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[Citation : RLW 2004 RJ 108 (HC)]
(Rajasthan High Court)
Mohan Singh Vs. Board of Revenue & Ors. (Garg, J.)
HON'BLE SUNIL KUMAR GARG, J.
Mohan Singh
Versus
Board of Revenue & Ors.
S.B. Civil Writ Petition No.3253 of 1990, decided on 09.07.2002
The argument that since the petitioners are still in possession of land in dispute and, therefore, khatedari rights be conferred on them is concerned, it may be stated here that declaration of khatedari right cannot be awarded on a person merely on the basis of possession and so far as present case is concerned, the name of the original plaintiff in Khasra Girdawari was only found for the samvat year 2015 to 2019 and that too without any cultivation. (Para 20)
(b) Rajasthan Tenancy Act, 1955, Sec. 88 and 188 – Sale of Land through registered sale deed – Held – Where there is complete sale of Khatedari Land through registered sale-deed, the purchaser acquires khatedari rights. (Para 21)
Where there is complete sale of khatedari land through registered sale-deed, the purchaser acquires khatedari rights. In this case, the land was sold to defendant No.6 (respondent No.16) by defendant No.1 to 5 and thus defendant No.6 acquires khatedari rights and not the present petitioners. (Para 21)
(c) Rajasthan Tenancy Act, 1955, Sec. 88 and 188 – Land sold through registered sale-deed – Suit filed for decleration of khatedari rights – Held – Sale-deed has not challenged or suit has not been filed for cancellation of that sale-deed, in absence of that no relief could be granted. (Para 19)
The reasoning given by the learned Revenue Appellate Authority that since the sale-deed which was executed by the original defendants No.1 to 5 in favour of defendant No.6 (respondent No.16) has not been challenged or no suit has been filed for cancellation of that sale-deed and in absence of that no relief could be granted appears to be one of the solid grounds for rejecting the suit of the plaintiff and thus, all the courts below had rightly rejected the suit of the original plaintiff and the impugned judgments passed by the courts below do not call for interference of this Court and it does not appear that findings of fact recorded by the three courts below are perversely or patently unreasonable. (Para 19)
(d) Evidence Act, Sec. 101 – Burden of proof – Suit proceeded exparte against the original defendants – Burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it – Held – Suit cannot be decreed merely on the ground that it is proceeded exparte against the defendants.
Writ petition dismissed.
Since no evidence was led by original defendants No.1 to 5 and thereafter defendant No.6 (respondent No.16), it does not mean that suit of the original plaintiff should have been decreed because in this case the Petitioners have come with a clear case that the land in dispute was their khudkast land and this fact was not proved by the reliable and convincing evidence. It is observed at the cost of repetition that suit of any party which is proceeded exparte against the defendants cannot. be decreed merely on the ground that the suit has been ordered to be proceeded exparte. It can only be decreed when the case as put up by the plaintiff is proved 1 by cogent and convincing evidence. Hence, the argument that exparte suit of the original plaintiff and later on the petitioners should have been decreed is rejected. (Para 15)
.
(2). It arises in the following circumstances:
i) The predecessor-in-interest of the petitioners Shri Binjraj Singh (hereinafter referred to as the deceased) filed a suit under Sections 88 and 188 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act of 1955) against the predecessor-in-interest (defendants No.1 to 5) of respondents No.4 to 15 before the Assistant Collector, Nagaur alleging inter alia that the land in dispute was his khudkast land as he was erstwhile Jagirdar. This land was given to the original defendants No.1 to 5 for cultivation for one year and they vacated the land after one year and thereafter the original plaintiff (deceased) was in exclusive cultivatory possession of the land In question. It was further alleged that since the land was in personal cultivation of the original, plaintiff (deceased), he was Khudkast holder thereof and on resumption of Jagir, he had become khatedar tenant. (The petitioners are heirs of original plaintiff Binjraj Singh). The original defendants No.1 to 5 executed registered sale-deed dated 15.7.71 in favour of defendant No.6 (respondent No.16) in respect of land in question. It was further alleged in that suit that since the entries in the original revenue records in favour of original defendants No.1 to 5 were erroneous, the same error continued to be repeated in subsequent record and hence the entries recorded in the Revenue Record are not correct. Consequently, a prayer was made by the original plaintiff that the land in dispute be declared his khatedari land and perpetual injunction be granted.
ii) The defendants No-1 to 5 did not put up their appearances before the Assistant Collector, Nagore and, therefore, proceedings were initiated exparte against them. The original defendant No.6 (respondent No.16) in whose favour the land was sold by the original defendants No.1 to 5 also did not appear and proceedings were initiated exparte against him also. Thus whole stint of the original plaintiff was conducted exparte against all the defendants No.1 to 6. It was further alleged that since defendant No.6 (respondent No.16) appeared on behalf of the original plaintiff before the Assistant Collector, Nagore as a witness- and supported the case of the original plaintiff (deceased) rather than the case of defendant No.1 to 5 and his case, therefore, suit of the original plaintiff should have been decreed, but on the contrary, the learned Assistant Collector, Nagore through his judgment dtd.10.1.85 (Annex.1) dismissed the suit of the plaintiff Binjraj Singh.
iii) That after being aggrieved from the judgment dtd.10.1.85 (Annex.1) passed by the Assistant Collector, Nagore, the petitioners preferred an appeal before the Revenue Appellate Authority (II), Jodhpur. The Revenue Appellate Authority (II), Jodhpur dismissed the appeal filed by the petitioners vide judgment dtd.5.1.89 (Annex.2) and upheld the judgment dated 10.1.85 (Annex.1) passed by the Assistant Collector, Nagore.
iv) That aggrieved from the judgment dtd.5.1.89 (Annex.2) passed by the Revenue Appellate Authority Jodhpur, the petitioners preferred second appeal before the Board of Revenue. The learned Board of Revenue also dismissed the second appeal filed by the petitioners vide judgment dtd.27.10.89 (Annex.3) and upheld the judgment dtd.5.1.89 (Annex.2) passed by the Revenue Appellate Authority (II), Jodhpur. Hence, this writ petition with the above mentioned prayer.
(3). In this writ petition, the main contentions of the learn
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