The importance of evidence in establishing possession prior to 1955 and the need for proper evaluation of evidence by the Board of Revenue.

JUDGMENT

Vinit Kumar Mathur, J. - The present writ petition has been filed against the order dated 16.03.1999 passed by the Board of Revenue, Rajasthan, Ajmer, whereby the reference made by the Collector, Jaisalmer was answered and the petitioners were directed to be removed from the subject piece of land holding them to be an encroacher.

2. Brief facts giving rise to the present writ petition are that the petitioners were in possession of the land in question since a very long time as the petitioners' forefathers along with other persons were in occupation of subject piece of land. The petitioners were cultivating the land in question and on a dispute being arose, a revenue suit was preferred under Section 88 of the Rajasthan Tenancy Act, 1955 (for short 'the Act') for declaration of khatedars of the land in question. The suit was decreed in favour of the petitioners vide judgment and order dated 17.08.1982 (Annex. 1) passed by the Assistant Collector, Pokaran. Against the judgment and order dated 17.08.1982, no appeal was preferred by the State. In the year 1985, the State Government made a reference to the Board of Revenue under Section 232 of the Rajasthan Tenancy Act, 1955 which was decided by the Board of Revenue, Rajasthan, Ajmer vide its order dated 16.03.1999.

3. Learned counsel for the petitioners submits that the learned trial court after scanning the evidence on record had come to a categoric finding that the petitioners and their forefathers were in possession of the subject piece of land on or prior to 15.10.1955 and, thus, it was held that the name of the petitioners may be entered in the revenue records by making requisite entries. He further submits that once the trial court, after evaluation of evidence, had come to a finding that the petitioners were in possession of the subject piece of land prior to 1955, there was no reason for the Board of Revenue to entertain the reference made by the Collector, Jaisalmer and come to a different finding. More particularly, when the evidence adduced on record clearly and categorically shows that the petitioners were in possession of the subject piece of land prior to 1955. Learned counsel further submits that a bare perusal of the order impugned passed by the Board of Revenue, Ajmer shows that while recording the finding that the petitioners are trespassers on the subject piece of land, no evidence worth credence was taken into consideration.

4. Learned counsel further submits that in the identical facts and circumstances of the case this Court in the judgment of Hari Ram and another v. State of Rajasthan and others decided on 27.05.1996 in D.B. Civil Writ Petition No. 1675/1987 ruled in favour of the petitioners and the findings recorded by the Board of Revenue, Ajmer were quashed and set aside.

5. Learned counsel for the petitioner submits that the facts of the present case are similar to the facts of the case of Hari Ram (supra), wherein this Hon'ble Court ruled in favour of the petitioners and set aside the order of Board of Revenue in reference. He, therefore, prays that the writ petition may be allowed and the reference order dated 16.03.1999 passed by the Board of Revenue, Ajmer may be quashed and set aside.

6. Per contra, learned counsel for the respondents is not in a position to controvert the submissions made by the learned counsel for the petitioners. However, he has argued that the findings arrived at by the Board of Revenue, Ajmer in its order dated 16.03.1999 does not call for any interference as the same were passed after evaluation of evidence brought on record. He, therefore, prays that the writ petition may be dismissed.

7. I have considered the submissions made at the Bar and gone through the relevant record of the case including the orders dated 17.08.1982 passed by the Assistant Collector, Pokaran and 16.03.1999 passed by the Board of Revenue, Rajasthan, Ajmer.

8. The undisputed facts in the present case are that the petitioners' forefathers were in occupat