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2012 Supreme(Raj) 215
(Board of Revenue for Rajasthan)
State of Raj. Vs. Shri Faglu (D) thro. L.Rs. & Ors. (Sharma, M.)
BAJRANG LAL SHARMA, MEMBER
D.R. MEENA, MEMBER
State of Rajasthan
Versus
Shri Faglu (Deceased) through L.Rs. & Ors.
Appeal Decree/TA/4804/2005/Barmer, decided on 13.02.2012
Hagami Lal Chaudhary, Dy. Govt. Advocate, for State;
Virendra Singh, for Respondents
Headnote:(a) Rajasthan Land Revenue Act, 1956, Sec. 91; Rajasthan Tenancy Act, 1955, Sec. 88 & 188 — Claiming of khatdari rights on the basis of adverse possession — Mere possession however long does not necessarily mean that it is adverse to the true owner — Held — Where trespasser has been evicted by adopting due process of law u/Sec. 91 of the Land Revenue Act, his possession cannot be uninterrupted overt and peaceful — Not entitle to khatedari rights on the disputed land. (Para 9)
¼d½ jktLFkku Hkw-jktLo vf/kfu;e] 1956] /kkjk 91( jktLFkku dk'rdkjh vf/kfu;e] 1955] /kkjk 88] 188 & izfrdwy dCts ds vk/kkj ij [kkrsnkjh vf/kdkjksa dk nkok djuk & dsoy dCtk] pkgs fdruk gh nh?kZdkyhu D;ksa u gks] bldk vko';d :i ls ;g vFkZ ugha fd ;g lgh Lokeh ds izfrdwy gS & vfHkfu/kkZfjr & tgka vfrpkjh dks Hkw-jktLo vf/kfu;e dh /kkjk 91 ds rgr fof/k dh lE;d~ izfØ;k dks viukrs gq, csn[ky fd;k x;k gks rks mldk dCtk fuoZ/u] izR;{k ,oa 'kkfUriw.kZ ugha gks ldrk & fookfnr Hkwfe ij [kkrsnkjh vf/kdkjksa dk gdnkj ughaA ¼in la[;k 9½
(b) Rajasthan Land Revenue (Allotment of Govt. Land for Agricultural Purposes) Rules, 1970, Rule 20 — Regularisation of land — Land was Siwai Chak for grazing cattle and community purposes — Claimed on the basis of possession — Held — When systematic land record has been maintained in the tehsil office about the land use, rent and Crop pattern the other oral evidence is of no consequence. (Paras 10 & 11)
Appeal accepted.
¼[k½ jktLFkku Hkw-jktLo ¼d`f"k iz;kstukFkZ ljdkjh Hkwfe dk vkoaVu½ fu;e] 1970] fu;e 20 & Hkwfe dk fu;eu & Hkwfe i'kq pkjkxkg ,oa lkeqnkf;d iz;kstukFkZ flok; pd Fkh & dCts ds vk/kkj ij nkok fd;k & vfHkfu/kkZfjr & tc Hkw-mi;ksx yxku vkSj Qly uewus ds ckjs esa rglhy dk;kZy; esa Hkw-vfHkys[k Øekuqlkj la/kkfjr gks rks vU; lk{; fujFkZd gSA ¼in la[;k 10 o 11½
vihy Lohdkj dhA
2. The thumb nail sketch of the case is that the respondents/plaintiffs filed a regular suit against the State of Rajasthan under Section 88 and 188 of the Act in the court of Assistant Collector, Sheo (Barmer). The trial court decreed the suit on 2.9.2004. The State assailed the judgment & decree of the trial court before the Settlement Officer cum Revenue Appellate Authority, Jodhpur. The first appellate court dismissed the appeal filed by the State on 27.6.2005. Being aggrieved by this judgment & decree passed by both the lower courts this second appeal has been filed in this court.
3. Heard the learned counsels of the parties.
4. The learned Govt. Advocate contended that the judgments & decrees passed by both the lower courts are contrary to the evidence available on file and against the basic principles of settled law. He submitted that the respondents had trespassed some portion of the disputed land firstly in samvat 2034 and every year the respondents were evicted by adopting due process of law under Section 91 of the Rajasthan Land Revenue Act, 1956. He further argued that there was no evidence to prove their possession before settlement or since Svt. 2012 when the existing Tenancy Act came into force. But both the trial courts just ignored the evidence available on file and granted them khatedari of 243.02 bighas of land capriciously. He argued that their claim based on adverse possession was also not proved because every year they were dispossessed by the land holder and they were never in possession of 243.02 bighas of land as per the revenue record produced by the plaintiffs. He further submitted that the trial court framed 8 issues in this case but did not infer explicitly on each issue on the basis of evidence available on file. He argued that it is a perverse decree and it has been a case of miscarriage of justice. The provision of Order 20 Rule 5 of the Civil Procedure Code has been flouted by the trial Court. He submitted that the appellate courts also casually dismissed the appeal without addressing the contentions raised in appeal by the State. He also argued that the land in question is a community land which is being used by the local people for grazing their cattle and in drainage area. A writ petition was also filed before the Hon'ble High Court (DBCWP No. 4548/2001) wherein the report of the Geological Survey of India was also produced which reads that the land in question is in drainage area (Nadi) therefore no khatedari could have been given on such a land. He also submitted that the disputed land is located in desert district of Barmer wherein the allotment/regularization has been restricted as a measure of desert stabilization and the report of CAZRI (Central Arid Zone Research Institute, Jodhpur) also dissuades the State on allotment of such land. He finally urged the court to accept the appeal and quash the judgments & decrees passed by both the lower courts.
5. The learned advocate for the respondents submitted that the judgment & decrees passed by the lower courts are supported by sufficient documentary & oral evidence. He argued that the respondents along with their father have been in continuous possession on the land in question prior to settlement and during the settlement some land located in khasra No. 59 was entered in their khatedari but the land in question (k.n. 59/3 and 60/2 measuring 162.16 and 80.06 bighas in total 243.02 bighas) could not be entered in their name. He further submitted that the land in question is not a nadi or located in drainage/catchment area. The revenue record clearly explains that the disputed land is Barani land and as per report of the Collector, Barmer dated
