State Of Rajasthan vs Dinesh Chand S/O Motilal ...
2024 Latest Caselaw 5824 Raj/2

Rajasthan High Court

State Of Rajasthan vs Dinesh Chand S/O Motilal ... on 18 September, 2024

[2024:RJ-JP:39386]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 25719/2018

State    Of    Rajasthan,     (Shri     Jaswant        Pradarshi     And   Animal
Husbandry Department Bharatpur) Through Joint Director / Mela
Adhikari, Animal Husbandry Department Bharatpur
                                                                     ----Petitioner
                                      Versus
1.       Dinesh Chand S/o Motilal, R/o Anah Gate, Bazaria,
         District Bharatpur
2.       Om Prakash S/o Motilal, R/o Anah Gate, Bazaria, District
         Bharatpur
3.       Anil Kumar S/o Motilal, R/o Anah Gate, Bazaria, District
         Bharatpur
4.       Smt. Rekha W/o Lokesh Kumar, R/o Anah Gate, Bazaria,
         District Bharatpur
5.       Rajat S/o Lokesh Kumar Minor Through His mother
         Rekha, R/o Anah Gate, Bazaria, District Bharatpur
6.       Hardai W/o Mahesh Chand, R/o Anah Gate, Bazaria,
         District Bharatpur
7.       State Of Rajasthan, Through Tehsildar Bharatpur
                                                                  ----Respondents

Connected With S.B. Civil Writ Petition No. 25953/2018 Tehsildar Through Mela Adhikari, Bharatpur

----Petitioner Versus

1. Dinesh Chand S/o Motilal, R/o Anah Gate, Bazaria, District Bharatpur.

2. Om Prakash S/o Motilal, R/o Anah Gate, Bazaria, District Bharatpur.

3. Anil Kumar S/o Motilal, R/o Anah Gate, Bazaria, District Bharatpur.

4. Rekha W/o Lokesh Kumar, R/o Anah Gate, Bazaria, District Bharatpur.

5. Rajat S/o Lokesh Kumar, Minor Through His mother Rekha, R/o Anah Gate, Bazaria, District Bharatpur.

[2024:RJ-JP:39386] (2 of 5) [CW-25719/2018]

6. Hardai W/o Mahesh Chand, R/o Anah Gate, Bazaria, District Bharatpur.

7. State Of Rajasthan Through Tehsildar, Bharatpur.

8. State Of Rajasthan Through District Collector, Bharatpur.

----Respondents

For Petitioner(s) : Ms.Mahi Yadav, AAG with Ms. Archana, Adv. & Mr.Rahul Kumar, Adv.

For Respondent(s) : Mr.Ram Prasad Sharma, Adv. & Mr.K.S. Rajawat, Adv. for Mr.Prahlad Sharma, Adv.

HON'BLE MR. JUSTICE AVNEESH JHINGAN Order 18/09/2024

1. These writ petitions are being decided by common order as

the facts and issue involved are same. For the sake of

convenience, the facts are being taken from S.B. CWP

No.25719/2018.

2. These petitions are filed aggrieved of order dated

22.03.2018 passed by the Board of Revenue, Rajasthan, Ajmer

(for short 'the Board') dismissing the appeal No.7616/2015

preferred by the State and allowing the appeal no.3937/2015

preferred by the respondents-Dinesh Chand and Om Prakash.

3. The brief facts are that Dinesh Chand and Om Prakash filed a

suit pleading that land in question was possessed by their

ancestors. Initially, Nandkumar@Gurumukhdas, who adopted

Motilal was cultivating the land and after his death the land was in

possession of Motilal. The plaintiff/defendants No.1 to 3 were in

possession of the land after the death of Motilal, albeit, in the

revenue records entries in the name of Nandkumar@

Gurumukhdas was continuing as gair khatedar. Suit for partition

and permanent injunction was decreed on 09.02.2015. The

[2024:RJ-JP:39386] (3 of 5) [CW-25719/2018]

plaintiffs filed an appeal with prayer that measurement of the land

in question be carried out, new khasra be assigned and correct

Milan Kshetraphal be made. The Appellate Authority allowed the

appeal. The second appeal No.3937/2015 was filed by the

plaintiffs while State filed Second Appeal No.7616/2015 through

Mela Adhikari, Animal Husbandry Department. The Board of

Revenue by common order dated 22.3.2018 accepted the appeal

of the plaintiffs and dismissed the appeal of the State. Hence, the

present petition.

4. Counsel for the petitioner submits that land in question was

entered in the name of Jashwant Pradarshani and Animal

Husbandry Department, Bharatpur (for short 'husbandry

department), in revenue record and the appellate authority

directed to change the revenue entries by deleting name of

husbandry department from the khasra numbers and restricting

the entry to khasra Nos.3228 to 3230 rakba 0.87 hectare. The

order was passed without impleading the husbandry department

as party or giving opportunity of hearing. The contention is that

the effect of dismissal of civil suit No.382/2002 and appeal

No.166/2003 was not considered. The argument is that after

death of Gurmukhdas the land of khasra No.956 vested in State

and the adoption of Motilal by Gurumukhdas was not proved.

5. As per contra, the appellate authority had directed that the

revenue entries be made in favour of husbandry department in

khasra No.3228 to 3230. The husbandry department has no right

in khasra No.3231 to 3240 for which mutation was ordered to be

made in favour of the plaintiffs. The contention is that petitioner is

not affected by revenue entries of Khasra No.3231 to 3240.

[2024:RJ-JP:39386] (4 of 5) [CW-25719/2018]

6. Before proceeding further, it would be relevant to quote, the

translation of operative part of order of appeal dated 26.06.2015:-

"Therefore, it is ordered that as per above the appellant is declared khatedar of the total land 10 raqba 0.85 hectare of the correct form of new khasra number 3231/0.12 and 3232/0.01 and 3233/0.12 and 3234/0.04 and 3235/0.08 and 3239/0.08 and 3240/0.16 and 3236/0.06 and 3237/0.10 and 3238/0.08 made from the old khasra number 956 raqba 5 beegha 7 biswa. After cancelling the present entry of Jaswant Pradarshani on these khasra numbers, khasra number 3228, 3229, 3230 rakba 0.87 hectare should be registered in the name of Jaswant Pradarshani. On 3.6.2015, a compromise deed was presented by the appellant, which was certified. According to which, appellant 1. Omprakash 15 Are appellant 2. Dinesh Chand 41 Are respondent 1. Anil kumar 14 Are respondent 2. with 4 jointly of 15 Are will be khatedar tenants and it is ordered to register the khatedars accordingly in the revenue record."

7. The appellate authority noted the fact that revenue entry

was in the name of husbandry department and the order was

passed for deleting name of husbandry department from the

revenue record viz-a-viz khasra No.3231/0.12, 3232/0.01,

3233/0.12, 3234/0.04, 3235/0.08, 3239/0.08, 3240/0.16,

3236/0.06, 3237/0.10, 3238/0.08 total measuring land 10 Rakba

0.85 Hectare and restricted the entry qua husbandry department

in khasra No.3228 to 3230. The directions were issued at back of

husbandry department. The appellate authority passed the order

solely on the basis of report submitted by the Tehsildar without

[2024:RJ-JP:39386] (5 of 5) [CW-25719/2018]

there being spot inspection or the objection being invited on the

report submitted by the Tehsildar.

8. The appellate authority and Board had taken into

consideration that there was change in Khasra Numbers. The

Board of Revenue on the basis that the land in question was in

possession of respondent, upheld the order of the appellate

authority. Board assumed that animal fair by husbandry

department was being held in khasra Nos.3228 to 3230 as pond

situated there was filled with water.

9. Another aspect is that the board allowed the application

under Order 41 Rule 27 CPC taking on record the judgment and

decree passed in civil suit No.382/2002 and order in appeal but

effect of these was not considered.

10. The Board noted contentions of the petitioner that the

appellate authority passed an adverse order at the back of the

petitioner but never dealt with it.

11. In view of the above and considering the fact that order

against the petitioner was passed without providing opportunity of

hearing or impleading as party, the orders of the Board and

appellate authority are set aside. The matter is remanded to the

First Appellate Authority to decide the appeal afresh in accordance

with law, after providing opportunity of hearing to the affected

parties.

12. The writ petitions are allowed.

13. Pending application(s), if any, stands disposed of.

                                                                                               (AVNEESH JHINGAN),J
                                   Brijesh/39-40
                                                           Whether Reportable:         Yes








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