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2010 Supreme(Raj) 365
[Citation : RLW 2010(1) RJ 533]
(Board of Revenue for Rajasthan)
Amar Singh & Anr. Vs. Hanuman Singh & Ors. (Dr. Hooja, C.)
DR. RAKESH HOOJA, CHAIRMAN
G.K. TIWARI, MEMBER
Amar Singh & Anr.
Versus
Hanuman Singh & Ors.
Appeal/8143/2008/Jhunjhunu, decided on 29.03.2010
Shyam Babu Pareek, for Appellants;
Atma Ram Sharma, for Respondents
Headnote:Rajasthan Tenancy Act, 1955, Sec. 88 — Grant of Khatedari rights — Filed appeal after lapse of 20 years — Dismissed as time barred — Held — Khatedari rights were granted on the basis of Will executed by deceased khatedar 'J', in favour of `K' who later on transferred it to 'H' — The Will has been allowed with dismissal of impugned judgments, the applicants do not stand to get any relief in respect of disputed land — Appellants suit against 'H' was dismissed in default — This fact was concealed — In fact relief would be provided through regular suit for grant of Khatedari rights and not through this appeal. (Paras 8 to 12)
The appellants had filed a suit against the respondent Hanuman Singh u/Ss. 88 and 188 of the Act in the Court of S.D.O., Khetri. The suit was registered as 58/99. Perusal of the order sheet dated 27.7.01 of the trial Court shows that this suit was dismissed in default. But the appellants have not revealed this fact before this Court. In fact any relief with regard to the disputed land would be provided to the appellant through a regular suit for the grant of khatedari rights in respect of the disputed land and not through this appeal. The appellants should have pursued their suit. But hiding this fact of filing of a suit, the appellants have approached the appellate Court, which shows that filing of a suit, the appellants have approached the appellate court, which shows that they have not come with clean hands. Thus, this appeal woefully lacks in merit also. (Para 11)
jktLFkku dk'rdkjh vf/kfu;e] 1955] /kkjk 88 & [kkrsnkjh vf/kdkj iznku djuk & chl o"kZ dk le; chr tkus ds i'pkr~ vihy nk;j dh & dky oftZr gksus ds dkj.k [kkfjt dh & vfHkfu/kkZfjr & e`rd [kkrsnkj ^ts* }kjk fu"ikfnr olh;r ds vk/kkj ij ^ds* ds i{k esa [kkrsnkjh vf/kdkj iznku fd;s x;s ftlus ckn esa mls ^,p* dks vUrfjr dj fn;k & lk{; ds tfj;s olh;r dk lR;kiu fd;k x;k & vk{ksfir fu.kZ;ksa dks fujLr djus ds lkFk vihy dks Lohdkj djus ij Hkh izkFkhZ dks fookfnr Hkwfe ds lEcU/k esa dksbZ vuqrks"k ugha fey ikrk & ^,p* ds fo:) vihykFkhZ dk okn O;frØe esa [kkfjt gqvk & bl rF; dks fNik;k x;k & ;FkkFkZ esa [kkrsnkjh vf/kdkj gsrq fu;fer okn ds tfj;s gh vuqrks"k fn;k tk;sxk u fd bl vihy ds tfj;sA ¼in la[;k 8 ls 12½
vihy [kkfjt dhA
2. Briefly, stated, the facts of the case are that the respondent No. 1 plaintiff Hanuman Singh filed a suit against his father Kheta Ram (deceased) u/Sec. 88 of the Act in the Court of Assistant Collector Khetri who allowed the suit vide his judgment and decree dated 26.12.1978. Thereafter the appellants preferred an appeal after lapse of twenty year before Revenue Appellate Authority Sikar who dismissed the appeal as time barred by his impugned judgment dated 29.7.04 aggrieved against which this second appeal is filed.
3. The learned counsel for the respondents has filed an application under Order 41 Rule 27 of the Civil Procedure Code (C.P.C.) for production of additional documents which comprise of a certified copy of the plaint of the suit filed by the appellant before Sub-Divisional Officer Khetri and a certified copy of the order dated 27.7.01 of Sub-Divisional Officer Khetri who dismissed the suit in default.
4. We have heard the learned counsels of both the parties.
5. The learned counsel for the appellants has contended that the disputed land originally belonged to late Jaswant Singh son of Mohan Jat. After the death of Jaswant Singh the disputed land was mutated through the mutation No. 63 dated 13.11.1978 in the name of a brother of the deceased khatedar Jaswant Singh, Kheta Ram. This mutation was illegally attested as the deceased khatedar Jaswant Singh had a daughter who was real successor to Jaswant Singh; but she was neither heard during the course of mutation process nor her name was recorded in the mutation register or any subsequent revenue record. The appellants are the sons of the daughter Gulab Kaur of the deceased Jaswant Singh. The respondent-plaintiff did not implead the appellants in the suit which was filed only against Kheta Ram (deceased) who collusively gave his consent to the averments of plaint and a consent decree was accordingly issued wrongfully. Since the appellants were not parties to the suit, as soon as they came to the knowledge of the consent decree dated 26.12.1978 of the trial court, they filed on appeal under Section 223 of the Act before Revenue Appellate Authority Sikar. But Revenue Appellate Authority without going into the merit of the case dismissed the appeal on the basis of point of limitation only. Revenue Appellate Authority did not appreciate judicially the facts mentioned under Section 5 of the Limitation Act in which it was clearly stated that the mother of the appellants was the daughter of the deceased khatedar Jaswant Singh, so the disputed land should have been mutated in her name as daughter, but the mutation was carried out in the name of brother of the deceased khatedar Jaswant Singh. The appellants were not privy to the suit between the son (Hanuman Singh) and father (Kheta Ram) as they were excluded from the suit. This fact came to their knowledge through one of the sons of Kheta Ram, Sher Singh who obtained a copy of the impugned judgment of the trial court dated 26.6.1998. Hence the delay in filing the appeal; but Revenue Appellate Authority overlooked all these facts and illegally dismissed the appeal as time barred. The learned counsel cited 2009(1) RRT 467 and 1998 RRD 319 that the appeal should not have been decided on technical matter of limitation only but should have been decided on merits. It was also contended that the suit was decreed on the basis of a so-called will allegedly written by the khatedar Jaswant Singh in favour of Hanuman Singh, but the language of the document annexed as Ex. P.1A is not that of a will. It does not say why the all alleged will was written. The learned counsel cited AIR 2001 (SC) 2802 and 1995 DNJ (SC) 402 to support his contention.
6. Strongly opposing the contentions of the appellants, the learned counsel for the respondents contended that t
