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2009 Supreme(Raj) 227
[Citation : RLW 2009(1) RJ 268]
(Board of Revenue for Rajasthan)
Indraj Vs. State of Rajasthan & Ors. (Tiwari, M.)
HON'BLE G.K. TIWARI, MEMBER
Indraj
Versus
State of Rajasthan & Ors.
Revision/TA/10140/1998/Bikaner, decided on 09.02.2009
Purna Shanker Dashora, Counsel, for Petitioner;
Ramjan Mohammad, Dy. Govt. Advocate, for State;
Ex parte proceedings against Non-petitioners No. 2 to 4
Headnote:Rajasthan Land Revenue Act, 1956, Sec. 136; C.P.C., Order 9 Rule 13 — Correction in record of right — Water reservoir land — Recorded wrongly in Gair Khatedari right of the petitioner — S.D.O. ordered for making correction u/S. 136 — Petitioner filed application u/O. 9 R. 13 for setting aside exparte order — Held — Land was of public purpose record as "Johad Paytan" — It was never allotted nor any khatedari right is accruable in such land as per Sec. 16 of the Tenancy Act — The provisions of C.P.C. apply only where the procedure is not prescribed under the Act of 1956 — Provisions of Order 9 Rule 13 CPC are applicable for setting aside exparte decree — U/s. 136 of 1956 Act no decree is passed — At liberty to get his right declared under the Act of 1955 in competent Revenue Court.
Revision dismissed. (Paras 7 to 9)
That in respect of the matters pertaining to the Act of 1956 only above provisions of Section 59 apply and not the provisions of the C.P.C. as contained under Order 5 Rule 17 to 20 of the C.P.C. The Act of 1956 is a special law and it has overriding effect on the general law in respect of the substantive and procedural law provided under the Act of 1956. (Para 7)
jktLFkku Hkw-jktLo vf/kfu;e] 1956] /kkjk 136( fl-iz-la-] vknsk 9 fu;e 13 & vf/kdkj ds vfHkys[k esa lakks/ku & ^^tksgM+ ik;rku** dh Hkwfe & =qfVok izkFkhZ dh xSj [kkrsnkjh esa ntZ gqbZ & mi[k.M vf/kdkjh us /kkjk 136 ds rgr lq/kkj djus ds vknsk fn;s & ,di{kh; vknsk vikLr djus gsrq izkFkhZ us vknsk 9 fu;e 13 ds rgr vkosnu nk;j fd;k & vfHkfu/kkZfjr & ;g Hkwfe lkoZtfud mi;ksx dh ^^tksgM+ ik;rku** ds :i esa ntZ Fkh & bls u rks dHkh vkoafVr dh xbZ vkSj u gh dkrdkjh vf/kfu;e dh /kkjk 16 ds rgr ,slh Hkwfe ij dksbZ [kkrsnkjh vf/kdkj gh izksnHkwr gksrs gS & fl-iz-la- ds izko/kku dsoy ogh ykxw gksrs gS tgka 1956 ds vf/kfu;e ds rgr izfØ;k fu/kkZfjr ugha gksrh gS & fl-iz-la- ds vknsk 9 fu;e 13 ds izko/kku ,d i{kh; fMØh vikLr djus ds fy;s ykxw gksrs gS & 1956 ds vf/kfu;e dh /kkjk 136 ds rgr fMØh ikfjr ugha gksrh & 1955 ds vf/kfu;e ds rgr l{ke jktLo U;k;ky; esa vius vf/kdkj dh ?kks"k.kk djkus gsrq Lora= gSA ?in la[;k 7 ls 9?
iqufoZyksdu [kkfjt dhA
TIWARI, M.—This is revision under Section 84 of the Rajasthan Land Revenue Act 1956 (in short `the Act of 1956') against the judgment dated 6.10.1997 of Revenue Appellate Authority Bikaner.
2. Briefly stated, the facts leading to the revision are that Sub-Divisional Officer Nohar by his judgment dated 8.9.1977 ordered for making correction in record of right under Section 136 of the Act of 1956 for carrying out inspection of the revenue record and the site of the disputed land said to be `Johad Paytan' (land for water reservoir). The petitioner filed an application under Order 9 Rule 13 of the Civil Procedure Code (C.P.C.) on 5.12.1985 for setting aside the ex-parte order dated 8.9.1977. The Sub-Divisional Officer by his judgment dated 24.12.1991 rejected this application against which an appeal was preferred before Revenue Appellate Authority Sriganganagar from where it was transferred to Revenue Appellate Authority Hanumangarh and thereafter to Revenue Appellate Authority Bikaner due to change in jurisdiction. The Revenue Appellate Authority Bikaner by his impugned judgment dated 6.10.1997 rejected the appeal and upheld the order of Sub-Divisional Officer dated 24.12.1991.
3. I have heard the learned counsels for both the parties.
4. The learned counsel for the petitioner has argued that the disputed land was recorded in gair-khatedari right of the petitioner but Sub-Divisional Officer recorded the disputed land as `Johad Paytan' deleting the name of the petitioner as a gair-khatedar without providing opportunity of hearing to the petitioner by his order dated 8.9.1977. When the petitioner came to knowledge of this order of Sub-Divisional officer he filed an application under Order 9 Rule 13 of the CPC on 5.12.1985 for setting aside the order of 8.9.1977 and decide the case afresh after giving opportunity of hearing to the petitioner but Sub-Divisional Officer did not accept his application and the Revenue Appellate Authority in his appeal also did not allow the appeal and upheld the order dated 8.9.1977 illegally. It was contended that the petitioner is gair-khatedar of the disputed land and his khatedari right cannot be extinguished without giving him an opportunity of hearing. The order dated 8.9.1977 was passed ex-parte on the ground that the petitioner did not appear before the court of Sub-Divisional Officer despite service on him by affixing a copy of notice on his residence. It is argued that the service was not made on him properly according to provisions of Order 5 Rules 12 to 20 of the C.P.C. which have been violated. The petitioner never evaded service of notice on him even then substituted service is made without order of the concerned court. The provisions of Rules 17 to 20 of Order 5 of the CPC have not been followed. Thus, the order dated 8.9.1977 was passed in contravention of principle of natural justice without giving opportunity of hearing. The learned counsel cited 1998 RBJ 499, 2007 RBJ 142, 1997 RLW (3) (Raj.) 1719, 2003(1) RRT 19, 1976 RLW 1 in support of his contention that compliance of the provisions contained under Order 5 Rule 17 to 20 of the C.P.C. are mandatory and any order passed in their contravention should be set aside providing opportunity of hearing to the concerned party. In view of these provisions the application filed under Order 9 Rule 13 of the C.P.C. should have been allowed by the Sub-Divisional Officer but he committed illegality in not allowing this application; Revenue Appellate Authority also committed illegality in his judgment dated 6.10.1997 by rejecting the appeal and upholding the order of Sub-Divisional Officer. Thus orders of both the lower courts should be set aside and the petitioner should be allowed an opportunity of hearing before passing any order relating to correction of entry under section 136 of the Act of 1956.
5. Opposing the contentions of the learned counsel for the petitioner, the learned Dy. Govt. Advocate argued that the disputed land is a land of
