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RAJASTHAN HIGH COURT (JAIPUR BENCH)
Honble A.P. RAVANI, CJ. & A.A. KHAN, J.
Anandi Lal - Appellant
Versus
State of Rajasthan and Others - Respondents
D.B. Civil Special Appeal No. 72 of 1987
Decided On : October 09, 1995
In view of the settled legal position, as declared by the Apex Court, the question as to whether intra-Court Appeal or Special Appeal in the same High Court would be maintainable or not, would depend upon the facts of the case. Only if the facts justify, a party would be entitled to file petition both under Articles 226 and 227 of the Constitution. If facts do not justify and yet the party labels the petition as one under Article 226 of the Constitution also, that would not be sufficient to hold that an intra- Court appeal or Special Appeal would be maintainable against the judgment and order of a single Judge of the High Court. Thus in each case, it will be for the High Court to examine the facts of the case. (Para 13)
Even when no limitation is prescribed, the power conferred upon the authority concerned could be exercised within reasonable time. In the facts of the case before it, the Supreme Court held that the powers under Section 211 of the Bombay Land Revenue Code in relation to the permission for user of the land for non-agricultural purposes, could be exercised within few months from the date of the permission. In that case, the power was exercised after a period of more than one year. The Supreme Court held that the exercise of power was too late. (Para 19)
(2). This Appeal arises out of the judgment and order passed by the learned Single Judge in S.B. Civil Writ Petition No. 184 of 1987 decided on January 19, 1987. By the aforesaid order, the learned Single Judge confir- med the judgment and order passed by the Board of Revenue in LR Reference No. 38 of 1984/Kota.
(3). The facts giving rise to this appeal, are as follows :–
The dispute pertains to a land admeasuring 43 Bighas and 9 Biswas, situated in the village Ulthi Tehsil and District Baran.
The land was originally in the name of Pujari Laxminarain Temple. Sometime in the year 1951, the Pujari died. The land was ordered to be resumed and confiscated to the State as per order dated January 20, 1955 passed by the Commissioner, Kota. In other words, the land was a `Muafi land, inasmuch as after death of the Pujari of Laxminarain temple, no one was there to claim the land. By way of escheat, it was ordered to be resumed by the State.
(4). On October 14, 1955, the Rajasthan Tenancy Act, 1955 (for short `the Act of 1955) came into force. Thereafter, the petitioner, appellant herein, filed suit on May 19, 1957 under the appropriate provisions of the Act of 1955 for a declaration that he be declared`khatedarof the land, inter alia, on the ground that on October 14, 1955 he was in possession of the land. The suit was decreed on October 12, 1957. The State Government of Rajasthan was party to the suit. No appeal was filed against the said order. Consequently, in the revenue record, Mutation Entry No. 334 was made on September 22, 1958. The petitioner continued to be in possession of the land and enjoyed the fruits of the same.
(5). On the basis of report made by the Tehsildar on December 27, 1983, the Additional Collector, Baran made reference to the Board of Revenue under Section 232 of the Act of 1955 and under Section 82 of the Rajasthan Land Revenue Act, 1956 (for short `the Act of 1956). By the said reference it was prayed that the decree passed by the Assistant Collector, Baran dated October 12, 1957 and the Mutation Entry No. 334 dated September 22, 1958, be cancelled. The Board of Revenue accepted the reference as per the judg- ment and order dated May 21, 1986 and directed that the decree passed by Assistant Collector, Baran dated October 12, 1957 and the Mutation Entry No. 334 dated September 22, 1958, be cancelled and the earlier position be restored and the land be entered in the name of Mandir Maufi.
(6). The appellant-petitioner preferred a Writ Petition before this Court under Articles 226 and 227 of the Constitution of India, challenging the legality and validity of the judgment and order passed by the Board of Revenue. The petitioner also prayed for declaration that he had acquired the Khatedari rights of the disputed land under Section 15 of the Act of 1956 and further declaration that the disputed land had been resumed under the orders of the Commissioner, Kota passed on January 20, 1955. Thereafter the land had ceased to be of the Maufi of Murti Mandir and since then it did not belong to Murti Mandir Laxminarayanji.
The learned Single Judge (Corum: PC Jain, J.), summarily rejected the Petition as per judgment and order dated January 19, 1987. It is against this judgment and order passed by the learned Single Judge that this Special appeal is preferred.
(7). A preliminary objection is raised on behalf of the respondents as regards maintainability of the Special Appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 (for short `the Ordinance). It
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