings arrived at by the learned trial court has been affirmed by the Revenue Appellate Authority after re-appreciation of the evidence on record and the same has been further confirmed by the Board of Revenue. As laid down by the Hon'ble Apex Court in the matter of “Sadhna Lodh vs. National Insurance Company Limited & Anr.” (2003)3 SCC, 524, the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution of India is confined only to see whether inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of record much less of an error of law. In exercising the supervisory jurisdiction, the High Court does not act as an appellate court and it is not permissible to a High Court to review or reweigh the evidence upon which the inferior court or tribunals purports to have passed the order MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 9 or to correct error of law in the decision. In this view of the matter, in our considered opinion, the learned Single Judge has rightly declined to interfere with the concurrent finding arrived at by the courts below in exercise of the jurisdiction under Article 227 of the Constitution of India. 10. In T.Vijendradas's case (supra) relied upon by the learned counsel for the appellants , it has been held by the Hon'ble Supreme Court that if any judgment order order is obtained by fraud, it cannot be said to be judgment or order in law and the same is rendered nullity and it would be wholly inequitable to confer a benefit on a party who is beneficiary thereunder. There is no quarrel with the proposition of law laid down by the Hon'ble Supreme Court as aforesaid , but, in our considered opinion, it has no application on the facts of the present case. It was not the issue before the learned trial court that the order dated 27.7.71 has been obtained by the plaintiff concealing the facts or by committing fraud. No evidence whatsoever was produced by the appellants before the learned trial court to establish that the said order has been obtained by the plaintiff by concealing the facts and committing the fraud in collusion with the authority concerned. A perusal of the written statement filed on behalf of the plaintiff reveals that the jurisdiction of the ARO to pass the order dated 27.7.71 was not even questioned on their behalf. No MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 10 such contention was raised before the appellate courts either. In this view of the matter, the contention sought to be raised by the appellants before this court for the first time without there being any foundation of facts and evidence on record cannot be entertained by this court at this stage. 11. Coming to the contention of the learned counsel that the entries in the revenue record does not confer any title therefore, the decree passed in favour of the plaintiff Shri Peera Ram on the basis of entries in the revenue record which were made on the basis of ARO's order is not sustainable in eye of law, it is to be noticed that the decree for possession holding the plaintiff Shri Peera Ram as khatedar tenant of the land in question has not been passed by the learned trial court solely on the basis of the entries in the revenue record made on the basis of ARO's order. As noticed above, the finding is based on other oral and documentary evidence on record as well. Moreover, the appellants have not been able to establish their title over the land in question by producing any cogent evidence therefore, the decree for possession passed by the trial court in favour of the plaintiff, the khatedar tenant of the land in question cannot be faulted with. Admittedly, the question of title has not been decided by the courts below but, the decree or possession has been passed in favour of the plaintiff , a khatedar tenant against MST. HARKU & ORS. VS. BOARD OF REVENUE & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 1492/99) 11 the defendants, the appellants herein, who are held to be tresspasser over the land in question. In this view of the matter, on the facts and circumstances of the case, the judgments of the Hon'ble Supreme Court cited by the learned counsel laying down that an entry in the revenue record does not confer title on a person whose name appears in the record of rights has no bearing in the instant case. 12. For the aforementioned reasons, we are of the considered opinion that the order impugned passed by the learned Single Judge does not suffer from any error warranting interference by us in this intra court appeal. 13. In the result, the special appeal fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-