Khyali Ram vs Patti Devi Kisturi Devi
2021 Latest Caselaw 5020 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civ. Leave To Appeal No. 14/2018

1. Khyali Ram S/o Late Sh. Manphool, Aged About 60 Years, R/o Chak 12 Stb Tehsil Pilibanga, District Hanumangarh.

2. Thakar Ram S/o Late Sh. Manphool, Aged About 63 Years, R/o Chak 12 Stb Tehsil Pilibanga, District Hanumangarh.

3. Mam Raj S/o Late Sh. Manphool, Aged About 55 Years, R/o Chak 12 Stb Tehsil Pilibanga, District Hanumangarh.

----Appellants Versus

1. Patti Devi Kisturi Devi W/o Sh. Jawana Ram, R/o 35 Stb Tehsil Pilibanga, District Hanumangarh.

2. Lrs Of Pura Ram, Tehsil Pilibanga, District Hanumangarh 2/1. Smt. Uma Devi W/o Pura Ram, R/o Chak 12 Stb Tehsil Pilibanga, District Hanumangarh.

2/2. Om Prakash S/o Pura Ram, R/o Chak 12 Stb Tehsil Pilibanga, District Hanumangarh.

                                                                 ----Respondents


For Appellant(s)          :     Mr. Sushil Bishnoi.
For Respondent(s)         :     Mr. S.L. Jain.



             HON'BLE MR. JUSTICE ARUN BHANSALI

                                     Order

23/02/2021

This leave to appeal has been filed by the appellants-

applicants seeking leave to challenge the judgment & decree

dated 31.07.2018 passed by the Additional District Judge No.2,

Hanumangarh, whereby the suit for specific performance filed by

respondent No.1 Smt. Patti Devi against legal representatives of

Pura Ram has been decreed.

It is, inter-alia, indicated that Pura Ram was allotted the land

in question after the same was declared as surplus under the

(2 of 4) [CLA-14/2018]

provisions of Section 13(5)(b) of the Rajasthan Colonization

(Allotment and Sale of Government Land in the IGNP Colony Area)

Rules, 1975. The claim was made that the applicants being sons

of Manphool, were entitled to said surplus land. However, Pura

Ram got allotted the land in question on 14.05.1992, the said

allotment was challenged by the appellants before the revenue

courts and the same was quashed by order dated 04.12.2015 and

the matter has been remitted back to the allotting authority.

Against the order dated 04.12.2015, the legal

representatives of Pura Ram challenged the same before the

Board of Revenue ('BOR') by preferring appeal, however, the same

was dismissed as withdrawn by the BOR on 30.11.2017. It is

further indicated that the applicants had filed application under

Order I, Rule 10 CPC during the pendency of the suit, however,

the application was rejected by the trial court by its order dated

16.04.2018. Against that order, the applicants filed SBCWP

No.6285/2018, however, during the pendency of the said writ

petition, the suit itself was decided by the trial court.

Learned counsel for the applicants made submissions that as

the decree has been passed by the trial court ordering for

execution of the sale deed qua the disputed property in favour of

the plaintiff Smt. Patti Devi and as allotment in favour of Pura

Ram, already stands cancelled by the competent revenue court,

the applicants are affected by the decree passed by the trial court,

inasmuch as, Pura Ram, does not have any interest, which could

be transferred by him.

Further submissions have been made that a finding has been

recorded by the trial court pertaining to the possession of the

plaintiff over the suit property, which is in possession of the

(3 of 4) [CLA-14/2018]

applicants and therefore also, the finding is likely to be used

against the applicants in the pending litigation, they are affected

by the judgment impugned and therefore, on that count, they may

be granted leave to appeal.

Learned counsel for the respondent-plaintiff opposed the

submissions. It was submitted that the respondent has initiated

proceedings before the BOR and by order dated 15.12.2017, qua

the order dated 04.12.2015 passed by the Revenue Appellate

Authority, Hanumangarh, status quo has been ordered to be

maintained.

Further submissions have been made that once the

application filed by the applicants under Order I, Rule 10 CPC has

been rejected by the trial court, no case for seeking leave from

this Court is made out and therefore, the application seeking leave

deserves to be rejected.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The impugned decree has been passed in proceedings

between Smt. Patti Devi and Pura Ram, who is now represented

by his legal representatives pertaining to the land in question.

Apparently, in so far as the transaction between the plaintiff and

the defendant is concerned, the applicants do not come into

picture at all. The cause of action, which has been indicated in

filing the present application is that the allotment made in favour

of Pura Ram, stands cancelled and the applicants are beneficiary

of the same piece of land pertaining to which, the suit has been

decreed.

In case, the cancellation of allotment made in favour of Pura

Ram stands despite the efforts being made by the respondent-

(4 of 4) [CLA-14/2018]

plaintiff seeking to get the same set-aside, the passing of the

decree by the trial court, cannot affect the rights of the appellants.

On the other hand, if the respondent succeeds in getting the

allotment made in favour of Pura Ram upheld, the applicants lose

any kind of interest in the property and therefore, in any case, the

applicants would sink or swim based on the proceedings before

the revenue courts and in so far as, the present litigation is

concerned, they are not affected by the same.

So far as the finding pertaining to the possession of the suit

property is concerned, the same also is inter se Smt. Patti Devi

and Pura Ram / LRs of Pura Ram and the same cannot effect the

status of the applicants, who was not a party to the litigation,

wherein the finding has been recorded and therefore, the

apprehension expressed based on the finding of possession also

has no substance.

In view of the above discussion, no case for grant of leave to

appeal against the impugned decree is made out. The application

is, therefore, dismissed.

Consequently, the appeal also stands dismissed.

It goes without saying that mere fact of dismissal of this

application would not effect the proceedings pending before the

revenue courts.

As the appeal filed by the applicants-appellants has not been

entertained, the court fees paid by the appellants in the first

appeal be refunded to the appellants.

A certificate in this regard be issued by the Registry.

(ARUN BHANSALI),J

31-Rmathur/-

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