Narayan Lal vs Board Of Revenue Rajasthan,Ajmer ...
2021 Latest Caselaw 16877 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16104/2017

Narayan Lal S/o Deta, By Caste Kalal R/o Karawada, Tehsil Kherwada, Distt. Udaipur.

----Petitioner Versus

1. Board Of Revenue For Rajasthan, At Ajmer.

2. Revenue Appellate Authority, Udaipur.

3. Sub Divisional Officer, Distt. Udaipur.

4. Tehsildar Kherwada, Distt. Udaipur.

5. Kura S/o Hakra

6. Smt. Champa Wd/o Heera, R/o Karawada, Tehsil Kherwada, Distt. Udaipur.

7. Smt. Chambhi @ Chunni Deceased Wd/o Heera, R/o Rishabhdev, Tehsil Kherwada, Distt. Udaipur.

8. Smt. Shanti W/o Heera Lal D/o Dita, R/o Thana, Tehsil Kherwada

9. Manju D/o Dita, R/o Bhilakhai, Tehsil Kherwada, Distt.

Udaipur.

                                               ----Respondents



For Petitioner(s)        :     Mr.   Manohar Singh Rathore
For Respondent(s)        :     Mr.    SP Sharma
                               Mr.   Bheem Kant Vyas
                               Mr.   Prateek Charan

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

12/11/2021

In wake of second surge in the COVID-19 cases, abundant

caution is being maintained, while hearing the matters in Court,

for the safety of all concerned.

The petitioner has preferred this writ petition under Article

226/227 of the Constitution of India claiming the following reliefs:

"(i) By an appropriate writ, direction or order, the impugned judgment dated 05.07.2017 passed by the Board of Revenue so also the order dated 20.11.2017

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passed by the Board of Revenue in Review Petition No.4765/2017 may kindly be quashed and set aside.

(ii) By an appropriate writ, direction or order, the orders dated 07.04.1998 passed by the Sub Divisional Officer, Salumbar and order dated 27.03.2001 passed by the Revenue Appellate Authority, Udaipur may kindly be restored. "

Learned counsel for the petitioner submits that the

respondent No.5 filed a revenue suit before the Sub Divisional

Officer, Salumbar, District Udaipur for declaration of title and

partition of the land under Sections 88 and 53 of the Rajasthan

Tenancy Act, 1955, which was registered as suit No.27/1988. The

dispute was between the two brothers Kalu and Hakra travelling to

their successors. Learned counsel for the petitioner further

submits that the land in question is situated in Khata No.7, Khasra

No.25, Rakba 9 Bigha and 18 Biswa in village Karwada. The

learned Sub Divisional Officer, Salumbar dismissed the suit vide

order dated 07.04.1998. It is also contended that the plaintiffs-

respondents, who was in the shoes of Hakra filed an appeal before

the revenue appellate authority under Section 223 of the Act of

1955 being appeal No.65/1998, challenging the judgment and

decree dated 07.04.1998 passed by learned Sub Divisional Officer,

Salumbar, District Udaipur. The revenue appellate authority again

dismissed the appeal filed by the plaintiffs-respondents vide

judgment dated 27.03.2001.

Learned counsel for the petitioner further submits that the

plaintiffs-respondents no.5, who was in the shoes of Hakra further

filed a second appeal before the Board of Revenue, Ajmer being

appeal No.1989/2001 under Section 224 of the Act of 1955. It is

also contended by learned counsel for the petitioner that after two

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consecutive orders against the respondent No.5, the burden on

merits heavily weighed upon the plaintiff-respondent No.5.

Learned counsel for the petitioner also submits that the main

ground of dismissing the earlier two litigation preferred by

respondent No.5 was that he could not produce any document,

which could show that it was an ancestral land, which required

partition.

Learned counsel for the petitioner further submits that

suddenly while an order was being passed by the Board of

Revenue, Ajmer, an application came out to be dealt with under

Order 41 Rule 27 CPC in the main judgment itself, in which a patta

has been taken on record and according to that patta, the

judgment was passed on 27.03.2001, while setting aside the

earlier orders.

Learned counsel for the petitioner further submits that at

best, the Board of Revenue, Ajmer, while deciding the second

appeal against the present petitioner could have taken the

evidence regarding the patta in-question and given sufficient

opportunity to the petitioner before arriving at a conclusion solely

based on the patta/document. Learned counsel for the petitioner

also submits that the manner, in which the application under

Order 41 Rule 27 CPC has been dealt with in the final judgment

creates imbalance of opportunity against the present petitioner, as

he never got an opportunity to contradict, confront or deny the

document in-question.

Learned counsel for the petitioner has relied upon the

judgment rendered by Hon'ble Apex Court in the matter of

Corporation of Madras and Anr. Vs M. Parthasarathy & Ors.,

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reported in AIR 2018 SC 3777. The relevant portion of the said

judgment reads as follows:-

"14) In our considered opinion, the first Appellate Court committed two jurisdictional errors in allowing the appeals.

15) First, it took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the appellants herein (who were respondents in the first appeals) to file any rebuttal evidence to counter the additional evidence adduced by the respondents (appellants before the first Appellate Court). This caused prejudice to the appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the respondents for the first time in appeal against them. (See Land Acquisition Officer, City Improvement Trust Board vs. H. Narayanaiah & Ors., (1976) 4 SCC 9, Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineries) & Ors., (2010) 8 SCC 423 and Akhilesh Singh vs. Lal Babu Singh & Ors., (2018) 4 SCC 759).

16) Second error was of a procedure which the first Appellate Court failed to resort in disposing of the appeals. This also involved a question of jurisdiction.

17) Having allowed the CMP No.1559/1993 and, in our opinion rightly, the first Appellate Court had two options, first it could have either set aside the entire judgment/decree of the Trial Court by taking recourse to the provisions of Order 41 Rule 23A of the Code and remanded the case to the Trial Court for retrial in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or second, it had an option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the Trial Court for limited trial

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on particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the Trial Court on such limited issues to enable the first Appellate Court to decide the appeals on merits.

18) The first Appellate Court failed to take note of both the above mentioned provisions and proceeded to allow it wrongly.

19) Due to these two jurisdictional errors committed by the first Appellate Court causing prejudice to the appellants herein while opposing the first appeals, the judgment rendered by the first Appellate Court, in our opinion, cannot be sustained legally on merits.

20) The High Court also while deciding the second appeals failed to notice these two jurisdictional legal errors which went to the root of the case. It is for this reason, the impugned order also cannot be legally sustained calling interference by this Court.

21) In the light of the foregoing discussion and having regard to the totality of the facts of the case and to enable the parties to have full and fair trial, we consider it proper to take recourse to the powers under Order 41 Rule 23A of the Code and accordingly set aside the judgment and decree of the first Appellate Court to the extent it allows the respondents' appeals on merit but at the same time uphold that part of the order which has allowed CMP No.1559/1993 filed by the plaintiffs for adducing additional evidence and remand the cases to the Trial Court for retrial of all the four civil suits on merits afresh.

22) All parties to the four civil suits (appellants and the respondents) are allowed to amend their respective pleadings, if they wish to do so. The appellants are allowed to adduce additional evidence in rebuttal. Let the additional evidence taken on record by the first Appellate Court be remitted to the Trial Court for its proving in evidence in accordance with law. The Trial Court, if considered appropriate, can also frame additional issues.

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    Parties   will   be   allowed         to   adduce       their      oral   and
    documentary      evidence        in     addition       to    one     already
    adduced.

23) The Trial Court will then decide the suits afresh on merits on the basis of entire evidence without being influenced by any of the previous orders/judgments rendered in this case including this order because having formed an opinion to remand the case for re trial, we have refrained from entering into the merits of the issues. Let the trial be over within one year.

24) In view of the foregoing discussion the appeals succeed and are allowed. Impugned order is set aside."

Learned counsel for the petitioner has also relied upon the

judgment rendered by Hon'ble Apex Court in the matter of

Akhilesh Singh @ Akhileshwar Singh Vs. Lal Babu Singh &

Ors. reported in AIR 2018 SC 1240, in which, the Hon'ble Apex

Court has set aside the order where the application under Order

41 Rule 27 CPC was allowed without giving proper opportunity to

the other party to lead evidence in rebuttal, the relevant portion of

which reads as follows:-

"14.A three-Judge Bench of this Court in Land Acquisition Officer, City Improvement Trust Board Vs. H. Narayanaiah & Ors., (1976) 4 SCC 9 had occasion to consider Order LXI Rule 27 in context of admission of additional evidence by Appellate Court. This Court had observed that in event the High Court admits an additional evidence, an opportunity should have been given to the other party to rebut any inference arising from its existence by leading evidence. In Para 28 of the judgment, following has been laid down:-

"28. The Karnataka High Court had, however, not complied with provisions of Order 41 Rule 27 of the CPC which require that an appellate court should be satisfied

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that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27 Order 41 of the CPC We are of opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence." (emphasis supplied by us)

15.To the same effect is another judgment of this Court in the case of Shalimar Chemical Works Limited Vs. Surendra Oil and Dal Mills (Refineries) & Ors., (2010) 8 SCC 423. In this case also, the Court had occasion to consider Order LXI Rule 27, this Court has again laid down that when documents are taken in additional evidence, an opportunity ought to have been given to other party to lead evidence in rebuttal. In the above case also, the High Court simultaneously proceeded to decide the appeal alongwith admitting additional evidence on record. In Paragraphs 16 to 18 following has been laid down:-

"16. The learned Single Judge rightly allowed the appellant's plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause

(b) of Order 41 Rule 27. But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the respondent-defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.

17. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41

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Rule 27. As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the respondent-defendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to the respondent- defendants to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so.

18. The judgment and order dated 25-4-2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the originals of the registration certificates were taken on record as additional evidence. The learned Single Judge may allow the respondent-defendants to lead any rebuttal evidence or make a limited remand as provided under Order 41 Rule 28."

16.The submission of the learned counsel for the respondents that execution of sale deeds was never denied by the present appellant before the High Court, hence no error has been committed by the High Court in relying on the contents in the sale deed cannot be accepted. Even if, execution of sale deeds was not denied, the Appellate Court before which any statement in sale deeds is relied ought to have given an opportunity to lead evidence in rebuttal or to explain the admission. Opportunity to explain the admission contained in the sale deeds was necessary to be given to the contesting party in the facts of the present case. We thus are of the opinion that the High Court erred in simultaneously proceeding with the hearing of the appeal after admitting

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additional evidence on record. The High Court ought to have given opportunity to contesting respondents in the First Appeal to lead evidence in rebuttal or to explain the alleged admission as contained in the sale deed, which having not been done, the order and judgment of the High Court deserves to be set aside. The High Court may now proceed to decide the appeal afresh after giving an opportunity to the present appellant to lead evidence in rebuttal. The appeal before the High Court being pending since 1976, we expect that the High Court should conclude the entire process expeditiously preferably within a period of six months from the date of production of this judgment before the High Court. We make it clear that we have not expressed any opinion on merits of the case and it is for the High Court to consider the First Appeal on merits afresh and take a decision in accordance with law. In result, this appeal is allowed, judgment and decree of the High Court is set aside. The First Appeal be decided by the High Court afresh as observed above. Parties shall bear their own costs."

Learned counsel for the respondent No.5 submits that the

application under Order 41 Rule 27 of CPC was preferred in year

2015 for the patta in-question well in advance and it was upto the

respondent to have responded or challenged the same and once

the learned second appellate court has recorded that there is no

opposition to the patta then there is no question of pleading any

evidence or proving the document itself.

This Court, after careful perusing the record of the case as

well as the precedent law cited by learned counsel for the

petitioner, is of the opinion that the contest between the two

brothers i.e. Kalu and Hakra, which has resulted into the

proceedings was at a stage where any reversal by the second

appellate court to the two consecutive proceedings before the Sub

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Divisional Officer, Salumbar, Udaipur and revenue appellate court

ought to have proceeded more cautiously to accept any document

causing reversal of the consecutive findings. The contest of the

application under order 41 Rule 27 of CPC has not been properly

considered, because it has been cursorily discussed while passing

the final order by the Board of Revenue, Ajmer or in the second

appeal.

The precedent law of Corporation of Madras (Supra) is

applicable in the present matter, as the second appellate Court

considering the additional piece of evidence, which is focal to the

present dispute and deciding the appeal on merits without giving

an opportunity to the petitioner to file any rebuttal or counter or

any other denial is apparently against the settled principles of law.

It is not that the second appellate court could not exercise the

power under Order 41 Rule 27 of CPC, but the same could not

have been done summarily at the time of deciding the final

judgment. In case, the same was required to be decided then the

Board of Revenue should have allowed the parties to contest the

same and then pass a reasoned and speaking order for taking the

documents on record after completion of the proceedings while

giving proper opportunity to one party to lead evidence on the

issue while other party could have done the necessary rebuttal.

The reversal of two consecutive findings by the Board of

Revenue on the basis of a document, which has been dealt with

cursorily only while passing the final order, does not induce the

confidence of this Court, as it prejudices the rights of the

contesting party against whom the order has been passed.

In light of the aforesaid discussion, the present petition is

allowed and the impugned order dated 05.07.2017 passed by the

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Board of Revenue as well as the order dated 20.11.2017 passed

by the Board of Revenue in Review Petition No.4765/2017 are

quashed and set aside. In the interest of justice, the earlier order

dated 07.04.1998 passed by Sub Divisional Officer, Salumbar,

District Udaipur and order dated 27.03.2001 passed by the

revenue appellate authority are also hereby quashed and the

matter is remanded back to the Sub Divisional Officer, Salumbar,

District Udaipur to decide the suit afresh for declaration of title

and partition of the land in-question under Section 88 and 53 of

the Rajasthan Tenancy Act, 1955.

The parties shall be permitted to make fresh pleadings in a

time-bound manner after adopting due process of law. Both the

parties shall be given full time-bound opportunity to complete

their pleadings and raise their all submissions before the Sub

Divisional Officer, Salumbar, who shall decide the controversy

afresh, strictly in accordance with law.

On the joint request of both the parties, the parties are

directed to appear before the Sub Divisional Officer, Salumbar,

District Udaipur on 09.12.2021. However, since the matter has

remained under adjudication for long time, therefore, the Sub

Divisional Officer is directed to complete the proceedings

expeditiously, strictly in accordance with law.

Stay petition as well as all pending applications also stand

disposed of accordingly.

(DR.PUSHPENDRA SINGH BHATI),J.

16-Sudheer/-

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