Anchhi vs General Manager (Recovery) State Financial Corporation, Janjati Vikas Bhawan, Pratapnagar, Udaipur

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(Raj) 673

[Citation : RLW 2010(2) RJ 1285]
(Board of Revenue for Rajasthan)
Anchhi (Mst.) Vs. D.G.M. (R) S.F.C. (Tiwari, M.)
G.K. TIWARI, MEMBER
Anchhi (Mst.)
Versus
Dy. General Manager (Recovery) State Financial Corporation, Janjati Vikas Bhawan, Pratapnagar, Udaipur & Ors.
Revision/LR/1244/2010/Rajsamand, decided on 15.07.2010

Advocates Appeared
Ashok Agarwal, for Petitioners;
S.K. Sharma, Dy. G.A., for State

Headnote:Rajasthan Land Revenue Act, 1956, Secs. 75, 76, 256/257 — Revision petition — Maintainability — Non-petitioner No. 3 took loan from R.F.C. — Defaulter in re-payment — Initiated recovery proceedings u/S. 256/257 — Attached house — Challenged in appeal u/S. 75 — Dismissed — Ancestral property — Defaulter has only one fourth share — Record show that Gram Panchayat issued patta in favour of the loanee-defaulter who is exclusive owner of the house — Held — It is immaterial, who else are living with the owner of the house i.e. loanee — Only Civil Court is competent to make final declaration of the title with regard to the civil property situated in abadi area — Concurrent finding — Committed no illegality — Judgement passed u/S. 75 is an appealable judgement u/S. 76 wherein a second appeal lies before RAA and not in Board — A revision against such an appealable judgment is misconstrued and misdirected. (Paras 8 to 10)
       A judgment passed under Section 75 of the Act of 1956 is an appealable judgment under Section 76 of the Act of 1956 wherein a second appeal lies before Revenue Appellate Authority and not in Board. When there is a specific remedy of second appeal under Section 76 of the Act of 1956 in respect of a judgment passed under Section 75 of the Act of 1956, a revision petition against such an appealable judgment is misconstrued and misdirected. Obviously a judgment under Section 75 of the Act of 1956 is not revisable judgment when there is specific remedy of second appeal under Section 76 of the Act of 1956. Thus, this revision is not maintainable and deserves to be dismissed at the stage of admission. (Para 10)
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       iqujh{k.k iks"k.kh; ugha gksus ds dkj.k [kkfjt dhA

TIWARI, M.—This is a revision petition under Section 84 of the Rajasthan Land Revenue Act, 1956 (in short the Act of 1956') against the judgment dated 26.2.2010 of District Collector Rajsamand passed in appeal No. 9/08 Anchhi vs. Dy. General Manager.

2. Briefly stated, the facts of the case leading to the revision are that one Sohan Lal Jingar, the non-petitioner No. 3, took loan from Rajasthan Financial Corporation (in short `R.F.C.'). For having defaulted on paying an outstanding sum of Rs. 10,92,100/- (Rupees Ten Lakhs ninety two thousand and one hundred), the R.F.C. initiated proceedings for recovery of outstanding sum under Section 256/257 of the Act of 1956. Following the laid down procedure Tehsildar Rajsamand attached the house of the defaulter-loanee the non-petitioner No. 3 by the order dated 19.5.08 which was challenged in appeal under section 75 of the Act of 1956 before District Collector Rajsamand who dismissed the appeal by the impugned judgment dated 26.2.2010 against which the instant revision petition is preferred in this court.

3. I have heard the learned counsel for the petitioners and the learned Dy. Govt. Advocate.

4. The learned counsel for the petitioner has contended that the house which is attached for auction in default of the sum borrowed from the R.F.C. is ancestral property which belonged to Dalchand- the deceased father of the loanee Sohan Lal. Dalchand has four legal heirs, Anchhi Bai (widow), Ganeshi Bai (daughter) and two sons Sohan Lal and Mangi Lal, who all live together in the same house. Sohan Lal (defaulter) has only one-fourth share in the attached property so the attachment order of Tehsildar is illegal which should have been set aside by the District Collector in the appeal. But Collector has committed illegality in dismissing the appeal and upholding the attachment order dated 19.5.08 of Tehsildar. The learned counsel prayed for setting aside of both the orders of the courts below.

5. The learned Dy. Govt. Advocate contended that Tehsildar has attached the house of the loanee-defaulter as per law and procedure of recovery under the Act of 1956. The borrower Sohan Lal is the sole owner of the house as the Gram Panchayat has issued patta, which is document of title, in his favour only. The borrower is evading payment of loan amount on one pretext or other. There is nothing illegal in the impugned order of Collector, so revision should be dismissed.

6. I have given thoughtful consideration to the contentions of the rival learned counsels, perused the judgment of District Collector and gone through the material on record.

7. It is undisputed fact that the non-petitioner No. 3 Sohan Lal has defaulted on paying a sum of Rs. 10,92,100/- due to the R.F.C. in consequence of which Tehsildar Rajsamand has started recovery proceedings under the provisions of the Act of 1956 on the request of the Dy. General Manager (R.F.C.) Udaipur. During the course of recovery proceedings Tehsildar passed the order dated 19.5.08 for attachment of the house of the defaulter Sohan Lal. It is found by Tehsildar that the house under consideration belongs to Sohan Lal (defaulter) in whose favour the concerned Gram Panchayat issued a `patta' of the house. Thus Sohan Lal is the exclusive owner of the house and on the basis of this patta the R.F.C. had advanced loan to the non-petitioner No. 3 Sohan Lal earlier. Perusal of the impugned judgment dated 26.2.2010 of District Collector Rajsamand also shows that the first appellate court of Collector, on examination, has found that the house attached by Tehsildar under the provisions of Act of 1956 belongs exclusively to the defaulter-borrower Sohan Lal as the concerned Gram Panchayat has issued patta only in his name. Thus, both the courts below have given concurrent finding of facts that the attached property belongs to the loanee-defaulter only. It is immaterial who else are living with the owner of the house i.e. the non-petitioner No. 3 Sohan Lal.

8. The above discussion make

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