Rajasthan High Court
Rambabu Sharma S/O Late Kanheya ... vs State Through Tehsildar on 27 May, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7288/2022
1. Rambabu Sharma S/o Late Kanheya Lal Mahrashi, R/o
Dharmpura, Tehsil And District Jaipur.
2. Ramkishore Sharma S/o Late Kanheya Lal Mahrashi, R/o
Dharmpura, Tehsil And District Jaipur.
3. Shyamlal Sharma S/o Late Kanheya Lal Mahrashi, R/o
Dharmpura, Tehsil And District Jaipur.
----Petitioners
Versus
1. State Through Tehsildar, Jaipur District Jaipur.
2. Jaipur Development Authority, Jaipur Through Secretary
Jda, Indra Circle, Jaipur.
3. Omprakash Sharma S/o Late Kanheya Lal Mahrashi, R/o
Dharmpura, Tehsil And District Jaipur (Since Deceased).
----Respondents
For Petitioner(s) : Mr. Manoj Kumar Bhardwaj with
Mr. M.K. Chaturvedi
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
27/05/2022
This writ petition has been filed by the petitioners/plaintiffs
against the judgment dated 18.10.2019 passed by the Board of
Revenue Rajasthan, Ajmer (for brevity, "BoR") whereby, the
appeal no.TA/18/449/Jaipur preferred by the respondent no.2-
Jaipur Development Authority, against the judgment dated
29.05.2017 passed by the Revenue Appellate Authority (for
brevity, "RAA"), Jaipur dismissing the appeal no.277/2016 against
the judgment dated 23.11.2015 passed by the Court of Assistant
(2 of 5) [CW-7288/2022]
Collector, Jaipur City-I in Revenue Suit no.182/2010 decreeing the
suit of the petitioners/plaintiffs for declaration and permanent
injunction, has been allowed as also against the judgment dated
23.02.2022 passed by the BoR dismissing the Review Petition
no.TA/2019/6771/Jaipur filed by the petitioners.
The facts in brief are that the petitioners/plaintiffs filed a suit
for declaration and permanent injunction qua the land of Khasra
no.1/84 measuring 10 Bigha Village Dharampura Tehsil and
District Jaipur on the premise that their late father Kanhaiya Lal
was in possession of the land and on his application, the Sub-
Tehsildar, Kalwar, vide its orders dated 16.03.1983, 10.10.1983
and 1.10.1984, entered him as "Shikmi Kashtkar" of the aforesaid
land and its subsequent mutation in favour of Jaipur Development
Authority was bad in law. The suit was decreed by the Court of
Assistant Collector vide its judgment dated 23.11.2015 and the
appeal preferred thereagainst by the respondent no.2, the Jaipur
Development Authority came to be dismissed by the RAA vide its
judgment dated 29.05.2017 on the ground of limitation. The
second appeal preferred by the respondent no.2 against dismissal
of their appeal, has been allowed by the BoR vide its judgment
dated 18.10.2019 and the review petition filed thereagainst by the
petitioner has also been dismissed vide order dated 23.02.2022.
Learned counsel for the petitioners made two-fold
submissions while assailing the legality and validity of the
judgment dated 18.10.2019. Firstly, he submitted that the BoR
erred in allowing the second appeal preferred by the respondent
no.2 without setting aside the judgment passed by the RAA
dismissing the appeal on the ground of limitation. Learned counsel
submitted that the BoR has only, in its para 12 of the judgment,
(3 of 5) [CW-7288/2022]
condoned the delay in preferring the second appeal but, nowhere
recorded a finding that dismissal of the first appeal by the RAA on
limitation was bad in law.
Second limb of contention of the learned counsel for the
petitioners is that findings of the learned BoR that the judgment
and decree passed by the learned trial Court are not sustainable in
the eye of law being based on photocopies of the orders dated
16.03.1983, 10.10.1983 and 1.10.1984 which were inadmissible
in evidence, are perverse in as much as it did not appreciate that
vide its order dated 24.03.2015, the learned trial Court has
allowed the application filed by the petitioners under Section 65 of
the Indian Evidence Act, 1872 qua these documents.
With regard to findings of the BoR in its judgment holding
that the orders passed by the Sub-Tehsildar, Kalwar were without
jurisdiction, learned counsel, relying upon a judgment of Hon'ble
Apex Court of India in case of Anita International vs.
Tungabadra Sugar Works Mazdoor Sangh:(2016) 9 SCC 44,
submitted that unless the orders were declared void by a
competent Court, they were valid.
He, therefore, prayed that the writ petition be allowed and
the impugned order dated 18.10.2019 as also the judgment dated
23.02.2022 passed by BoR be quashed and set aside.
Heard. Considered.
Contention of the learned counsel for the petitioners that the
BoR has allowed the second appeal preferred by respondent no.2
without meeting with the reasoning assigned by RAA dismissing
the appeal on the ground of limitation, does not merit acceptance.
In para 15 of the judgment dated 18.10.2019, the BoR has
observed that the RAA was obliged to take into consideration
(4 of 5) [CW-7288/2022]
merits of the case and ought not to have dismissed the first
appeal only on ground of limitation. Further, in para 38 a
categorical finding has been recorded by the BoR that dismissal of
the first appeal by the RAA only on the ground of limitation
without taking into consideration the merits of the case, could not
be justified and the judgment deserved to be set aside. Therefore,
the BoR has set aside the judgment passed by the RAA in
unequivocal terms assigning cogent reasons.
Although, it is true that the learned trial Court has, vide its
order dated 24.03.2015, permitted the petitioners to lead
secondary evidence qua the three orders, i.e., 16.03.1983,
10.10.1983 and 1.10.1984 passed by the Sub-Tehsildar, Kalwar
and findings of the BoR to this extent are perverse but, the
judgment cannot be set aside on this account alone in as much as
the BoR has also recorded a categorical finding that the father of
the petitioners could not have been reckoned as "Shikmi Kashtkar"
by the Sub-Tehsildar as this power vests with the Assistant
Collector/Sub Divisional Officer only. It has also been observed by
the BoR that the learned trial Court did not record a finding as to
under what authority and under which provision of law, father of
the petitioners was declared as "Shikmi Kashtkar" by the Sub-
Tehsildar. Learned counsel for the petitioners did not dispute
merits of the aforesaid observations made by the BoR with regard
to incompetence of the Sub-Tehsildar, Kalwar in recording their
father as "Shikmi Kashtkar", rather, he relied upon a judgment of
Hon'ble Apex Court of India in case of Anita International
(supra) to canvass that even if the orders were void, in absence of
any declaration so made by a competent Court, the BoR could not
have rejected the same, a contention which is wholly
(5 of 5) [CW-7288/2022]
misconceived and misplaced. The Hon'ble Apex Court of India,
relying upon its earlier judgment in case of Krishnadevi
Malchand Kamathia vs. Bombay Environmental Action
Group- (2011) 3 SCC 363 held that it is not open for either of
the parties to a lis or to any third party to determine by their own
that an order passed by the competent Court is valid or void.
Herein, indisputably, the orders which have been held by the BoR
to be null and non est having been passed without authority, have
not been passed by any competent Court.
Since, the edifice of the petitioners' case has been the orders
dated 16.03.1983, 10.10.1983 and 1.10.1984 passed by Sub-
Tehsildar, Kalwar whereby, petitioners' father was recorded as
"Shikmi Kashtkar" qua the land in question and the same have
been found to be non est, in the considered opinion of this Court,
the BoR did not err in allowing the appeal preferred by the
respondent no.2.
The upshot of the aforesaid discussion is that the writ
petition is devoid of merit and is dismissed accordingly.
(MAHENDAR KUMAR GOYAL),J
LAKSHYA SHARMA /43
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