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2009 Supreme(Raj) 1037
[Citation : RLW 2009(2) RJ 1029 (HC)]
(Rajasthan High Court)
Kartar Singh Vs. B.O.R. & Ors. (Maheshwari, J.)
HON'BLE DINESH MAHESHWARI, J.
Kartar Singh
Versus
Board of Revenue for Rajasthan at Ajmer & Ors.
S.B. Civil Writ Petition Nos. 5263, 5429, 6647 & 3336 of 2005,
decided on 31.08.2009
T.S. Champawat, Mridul Jain, Paramveer Singh & K.C. Sharma, for Kartar Singh, Petitioner in CWP Nos.5263/2005, 5429/2005 & 3336/2005 (Respondent in CWP No.6647/2005);
J.R. Beniwal, Sunil Beniwal, B.L. Choudhary & Varun Goyal, for Surendra Singh & Ors., Petitioners in CWP No.6647/2005 (Respondents in CWP Nos. Nos.5263/2005, 5429/2005 & 3336/2005)
Headnote:(a) Rajasthan Tenancy Act, 1955, Sec. 223 and C.P.C., Order 23 Rule 3A; Order 41 Rule 25—Decree of trial Court challenged on the ground of impersonation i.e. suit was filed in his name by some other person and he did not file such suit — Maintainability of appeal in the absence of other defendants whose rights came into existence with the decree passed by the trial Court — Held — The report of hand writing experts cannot be taken conclusive unless the same was tendered in evidence and the opposite parties were given the chance to rebut the same — Allegation of impersonation could not have been permitted to be made in the appeals in the absence of other defendants who filed the written statements of admission — (Paras 27, 34, 43, 55)
¼d½ jktLFkku dkrdkjh vf/kfu;e] 1955] /kkjk 223 vkSj fl-iz-la- vknsk 23 fu;e 3-d] vknsk 41 fu;e 25 & fopkj.k U;k;ky; dh fMØh O;fDrRo ifjorZu vFkkZr okn mlds uke ls fdlh vU; O;fDr }kjk nk;j fd;k x;k Fkk vkSj mlus ,slk dksbZ okn nk;j ugha fd;k & ,sls vU; izfroknhx.k dh vuqifLFkfr esa vihy dh iks"k.kh;rk ftlds vf/kdkj fopkj.k U;k;ky; }kjk ikfjr fMØh ls vfLrRo esa vk;k & vfHkfu/kkZfjr & tc rd gkFk dh fy[kkoV ij foks"kK dh fjiksVZ lk{; esa isk dj izfri{k dks bldk [k.Mu djus dk volj ugha ns fn;k tkrk rc rd mls fu"d"kkZRed ugha ekuk tk ldrk & vU; izfroknhx.k] ftUgksaus Lohd`fr ds fyf[kr dFku nk;j fd;s] dh vuqifLFkfr esa O;fDrRo ifjorZu dk vfHkdFku vihy esa djus dh vuqefr iznku ugha dh tk ldrh Fkh & vihy [kkfjt djuk mfpr FkkA ¼in la[;k 27] 34] 43] 55½
(b) Rajasthan Tenancy Act, 1955, Sec. 88, 91, 92-A and 188, 212, and C.P.C., Order 23 Rule 1 — Suit for decleration as khatedar and perpetual injunction — Application under Order 23 Rule 1 filed by the plaintiff showing that he was not interested in prosecuting the suit further and the respective co-tenants have the right to transfer the land without any objection by the plaintiff — Petitioner-plaintiff alleged fraud having been played where he was made to withdraw the suit — Held — It was a case where the plaintiff consciously moved an application for withdrawal and trial Court did not commit any error in dismissing the suit.
Writ petitions disposed of. (Paras 62 to 65 and 87)
¼[k½ jktLFkku dkrdkjh vf/kfu;e] 1955] /kkjk 88] 91] 92-d] 188] 212] ,oa fl-iz-la-] vknsk 23 fu;e 1 & [kkrsnkj dh ?kks"k.kk djus ,oa kkor fu"ks/kkKk gsrq okn & oknh us vknsk 23 fu;e 1 ds rgr vkosnu ;g nkkZrs gq, nk;j fd;k fd og okn dks vkxs vkSj vfHk;ksftr djus esa :fpdj ugha gS vkSj oknh }kjk fcuk fdlh vH;kifr ds lacaf/kr lg dkrdkjksa dks Hkwfe vUrfjr djus dk vf/kdkj gS & izkFkhZ oknh us diV djus dk vfHkdFku fd;k tgka mlus okn izR;kg`r djk;k x;k & vfHkfu/kkZfjr & ;g ,d ,slk ekeyk Fkk tgka oknh us psrukoLFkk esa izR;kg`j.k gsrq vkosnu fd;k vkSj okn [kkfjt djus esa fopkj.k U;k;ky; us dksbZ =qfV ugha dhA ¼in la[;k 62 ls 65 ,oa 87½
;kfpdk fuLrkfjr dhA
Introductory:
These four writ petitions preferred against two separate orders passed by the Board of Revenue for Rajasthan, Ajmer ('the Board'/’the Board of Revenue’ for short) on 20.05.2005 have been considered together for several common features including those of the common contesting parties, commonness of the substantial part of the land in dispute, and even similitude of some of the issues involved; and are taken up for disposal by this common order.
2. Three of these writ petitions, CWP Nos. 5263/2005, 5429/2005, and 6647/2005 relate to the common order dated 20.05.2005 passed by the Board of Revenue in Appeal No. 9/2004/TA/Sriganganagar and in Appeal No.10/2004/TA/Sriganganagar. The other writ petition, CWP No.3336/2005, relates to a separate order dated 20.05.2005 passed by the Board of Revenue in Appeal No. 11/2004/TA/Sriganganagar.
3. CWP Nos. 5263/2005, 5429/2005 and 6647/2005 have their genesis in Revenue Suit No.146/1991 titled Kartar Singh vs. Ajeet Singh and others as filed in the Court of the Sub Divisional Officer, Sriganganagar ('the SDO' for short) for division of the agricultural land situated at Chak 5Z, Tehsil and District Sriganganagar wherein the learned SDO proceeded to pass the preliminary decree on 16.07.1993 and the final decree on 04.01.1994. These decrees were questioned by Kartar Singh (the petitioner in CWP Nos.5263/2005 and 5429/2005) in two appeals bearing numbers 10/2004 and 11/2004 before the Revenue Appellate Authority, Sriganganagar ('the RAA' for short) essentially on the allegations that the said suit bearing number 146/1991 was filed in his name by somebody impersonating himself as Kartar Singh; and while maintaining that he did not file such a suit, the petitioner-appellant Kartar Singh submitted that he came to know about such decree from the Patwari concerned only on 18.12.2003. In the said appeals, no other defendant of the disputed suit was joined as a party except the State of Rajasthan. The RAA proceeded to allow the appeals on 31.01.2004 and, while setting aside the questioned decrees, remanded the matter to the SDO for decision afresh after hearing the parties. The petitioners of CWP No.6647/2005, Surendra Singh and others, while joining the other defendants of the said suit or their legal representatives, preferred two appeals bearing numbers 9/2004/TA/ Sriganganagar and 10/2004/TA/ Sriganganagar before the Board questioning the aforesaid order dated 31.01.2004. The Division Bench of the Board by its common order dated 20.05.2005 proceeded to dispose of the appeals with the directions that the matter shall stand remanded for decision of the Trial Court only on the question of impersonation of Kartar Singh. The learned Members of the Board observed that if Kartar Singh would succeed in his allegations on impersonation, the questioned decrees shall stand annulled but if he would fail to prove his case of impersonation, the said decrees shall stand upheld. The petitioner-appellant Kartar Singh is aggrieved of the observations made and limitation put by the learned Members of the Board on the scope of enquiry before the Trial Court and has, therefore, filed CWP Nos. 5263/2005 and 5429/2005. The opposite party, Surendra Singh and others are, on the other hand, aggrieved of the directions regarding remand of the matter as made by the learned Members of the Board and have, therefore, filed the other writ petition, CWP No.6647/2005, with the submissions that the order of remand remains unjustified and while allowing their appeal, the Board ought to have restored the decrees as passed by the Trial Court.
4. The controversy in other petition, CWP No. 3336/2005, is, of course, a bit different. This petition has its genesis in a separate revenue suit bearing number 149/2003 as admittedly filed by the petitioner Kartar Singh. The said suit was dismissed as withdrawn on 17.11.2003 by the SDO on an application to that effect made on behalf of the plaintiff Kartar Singh.
