IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR
S.B.Civil Writ Petition No.4972/1995
Banwari Lal Sharma & Anr.
Vs.
The Board of Revenue & Ors.
Date of Order :- 23.07.2009
HON'BLE MR.JUSTICE R.S.CHAUHAN
Mr.Ajeet Bhandari with
Mr.Kinshuk Jain, for the petitioners.
Mr.M.C. Jain }
Mr.P.K. Sharma }
Mr.Sohan Lal Sharma }, for the respondents.
The petitioners have challenged the order dated 19.05.1995 passed by the Board of Revenue (‘the Board’, for Short) whereby the learned Board has set aside the judgment dated 18.05.1993 passed by the Revenue Appellate Authority (‘the RAA’, for short) and has confirmed the order dated 10.01.1992 passed by the Assistant Collector, Bayana.
In a nutshell the facts of the case are that Smt. Rampati, the respondent No.4 and one Smt. Leela had filed a suit for declaration, partition and injunction before the Assistant Collector, Bayana with regard to their khatedari rights in land shown in Kewat No.9 & 10. The said suit was filed against Chirmola, Parasram and the State of Rajasthan. During the pendency of the suit, Smt. Leela and Chirmola expired; their legal representatives were impleaded as party. The learned Collector after framing issues and hearing both the parties, vide order dated 10.01.1992 decreed the suit. He held that the plaintiffs have got share in the land in dispute, and are entitled to share. Aggrieved by the said order, the petitioners preferred an appeal before the RAA. Vide its order dated 18.05.1993, the RAA allowed the appeal and set aside the decree passed by the Assistant Collector. Thereafter, the respondent Nos.4 & 5 filed a second appeal before the learned Board against the order of the RAA. The learned Board, vide its order dated 19.05.1995, allowed the appeal and set aside the order of the RAA. It affirmed the decree of the learned Collector. Hence, this petition before this Court.
Mr. Ajeet Bhandari with Mr. Kinshuk Jain, the learned counsel for the petitioners, has raised the following contentions before this Court: firstly, a legal issue had been raised before the learned Board with regard to the jurisdiction of the Revenue Court to try the suit. According to the learned counsel, although the suit was filed for declaration, partition and permanent injunction, but in effect it was a suit for cancellation of the sale-deed entered between Chirmola and Parasram. Since a Revenue Court does not have the jurisdiction to cancel and set aside a sale-deed, therefore, the Revenue Court should not have entertained the suit. According to the learned counsel, the learned Board has not discussed the legal issue. It has merely held that as the sale-deed was void, therefore, the revenue court had the requisite jurisdiction to hear the suit.
Secondly, no reasons have been assigned for coming to the aforementioned conclusion, thus the impugned order is a non-speaking one.
Thirdly, the RAA had clearly recorded in his order that 2/3 of the land falling in Kewat No.10, initially belonged to one Javitri, and subsequently was shown as a property belonging to Chirmola. Thus, in Kewat No.10 2/3 of the land belonged to Chirmola. However, the Board has incorrectly recorded that both the Assistant Collector as well as the RAA had concluded that Chirmola and Rampati shared the land in Kewat No.9 and Kewat No.10 on equal footing. According to the learned counsel, this observation made by the Board is contrary to the record available. For, as mentioned above, the RAA was of the opinion that while 2/3 of the land in Kewat No.10 belonged to Chirmola, at best 1/3 of the land belonged to Rampati. Therefore, there is an error apparent on the face of the record.
Lastly, the Board has erred in declaring the sale-deed dated 22.06.1968 as void. Since the Board does not have the jurisdiction to declare a sale-deed as void, it has overstepped its jurisdiction.
On the other hand, Mr. M.C. Jain with Mr. P.K. Sharma, the learned counsel for the respondents, have raised the following counter-contentions: firstly, relying on the Division Bench decision of this Court in the case of Jaswant Singh etc. Vs. Board of Revenue & Ors. {1984 RLR 791}, the learned counsel have contended that while adjudging the jurisdiction of a Court, the pith and substance of the plaint has to be seen. In case, the pith and substance was for declaration and not for cancellation of the deed, then the Revenue Court would have the jurisdiction. Moreover, the sale-deed dated 22.06.1968 was void, as a part of the land which did not belong to Chirmola, but belonged to Rampati, was sold by Chirmola. Therefore, there was no need for Rampati to seek the cancellation of the said sale-deed. Thus, the Board is justified in holding that the Revenue Court had the jurisdiction to hear the revenue suit.
Secondly, the RAA has clearly stated in its order dated 18.05.1993 that in Kewat No.9 Rampati was entitled to half the share of 19 bigha 15 biswa. This finding has not been challenged by the petitioners either here or before the Board. However, the learned counsel have frankly conceded that there is some dispute with regard to the share that would fall in favour of Rampati in Kewat No.10. But on the whole, they have supported the order dated 19.05.1995 passed by the Board.
Heard the learned counsel for the parties and perused the impugned order.
A bare perusal of the order clearly reveals that the Board has not given any cogent reason for holding the sale-deed dated 22.06.1968 as void. It has merely stated that in its opinion the RAA was not justified in holding the said sale-deed as voidable. Therefore, the impugned order is a non-speaking one as far as this issue is concerned.
On page 6 of the impugned order, the Board has observed as under :-
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This observation is clearly against the record. For, as stated above, the RAA did not conclude that Rampati was entitled to half the share of Kewat No.10. According to the RAA, 2/3 of the land falling in Kewat No.10 belonged to Chirmola. Moreover, whereas RAA had discussed the evidence with regard to Kewat No.10 in detail, in the impugned order, there is no discussion whatsoever with regard to the share that belonged to Rampati in Kewat No.10.
Considering the lacunae which exit in the impugned order dated 19.05.1995, this court has no other option, but to set aside the said judgment and to remand the case back to the Board with the direction that it must give detailed and cogent reasons on the legal issue whether the Civil Court or the Revenue Court had the jurisdiction to hear the revenue suit filed by the plaintiff, and further to decide on the basis of documentary and oral evidence, which already exist in the record, about the share that would fall in favour of Rampati in Kewat No.10.
The Board is expected to decide this case within a period of six months from the date of receipt of the certified copy of this judgment.
With these observations this writ petition is, hereby, disposed of.
The Deputy Registrar (Judicial) is directed to contact the S.P., Bharatpur and to request him to inform Banwari Lal Sharma S/o Sh. Paras Ram and Paras Ram S/o Manhori Lal, both R/o Village Morolli Dang, Tehsil Roopdas, Via Rorwal, Distt. Bharatpur that they will appear before the Board of Revenue on 17th August, 2009 at Jaipur Bench where their case has been remanded back vide judgment dated 23.07.2009.
(R.S.CHAUHAN)J.
Manoj Solank