Rajasthan High Court - Jodhpur
Smt. Koyali vs Lrs Of Giridhari And Ors. ... on 27 October, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:46204]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 10317/2009
Urban Improvement Trust now Jodhpur Development Authority,
Jodhpur through its Commissioner, Jodhpur Development
Authority, Jodhpur.
----Petitioner
Versus
1. Girdhari S/o Shri Kumbha Ram through his LRs -
1/1. Smt. Jhamku widow of Late Shri Girdhari Ram,
resident of Khadav Sadan, Near Dali Bai Mandir, Pal
Chopasani Ring Road, Pal, Jodhpur.
1/2.Pappu Ram S/o Late Sh. Girdhari Ram, Through His
LRs -
1/2/1.Smt. Pepi Devi W/o Late Shri Pappu Ram, Aged
About 52 Years, Resident Of Khadav Sadan, Near Dali Bai
Mandir, Pal Chopasani Ring Road, Pal, Jodhpur (Raj.).
1/2/2.Ramesh S/o Late Shri Pappu Ram, Aged About 28
Years, Resident Of Khadav Sadan, Near Dali Bai Mandir, Pal
Chopasani Ring Road, Pal, Jodhpur (Raj.).
1/2/3.Suresh S/o Late Shri Pappu Ram, Aged About 26
Years, Resident Of Khadav Sadan, Near Dali Bai Mandir, Pal
Chopasani Ring Road, Pal, Jodhpur (Raj.).
1/2/4.Smt. Guddi Devi D/o Late Shri Pappu Ram, W/o
Daula Ram, Aged About 30 Years, Resident Of Bheru
Nagar, Sangariya Salawas Road, Jodhpur (Raj.).
1/2/5.Smt. Pinky D/o Late Shri Pappu Ram, W/o Mahendra
Ram, Aged About 25 Years, Resident Of Jaton Ka Baas,
Boranada, Jodhpur (Raj.).
1/2/6.Smt. Dimple D/o Late Shri Pappu Ram, Aged About
23 Years, Resident Of Khadav Sadan, Near Dali Bai Mandir,
Pal Chopasani Ring Road, Pal, Jodhpur (Raj.).
1/3.Hanuman Ram S/o Late Sh. Girdhari Ram, Resident Of
Khadav Sadan, Near Dali Bai Mandir, Pal Chopasani Ring
Road, Pal, Jodhpur.
1/4.Narpat Ram S/o Late Sh. Girdhari Ram, Resident Of
Khadav Sadan, Near Dali Bai Mandir, Pal Chopasani Ring
Road, Pal, Jodhpur.
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1/5. Madan Lal S/o Late Sh. Girdhari Ram, Resident Of
Khadav Sadan, Near Dali Bai Mandir, Pal Chopasani Ring
Road, Pal, Jodhpur through natural guardian Hanuman
Ram.
1/6.Meena Devi W/o Chaina Ram Saran, D/o Late Shri
Girdhari Ram, R/o Village Nerwa, Tehsil Tieari, District
Jodhpur.
1/7.Baya Devi W/o Doonger Ram, D/o Late Shri Girdhari
Ram, R/o Village Nandanvan Tehsil Luni District Jodhpur.
2. Koyali W/o Late Bhera Ram, R/o Pal Thodiyon Ki Dhani,
Jodhpur.
3. Hanuman Ram S/o Girdhari Ram, B/c Jat, R/o Pal Thodiyon
Ki Dhani, Jodhpur.
4. Dwarka Prasad Tapadiya S/o Maheshwari, Radha Bhawan,
Paota, Mandore Road, Jodhpur.
5. Viram Singh S/o Bhom Singh, B/c Rajput R/o 236, New Bjs
Colony, Jodhpur.
6. State Of Rajasthan, Through Tehsiladar, Jodhpur.
7. Deputy Inspector General Of Stamps, Jodhpur.
8. Prem Singh S/o Shri Sujan Singh, Aged About 40 Years, R/
o Basni Iind Phase, Jodhpur.
9. Parasnath S/o Jeewan Nath, Aged About 35 Years, B/c
Nath R/o Juni Mandi, Jodhpur.
10. Divya Daga D/o Shri Vinod Daga, R/o Nehru Park, Jodhpur.
11. Dimpal Daga W/o Shri Amit Daga, R/o Sardarpura,
Jodhpur.
12. Shradha Daga W/o Shri Dalpat Daga, R/o D-33, Shastri
Nagar, Jodhpur.
13. Ramesh Gehlot S/o Shri Srikishan Gehlot, R/o Sadarpura C
Road, Jodhpur.
14. Praveen Kathad S/o Shri Lalchand, R/o Sardarpura,
Jodhpur.
15. Gokul Vaishnav S/o Shri Paras Ram Vaishnav, R/o
Chandlav, Jodhpur.
16. Abdul Mazid S/o Shri Ashak Ali, R/o Bamba, Jodhpur.
17. Om Prakash S/o Shri Ashak Ali, R/o Bamba, Jodhpur.
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18. Jugal Kishore S/o Shri Satya Narain, R/o Chandna Bhakar,
Jodhpur.
19. Setha Ram S/o Rana Ram, R/o Birai, Jodhpur.
20. Kuldeep Gehlot S/o Shri Govind Gehlot, R/o Soorsagar,
Jodhpur.
21. Govind Ram Gehlot S/o Nthmal Gehlot, R/o Soorsagar,
Jodhpur.
22. Sunil Nath S/o Shri Sumernath Modi, R/o Sardarpura,
Jodhpur.
23. Rakesh Mehta S/o Shri Nemichand Mehta, R/o Sardarpura,
Jodhpur.
24. Laxman Das S/o Shri Dhanna Ram, R/o Laxmi Nagar,
Jodhpur.
25. Pradeep Singh S/o Heera Singh, R/o Kali Beri, Jodhpur.
26. Shravan Gujar S/o Shri Jetha Ram Gujar, R/o Bhagat Ki
Kothi, Jodhpur.
27. Sumernath S/o Shaobhagyanath Modi, R/o Sardarpura,
Jodhpur.
28. Smt. Pramila Singh S/o Shri Pradeep Singh, R/o Kali Beri,
Jodhpur.
29. Pawan Burad S/o Shri Mangilal, R/o Roop Enclave, Jodhpur.
30. Ramesh Mohnot S/o Shri Shesh Raj, R/o Sardarpura,
Jodhpur.
31. Om Prakash S/o Shri Hari Ram, R/o Masuria, Jodhpur.
32. Prakash Bafna S/o Shri Ramlal, R/o Sardarpura, Jodhpur.
33. Asha Ram S/o Basti Ram Suthar, R/o Masuria, Jodhpur.
34. Gopi Kishan S/o Shri Shyamlal, R/o Baldev Nagar, Jodhpur.
35. Manish Gehlot S/o Shri Govind Gehlot, R/o Soorsagar,
Jodhpur.
36. Gajendra Singh S/o Om Singh, R/o Bhadwasia, Jodhpur.
37. Janwari Lal S/o Naru Ram, B/c Mali, R/o Village Birani,
Tehsil Bhopalgarh District Jodhpur.
38. Promod Kumar Sharma S/o Ganesh Narain, B/c Brahmin
R/o 17/443, Chb, Jodhpur.
39. Najendra Singh Shekhawat S/o Shri Ranveer Singh
Shekhawat, B/c Rajput R/o 111, Central School Scheme,
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Airforce Area, Jodhpur.
40. Smt. Babita Sharma W/o P.s. Sharma, B/c Suthar R/o 594,
V.b. Road, Sardarpura, Jodhpur.
41. Smt. Vishnu Kumari W/o Shri Ranveer Singh Shekhawat,
B/c Rajput R/o 111, Central School Scheme, Airforce Area,
Jodhpur.
42. Smt. Bhagwati Devi Gaur W/o Shri Pramod Kumar, B/c
Brahmin, R/o 17/443, Chb, Jodhpur.
43. Smt. Shalini Gaur W/o Gaurav Gaur, B/c Brahmin, R/o
17/443, Chb, Jodhpur.
44. Gaurav Gaur S/o Shri Pramod Kumar Sharma, B/c
Brahmin, R/o 17/443, Chb, Jodhpur.
45. Sunita Pareek W/o Rajendra Pareek, B/c Pareek Brahmin
R/o D/72, Shastri Nagar, Jodhpur.
46. Suman Chandak W/o Harish Chandak, R/o 155, Jwala
Vihar, Chopasni, Jodhpur.
47. Sunita Chandak W/o Sunil Chandak, R/o P.n. 72, Jwala
Vihar, Jodhpur.
48. Manorama Kanwar W/o Ratan Singh, R/o 42-E, Pratap
Nagar, Jodhpur.
49. Govind Narayan Khandelwal, R/o Near Anand Cinema,
Sojati Gate, Jodhpur.
50. Pushpa D/o Mohan Singh, R/o 43-E, Pratap Nagar,
Jodhpur.
51. Nisha Jain W/o Manoj Jain, R/o Near Nainji Mandir, Udai
Mandir, Jodhpur.
52. Smt. Vinita Jain W/o Mukesh Jain, R/o Near Nainji Mandir,
Udai Mandir, Jodhpur.
53. Smt. Rajshree Jain W/o Rajesh Jain, R/o Near Nainji
Mandir, Udai Mandir, Jodhpur.
54. Smt. Rina Jain W/o Pankaj Jain, R/o Near Nainji Mandir,
Maliyo Ki Gali, Udai Mandir, Jodhpur.
55. Smt. Indrawati Mathur W/o Govind Prakash Mathur, R/o
House No. 16/519, Chb, Jodhpur.
----Respondents
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Connected With
S.B. Civil Writ Petition No. 5653/2007
Vikram Singh Rajvi S/o Shri Bhom Singh, Aged about 50 years,
R/o 236, New BJS Colony, Jodhpur, Rajasthan.
----Petitioner
Versus
1. Board of Revenue, Ajmer.
2. Ramesh Gehlot S/o Shri Kishan Gehlot, R/o Sardarpura, 'Ç'
Road, Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 5654/2007
Dwaraka Prasad Taparia S/o Shri Veer Chand Taparia, Aged 52
years, By Caste Maheshwari, resident of the Opposite Chomu
House, Near Manodre Mandi, Mandore Road, Jodhpur.
----Petitioner
Versus
1. Board of Revenue, Ajmer.
2. Ramesh Gehlot S/o Srikishan Gehlot,By Caste Mali, Resident
of Ç Road, Sardarpura, Jodhpur.
3. Urban Improvement Trust, Jodhpur through its Secretary, UIT,
Jodhpur.
4. Vikram Singh S/o Sh. Bhom Singh, By Caste Rajvi, Resident
of 236, New BJS Colony, Paota, Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 6421/2007
Rakesh Mehta, aged about 33 years, S/o Shri Nemi Chand Ji Jain,
by caste Jain, R/o 1st B Road, Sardarpura, Jodhdpur.
----Petitioner
Versus
1. The State of Rajasthan through the Secretary, Government of
Rajasthan, Jaipur.
2. The Divisional Commissioner, Jodhpur.
3. The Jodhpur Development Authority, Jodhpur through its
Secretary.
4. Shri Dwarka Prasad Tapariya S/o Shri Veer Chand Ji, by caste
Tapariya, resident of Radha Bhawan, Mandore Road, Paota,
Jodhpur.
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5. Shri Vikram Singh Rajvi s/o Shri Bhom Singh Rajvi, by caste
Rajput, resident of 236, New BJS Colony, Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 5641/2018
Smt. Koyali Widow Of Late Shri Bhera Ram, aged about 82 years,
By Caste Jat, Resident Of Pal Dhorio Ki Dhani, Tehsil And District
Jodhpur (Raj.).
----Petitioner
Versus
1. Legal Representatives Of Late Shri Giridhari S/o Shri
Kumbha Ram-
1/1. Smt. Jhamku widow of Late Shri Girdhari
1/2. Hanumanaram
1/3. Narpatram
1/4. Madan Lal, mentally retarded represented through his
natural guardian & mother-Smt. Jhamku;
sons of Girdhari, b/c Jats, Resident of Pal Dhorio Ki
Dhani, Tehsil & District Jodhpur.
1/5. Smt. Meemi Devi D/o Girdhari & W/o Shri Chainaram,
b/c Jat, resident of village Nekha, Tehsil Tinwari
District Jodhpur.
1/6. Smt. Baya D/o Girdhari & W/o Shri Doongaram,
by caste Jat, R/o Village Nandwan Tehsil Looni,
District Jodhpur.
2. State Of Rajasthan Through The Tehsildar, Jodhpur.
3. Urban Improvement Trust, Jodhpur (Now Jodhpur
Development Authority, Jodhpur) through its Secretary.
4. Hanuman Ram S/o Shri Girdhari Ram, B/c Jat, R/o Pal
Dhorio Ki Dhani, Tehsil And District Jodhpur.
5. Dwaraka Prasad Tapadia, B/c Maheshwari, R/o Radha
Bhavan, Paota, Mandor Road, Jodhpur.
6. Vikram Singh S/o Shri Bhom Singh, B/c Rajput, Resident
Of 236 New Bjs Colony, Jodhpur.
7. Board Of Revenue, Rajasthan, Ajmer.
----Respondents
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S.B. Civil Writ Petition No. 6926/2018
Smt. Koyali Widow Of Late Shri Bhera Ram, aged about 72 years,
By Caste Jat, Resident Of Pal Dhorio Ki Dhani, Tehsil And District
Jodhpur (Raj.).
----Petitioner
Versus
1. Legal Representatives Of Late Shri Giridhari S/o Shri
Kumbha Ram :
1/1. Smt. Jhamku widow of Late Shri Girdhari
1/2. Hanumanram
1/3. Narpatram
1/4. Madan Lal, mentally retarded represented through his
natural guardian & mother-Smt. Jhamku;
sons of Girdhari, b/c Jats, Resident of Pal Dhorio Ki
Dhani, Tehsil & District Jodhpur.
1/5. Smt. Meemi Devi D/o Girdhari & W/o Shri Chainaram,
b/c Jat, resident of village Nekha, Tehsil Tinwari
District Jodhpur.
1/6. Smt. Baya D/o Girdhari & W/o Shri Doongaram,
by caste Jat, R/o Village Nandwan Tehsil Looni,
District Jodhpur.
2. State Of Rajasthan Through The Tehsildar, Jodhpur.
3. Urban Improvement Trust, Jodhpur (Now Jodhpur
Development Authority, Jodhpur) Through Its Secretary.
4. Hanuman Ram S/o Shri Girdhari Ram, B/c Jat, R/o Pal
Dhorio Ki Dhani, Tehsil And District Jodhpur.
5. Dwaraka Prasad Tapadia, B/c Maheshwari, R/o Radha
Bhavan, Paota, Mandor Road, Jodhpur.
6. Vikram Singh S/o Shri Bhom Singh, B/c Rajput, Resident
Of 236 New Bjs Colony, Jodhpur.
7. Board Of Revenue, Rajasthan, Ajmer.
----Respondents
S.B. Civil Writ Petition No. 6967/2018
Smt. Koyali Widow Of Late Shri Bhera Ram, aged about 82 years,
By Caste Jat, Resident Of Pal Dhorio Ki Dhani, Tehsil And District
Jodhpur (Raj.).
----Petitioner
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Versus
1. Gajendra Singh S/o Om Singh, By Caste Rajput, Resident
Of Bhadvasia, District Jodhpur.
2. Shri Giridhari S/o Shri Kumbha Ram (Deceased):-
Represented Through His Legal Representatives :
2/1. Smt. Jhamku widow of Late Shri Girdhari
2/2. Hanumanaram
2/3. Narpatram
2/4. Madan Lal, mentally retarded represented through his
natural guardian & mother-Smt. Jhamku;
all sons of Girdhari, b/c Jats, Resident of Pal Dhorio Ki
Dhani, Tehsil & District Jodhpur.
2/5. Smt. Meemi Devi D/o Girdhari & W/o Shri Chainaram,
b/c Jat, resident of village Nekha, Tehsil Tinwari
District Jodhpur.
2/6. Smt. Baya D/o Girdhari & W/o Shri Doongaram,
by caste Jat, R/o Village Nandwan Tehsil Looni,
District Jodhpur.
3. State Of Rajasthan Through The Tehsildar, Jodhpur.
4. Urban Imrovement Trust, Jodhpur (Now Jodhpur
Development Authority, Jodhpur) Through Its Secretary.
5. Hanuman Ram S/o Shri Girdhari Ram, B/c Jat, R/o Pal
Dhorio Ki Dhani, Tehsil And District Jodhpur.
6. Dwaraka Prasad Tapadia, B/c Maheshwari, R/o Radha
Bhavan, Paota, Mandor Road, Jodhpur.
7. Vikram Singh S/o Shri Bhom Singh, B/c Rajput, Resident
Of 236 New Bjs Colony, Jodhpur.
8. Board Of Revenue, Rajasthan, Ajmer.
----Respondents
S.B. Civil Writ Petition No. 7476/2018
Smt. Koyali Widow Of Late Shri Bhera Ram, aged about 72 years,
By Caste Jat, Resident Of Pal Dhrio Ki Dhani, Tehsil And District
Jodhpur (Raj.).
----Petitioner
Versus
1. Legal Representatives Of Late Shri Giridhari S/o Shri
Kumbha Ram :-
1/1. Smt. Jhamku widow of Late Shri Girdhari
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1/2. Hanumanaram
1/3. Narpatram
1/4. Madan Lal, mentally retarded represented through his
natural guardian & mother-Smt. Jhamku;
sons of Girdhari, b/c Jats, Resident of Pal Dhorio Ki
Dhani, Tehsil & District Jodhpur.
1/5. Smt. Meemi Devi D/o Girdhari & W/o Shri Chainaram,
b/c Jat, resident of village Nekha, Tehsil Tinwari
District Jodhpur.
1/6. Smt. Baya D/o Girdhari & W/o Shri Doongaram,
by caste Jat, R/o Village Nandwan Tehsil Looni,
District Jodhpur.
2. State Of Rajasthan Through The Tehsildar, Jodhpur.
3. Urban Improvement Trust, Jodhpur (Now Jodhpur
Development Authority, Jodhpur) Through Its Secretary.
4. Hanuman Ram S/o Shri Girdhari Ram, B/c Jat, R/o Pal
Dhorio Ki Dhani, Tehsil And District Jodhpur.
5. Dwaraka Prasad Tapadia, B/c Maheshwari, R/o Radha
Bhavan, Paota, Mandor Road, Jodhpur.
6. Vikram Singh S/o Shri Bhom Singh, B/c Rajput, Resident
Of 236 New Bjs Colony, Jodhpur.
7. Board Of Revenue, Rajasthan, Ajmer.
----Respondents
S.B. Civil Writ Petition No. 7485/2018
Smt. Koyali Widow Of Late Shri Bhera Ram, aged about 72 years,
By Caste Jat, Resident Of Pal Dhrio Ki Dhani, Tehsil And District
Jodhpur (Raj.).
----Petitioner
Versus
1. Legal Representatives Of Late Shri Giridhari S/o Shri
Kumbha Ram :-
1/1. Smt. Jhamku widow of Late Shri Girdhari
1/2. Hanumanaram
1/3. Narpatram
1/4. Madan Lal, mentally retarded represented through his
natural guardian & mother-Smt. Jhamku;
sons of Girdhari, b/c Jats, Resident of Pal Dhorio Ki
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Dhani, Tehsil & District Jodhpur.
1/5. Smt. Meemi Devi D/o Girdhari & W/o Shri Chainaram,
b/c Jat, resident of village Nekha, Tehsil Tinwari
District Jodhpur.
1/6. Smt. Baya D/o Girdhari & W/o Shri Doongaram,
by caste Jat, R/o Village Nandwan Tehsil Looni,
District Jodhpur.
2. State Of Rajasthan, Through The Tehsildar, Jodhpur.
3. Urban Improvement Trust, Jodhpur (Now Jodhpur
Development Authority, Jodhpur) Through Its Secretary.
4. Hanuman Ram S/o Shri Girdhari Ram, B/c Jat, R/o Pal
Dhorio Ki Dhani, Tehsil And District Jodhpur.
5. Dwaraka Prasad Tapadia, B/c Maheshwari, R/o Radha
Bhavan, Paota, Mandor Road, Jodhpur.
6. Vikram Singh S/o Shri Bhom Singh, B/c Rajput, Resident
Of 236 New Bjs Colony, Jodhpur.
7. Board Of Revenue, Rajasthan, Ajmer.
----Respondents
S.B. Civil Writ Petition No. 7663/2018
Smt. Koyali Widow Of Late Shri Bhera Ram, By Caste Jat,
Resident Of Pal Dhorio Ki Dhani, Tehsil And District Jodhpur Raj..
----Petitioner
Versus
1. Legal Representatives Of Late Shri Giridhari S/o Shri
Kumbha Ram :-
1/1. Smt. Jhamku widow of Late Shri Girdhari
1/2. Hanumanaram
1/3. Narpatram
1/4. Madan Lal, mentally retarded represented through his
natural guardian & mother-Smt. Jhamku;
sons of Girdhari, b/c Jats, all Residents of Pal Dhorio Ki
Dhani, Tehsil & District Jodhpur.
1/5. Smt. Meemi Devi D/o Girdhari & W/o Shri Chainaram,
b/c Jat, resident of village Nekha, Tehsil Tinwari
District Jodhpur.
1/6. Smt. Baya D/o Girdhari & W/o Shri Doongaram,
by caste Jat, R/o Village Nandwan Tehsil Looni,
District Jodhpur.
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2. State Of Rajasthan Through The Tehsildar, Jodhpur.
3. Board Of Revenue, Rajasthan, Ajmer.
----Respondents
Counsels for : Mr. D.S. Rajvi with Mr. Vikas Joshi &
respective parties - Mr. Rajat Dave for UIT
petitioners/
respondents Mr. J.L. Purohit, Sr. Adv. with
Mr. M.S. Gehlot ; and
Mr. S.L. Jain for Koyali
Mr. Vineet Dave with Mr. Kaushik
Dave, for Girdhari
Mr. Nitin Trivedi, for LRs of Girdhari
Mr. H.R. Soni for Dwarka Prasad
Taparia(SBCW No.5654/07) & Vikram
Singh Rajvi (SBCW No.5653/07)
Mr. R.S. Choudhary for Hanuman Ram
Ms. Anita Rajpurohit for
Mr. Manvendra Singh for Rakesh
Mehta (SBCW Nos.6421/07)
Mr. Ankur Mathur for NHAI
HON'BLE MS. JUSTICE REKHA BORANA
Judgment
27/10/2025
1. The present writ petitions arise out of common questions of
law and facts and hence, were heard together and are being
decided by this common judgment.
2. The brief facts of the case are as under :
(i) A revenue suit for declaration of khatedari rights under
Sections 88 and 188 of the Rajasthan Land Revenue Act,1956
(hereinafter referred to as 'the Act of 1956') was filed by one
Girdhari on 17.01.1983 qua Khasra Nos.83, 104 & 108 of Village
Chopasani Jagir, District Jodhpur. In the said suit, it was pleaded
by Girdhari that he, along with his brother Bhera Ram were the
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cultivators of the land since years and after death of Bhera Ram,
Girdhari was the sole cultivator of the land. It was also averred
that notice under Section 91 of the Act of 1956 has been served
upon him which deserves to be set aside and the land in question
deserves to be declared to be of his khatedari. The suit as
preferred by Girdhari was dismissed on 10.08.1989 by the
Additional Collector, Jodhpur.
(ii) An appeal against the said order was preferred before the
Revenue Appellate Authority (RAA). In the said appeal, an
application under Order 1 Rule 10, CPC was preferred by the then
Urban Improvement Trust (UIT) which remained undecided.
Ultimately, the appeal as preferred by Girdhari was allowed by the
RAA vide order dated 21.12.1995 against which a second appeal
was preferred by the UIT before the Board of Revenue (BOR).
(iii) In the second appeal before the BOR, an application for
impleadment was filed by Smt. Koyali (wife of Bhera Ram, the
brother of Girdhari i.e. the original khatedar). However,
subsequently, an averment was made on her behalf to the effect
that she entered into a settlement with bonafide purchasers of
Khasra Nos.83 and 104. On basis of the said averment, her
application for impleadment was rejected.
(iv) The above second appeal was allowed by the BOR vide order
dated 15.12.2000 and while quashing/setting aside order dated
21.12.1995, it remanded the matter to the RAA with a direction to
decide afresh after hearing all the parties including the UIT and
after taking into consideration all the documents as placed on
record by the UIT.
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(v) Smt. Koyali again moved an application for impleadment
before the RAA with an averment that although she entered into
settlement qua Khasra Nos.83 and 104, her claim for Khasra
No.108 does survive and she deserves to be declared the khatedar
of the said khasra. It was further averred on her behalf that she
would be required to execute sale deeds in favour of the
purchasers qua Khasra Nos. 83 and 104 and hence, needs to be
impleaded.
(vi) Two persons namely Dwaraka Prasad Taparia (petitioner in
SBCWP No.5654/2007) and Vikram Singh Rajvi (petitioner in
SBCWP No.5653/2007) also moved an application for
impleadment with an averment that they had an agreement to sell
executed in their favour by one Harnarayan Heda, the power of
attorney holder of the original khatedar Girdhari.
(vii) After remand, the RAA proceeded on to hear the matter
afresh and vide order dated 28.06.2003, allowed the appeal as
preferred by Girdhari and quashed order dated 10.08.1989. Vide
the said order, a relief of permanent injunction was also granted in
favour of Girdhari.
So far as Koyali is concerned, the RAA held that as she had
already entered into a settlement qua Khasra Nos. 83 and 104,
she cannot claim any relief qua the said khasras. So far as Khasra
No.108 is concerned, it was observed that Smt. Koyali would be
required to file a separate suit for declaration and no relief can be
granted to her in the appeal.
(viii) Second appeals against order dated 28.06.2003 passed by
the RAA were then filed by the UIT, by Smt. Koyali and a joint
appeal by Dwaraka Prasad Taparia and Vikram Singh Rajvi.
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(ix) Second appeal filed by the UIT came to be dismissed by the
BOR vide order dated 03.09.2003. Second appeal filed by Smt.
Koyali stood dismissed as not pressed vide order dated
19.11.2003 as a review petition had already been filed by her
before the RAA.
(x) Admittedly, order dated 03.09.2003 was not assailed further
at that point of time.
(xi) Subsequent to order dated 19.11.2003, Smt. Koyali, vide
communication dated 21.11.2003 addressed to UIT, expressed her
'No objection' for grant of pattas to the purchasers of Khasras
No.83 & 104.Consequently, in terms of Section 90-B of the
Rajasthan Urban Improvement Act, 1959 (hereinafter referred to
as the 'Act of 1959'), the pattas were issued in the year 2005 by
the UIT in favour of 28 persons qua 110 plots.
(xii) As observed above, Smt. Koyali filed a review petition before
the RAA against order dated 28.06.2003 praying for declaration of
khatedari rights qua Khasra No.108. The said review petition came
to be allowed vide order dated 22.02.2005 and as a consequence,
both Smt. Koyali and Girdhari were declared to be tenants of
Khasra No.108 with half share each.
(xiii) Aggrieved of above order dated 22.02.2005, second appeals
were again filed by both Girdhari and Smt. Koyali. Girdhari
claimed the complete share of Khasra No.108 whereas Smt. Koyali
claimed khatedari of all the three khasras i.e Khasra Nos.83, 104
& 108.
(xiv) Vide judgment dated 27.08.2010, the BOR proceeded on to
dismiss the second appeal as filed by Girdhari and allowed the
second appeal as filed by Smt. Koyali whereby Smt. Koyali was
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conferred the complete khatedari rights qua all the three khasras.
Learned BOR held that Girdhari was not entitled for any khatedari
rights qua any of the khasras, he not being the original tenant of
the land in question. It was held that it was Bhera Ram, husband
of Smt.Koyali and brother of Girdhari, who was the original tenant
and it is only Bhera Ram or his legal representatives who could
have been declared to be the khatedar. Smt. Koyali being the only
legal representative of Bhera Ram, was only entitled for khatedari
rights.
(xv) Aggrieved of order/judgment dated 27.08.2010, several writ
petitions were preferred before this Court by UIT and subsequent
purchasers. Review petitions against order dated 27.08.2010 were
filed by Girdhari before the BOR.
(xvi) Vide order dated 11.04.2018, the review petitions as filed
by Girdhari stood allowed. The order/judgment dated 27.08.2010
was set aside and as a consequence the mutations made in
pursuance to order dated 27.08.2010, were also directed to be
quashed. The appeals were directed to be listed for further
hearing.
(xvii) Further proceedings before the BOR in pursuance to order
dated 11.04.2018 remains stayed as of date by virtue of the
interim order passed by this Court.
(xviii) One more development took place in the proceedings before
the RAA. An application for impleadment was filed by one
Hanuman son of Girdhari with an averment that Bhera Ram had
executed a Will in his favour and by virtue of said Will, it is he who
is the person entitled to be declared khatedar of the lands in
question. The said application remained undecided by RAA and
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hence, the BOR while allowing the applications under Order 41
Rule 21, CPC as filed by Hanuman Ram, vide order dated
11.04.2018, directed for opportunity of hearing to be granted to
him.
(xix) Meanwhile, the pattas as issued by the UIT in 2005 were
challenged by certain persons before the Divisional Commissioner
and vide order dated 12.06.2007, the said pattas were cancelled
by the Divisional Commissioner and the matter was remanded
back to the UIT to decide afresh. Aggrieved of order dated
12.06.2007, one of the patta holders, Gajendra preferred a writ
petition (S.B. Civil Writ Petition No.42/2008) before this Court
which was allowed vide order dated 22.12.2008. However, while
allowing the said writ petition, the following observations were
made :
"As a result of aforesaid discussions, this writ petition is
allowed while holding that the order passed by the
Divisional Commissioner, Jodhpur is totally
without jurisdiction. Consequently, the orders
impugned dated 12.6.2007 Annexure-11 and
dated 16.7.2007 Annexure-12 qua the petitioner
are hereby quashed and set aside. However, it is
made clear that any observation made in this order will
not affect the merit of the suit filed by the respondent
Nos.4 and 5 before the District Court, Jodhpur. It is a
so made clear that the respondent State as well as
competent authority are not precluded from making
any enquiry with regard to any procedural lapses for
granting pattas under Section 90-B of the Act of 1956
to petitioner and any of the persons and further if in
that enquiry any lapse or irregularity comes to the
knowledge of the State Government or the competent
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authority then they are free to pass any order up to the
extent of cancellation of pattas."
3. After detailing out the above complete facts, this Court would
now proceed further with all the writ petitions one by one. S.B.
Civil Writ Petition No.10317/2009 filed by the UIT, being the root
of the dispute, is adjudicated first.
(A) S.B. Civil Writ Petition No.10317/2009
1. The present writ petition was filed by the UIT in the year
2009 challenging orders dated 28.06.2003 (vide which the RAA
allowed the appeal of Girdhari) and 03.09.2003 (vide which
second appeal of UIT was dismissed by BOR) with a prayer to
restore order dated 10.08.1989 (vide which suit of Girdhari was
dismissed). Vide the present writ petition, the petitioner UIT has
prayed for declaration of land of its ownership.
2. Mr. D.S. Rajvi, learned counsel for the petitioner UIT raised
the following grounds :
(i) Vide notification dated 01.09.1977 issued in terms of Section 3
of the Act of 1959 by the State Government, the land in question
falling under Village Chopasani Jagir (known as Chopasani
Nathdwara at that point of time) was declared to be falling in
urban area of Jodhpur Town. Section 3 of the Act of 1959 provides
for preparation of a master plan and after the preparation of the
same, the areas of the revenue villages now to fall under the
urban area of the districts at that point of time, were notified. So
far as the urban area of Jodhpur town is concerned, 33 revenue
villages were notified to fall under the urban area. Learned
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counsel submitted that the land once notified in terms of Section 3
of the Act of 1959 would vest in the UIT and once vested, it no
more remains a revenue land. Therefore, when in the year 1977
itself, the land vested in UIT, the revenue Courts did not have any
jurisdiction either to entertain a suit or even to declare khatedari
rights qua an urban land. In support of his submission that the
land once vested does not remain a revenue land, counsel relied
upon the judgment in Smt. Koshlaya Devi vs. State of
Rajasthan & Ors.; 1989 2 RLW 380. On the issue that the land
vested does not remain a revenue land and hence the revenue
Courts would not have any jurisdiction to entertain a suit, counsel
relied upon the judgment in M/s. Pachak Foods (P) Ltd. vs.
U.I.T., Bikaner & Ors. (D.B. Civil Special Appeal (Writ)
No.119/2000), decided on 16.01.2008.
(ii) In terms of Section 16 of the Rajasthan Tenancy Act,1955
khatedari rights qua the land in question could not have been
granted in favour of plaintiff Girdhari. Section 16(6) of the
Tenancy Act provides that no khatedari rights shall accrue qua the
land acquired or held for a public purpose or a work of public
utility. The land in question admittedly was an urban land and no
khatedari rights qua the land could have been conferred upon
anyone. The issue whether the land fell in the municipal area was
decided against plaintiff Girdhari by the A.D.M. while deciding
issue no.3. The fact of the land falling in the municipal area was
even admitted by the plaintiff himself and therefore also, no
khatedari rights could have been conferred in favour of any person
qua the said land.
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(iii) Even if any khatedari was to be conferred on any person,
the same could only be in conformity with Section 15 of the
Rajasthan Tenancy Act which defines 'khatedar tenants'. It is
clearly proved on record that Girdhari was not a tenant and not
even a sub-tenant at the relevant point of time and hence, did not
fall within the categories as defined under Section 15 of the Act.
Even the documents as placed on record by Girdhari before the
revenue Courts were only the Girdawaries which cannot be termed
to be a proof of any tenancy/sub-tenancy. No rent receipt was
produced by Girdhari at any stage, rather he admitted in his cross
examination that he did not deposit the rent (bigodi). Therefore
also, the khatedari rights could not have been conferred on
Girdhari by the revenue Court.
(iv) A perusal of the documents as placed on record by Girdhari
would reveal that the same specified him to be a trespasser only.
Rule 89 of Rajasthan Land Revenue (Land Record) Rules, 1957
specify the categories of the persons in possession of the
agricultural land. Rules 72 and 73 provide that the patwari would
make the entries regarding the persons in possession, in specific
columns. The concerned patwari who had made the revenue
entries has entered the witness box and he admitted that
Girdhari's name was mentioned in column No.6, which is specified
for the entry of trespasser. Had Girdhari been the khatedar, his
name would have been reflected in column No.5. The name of
Girdhari being specified in column No.6, is sufficient to prove that
he was a trespasser and not a khatedar. The sole reason of the
RAA to have decided in favour of plaintiff Girdhari was that there
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was an interim order operating at the relevant point of time and,
therefore, the order of the year 1992 whereby the Collector had
set apart the land could not have been passed. The RAA held that
the order passed by the Collector despite there being an interim
order operating, would be of no relevance and consequence and
hence, proceeded on to pass directions to grant khatedari to
Girdhari. Learned counsel submitted that firstly, there there was
no interim order operating against the State at the relevant point
of time and secondly, even if it is assumed that there was any
interim order operating, the order passed by the Collector could
not have been concluded/considered to be void ab-initio. The
order passed by the Collector was never challenged by any one
and was not set aside by any Court and thus, the same did have a
legal sanctity. Further, the interim order, if any, was in a matter
pertaining to internal disputes between the private parties and the
same could not have bound the State authorities.
(v) The learned RAA, in total contravention to the material
available on record, held the plaintiff to be in possession of the
land in question since more than 30 years. There was no evidence
available on record to prove so and hence, the said finding also
deserves to be set aside.
3. Per contra learned counsels appearing for the respondents
submitted that the present petition by UIT is clearly malafide.
Once the UIT accepted order dated 03.09.2003 and acted upon
order dated 28.06.2003, it is estopped now from challenging the
said orders. Admittedly, UIT proceeded on to act upon order dated
28.06.2003 and issued pattas in favour of the purchasers. Even
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the construction permission was granted by the UIT to the
purchasers. The said acts of the UIT definitely amount to a waiver
of right to challenge the orders impugned.
4. It is relevant to note at this stage that two applications under
Article 226 of the Constitution of India have been filed in the
present writ petition on behalf of National Highways Authority of
India (NHAI) with a prayer to grant liberty to NHAI to construct
Ring Road on the land in dispute pertaining to Khasra No.108. It
has been averred that the said land was acquired by PWD and was
handed over to NHAI for purpose of construction of road. However,
vide interim order dated 26.09.2011 passed in the present writ
petition status quo was directed to be maintained and hence, the
construction of the Ring Road has been hampered. An application
under Order 1 Rule 10, CPC for impleadment of NHAI in the writ
petition has also been filed.
5. Heard learned counsels and perused the material available
on record.
6. So far as all the grounds raised on behalf of the petitioner
UIT are concerned, this Court is of the clear opinion that the same
cannot be taken into consideration by this Court after order dated
03.09.2003 having been accepted by the UIT and order dated
28.06.2003 having been acted upon by it.
7. In the opinion of this Court, the present is a clear case of
acquiescence, waiver and estoppel. Admittedly, after the appeal
preferred by the UIT before BOR been dismissed vide order dated
03.09.2003, proceedings in terms of Section 90B of the Act of
1959 were undertaken by it and after the complete process being
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undertaken, pattas were issued in the year 2005 in favour of 28
persons qua 110 plots. Meaning thereby, the petitioner UIT
accepted order dated 03.09.2003 passed by the BOR and even
acted upon the same. Further, the said order was not even
assailed further by the UIT at that point of time. It is only in the
year 2009 that the order of the year 2003 was put to challenge
vide the present writ petition. Once the UIT acted in pursuance to
order dated 28.06.2003 passed by the RAA vide which the
khatedari rights were conferred in favour of Girdhari, it cannot
subsequently be permitted to turn over and aver that order dated
28.06.2003 was bad in eyes of law.
8. It is relevant to observe here that at this stage, the Court is
not dealing with the aspect whether the khatedari rights were
rightly conferred solely in favour of Girdhari or not. That aspect
would be dealt with subsequently and separately. At present the
Court is dealing with only one issue - Whether the UIT can be
held entitled to challenge orders dated 28.06.2003 and
03.09.2003 in the year 2009 and that too, after having acted upon
order dated 28.06.2003.
9. Proceeding on further with the above issue, in legal parlance,
a 'Waiver' is giving up, relinquishment or surrender of some
known right and it takes place where a person dispenses with the
performance of something which he has a right to exact. Herein,
the petitioner UIT who had a legal right to challenge the orders
impugned in the year 2003, did not elect to do so but rather acted
upon the said orders and accepting the orders, proceeded on to
issue pattas after undertaking the process in terms of Section 90-
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[2025:RJ-JD:46204] (23 of 39) [CW-10317/2009]
B of the Act of 1959. After having issued the pattas and granting
the construction permissions on the land in question, the UIT
chose to challenge the orders of year 2003 in the year 2009. This
Court is of the clear opinion that legal right, whatsoever, of the
petitioner UIT to challenge the orders impugned was waived
knowingly and willingly by the UIT in the year 2005 itself when it
proceeded on to issue the pattas. The present petition in the year
2009 is clearly a malafide attempt on the part of the UIT.
10. As is the settled position of law, when one party by its
conduct makes other party believe to have acted upon some
promise or assurance so as to make other party also act upon the
said promise/assurance, the said first party cannot afterwards be
allowed to revert to the previous legal relationship as if no such
promise or assurance was made by it.
11. In Inderpreet Singh Kahlon v. State of Punjab;(2006)
11 SCC 356, the Hon'ble Apex Court while keeping into
consideration the observation made in Central London Property
Trust Ltd. Vs. High Trees House Ltd.;[(1947) 1 KB 130 :
175 LT 332] reiterated the said principle of law and held that in
such case, the said first party must accept a legal relation which it
itself has so introduced, even though it is not supported in point of
law by any consideration.
12. While analyzing the basic principle of 'approbate and
reprobate' and the 'doctrine of estoppel by election', the Hon'ble
Apex Court in Rajasthan State Industrial Development &
Investment Corpn. Vs. Diamond & Gem Development
Corpn. Ltd.; (2013) 5 SCC 470 observed that the doctrine of
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election is based on rule of estoppel - the principle that one
cannot approbate and reprobate is inherent in it. Therein, the
Court held as under :
"The doctrine of estoppel by election is one among the
species of estoppel in pais (or equitable estoppel), which
is a rule of equity. By this law, a person may be
precluded, by way of his actions, or conduct, or silence
when it is his duty to speak, from asserting a right which
he would have otherwise had."
13. The above position of law was reiterated by the Hon'ble Apex
Court in State of Punjab Vs Dhanjit Singh Sandhu; (2014)
15 SCC 144, wherein the Court observed and held as under :
22. The doctrine of "approbate and reprobate" is only a
species of estoppel, it implies only to the conduct of
parties. As in the case of estoppel it cannot operate
against the provisions of a statute.(VideCIT v. V. MR. P.
Firm Muar [CIT v. V. MR. P. Firm Muar, AIR 1965 SC
1216]).
23. It is settled proposition of law that once an order has
been passed, it is complied with, accepted by the other
party and derived the benefit out of it, he cannot
challenge it on any ground.(Vide Maharashtra SRTC v.
Balwant Regular Motor Service [AIR 1969 SC 329]). In
R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683)] this
Court has observed as under : (R.N. Gosain Case [(1992)
4 SCC 683],SCC pp. 687-88, para 10)
"10. Law does not permit a person to both
approbate and reprobate. This principle is based on
the doctrine of election which postulates that no
party can accept and reject the same instrument
and that 'a person cannot say at one time that a
transaction is valid and thereby obtain some
advantage, to which he could only be entitled on the
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footing that it is valid, and then turn round and say
it is void for the purpose of securing some other
advantage'."
14. Applying the ratio laid down by the Hon'ble Apex Court in the
above judgments to the present matter, it is not in dispute that
petitioner UIT had a legal right to challenge the orders impugned
at that point of time but despite of being aware of the said
judgments, UIT consciously chose to abandon its said legal right
and hence, in the opinion of this Court, the intentional
relinquishment of the right by the UIT amounts to a 'Waiver'.
Waiver in terms of law, is an agreement not to assert a right. It is
not the case that the UIT was not aware of its legal right to
challenge the orders impugned. Despite the same, it did not
choose to do so which can be nothing more than an intentional
abandonment.
15. Further, this Court is of the opinion that the challenge of the
UIT cannot be entertained also for the reason that because of the
action of the UIT itself in issuance of pattas in favour of 28
persons, the rights of the said patta holders also accrued qua the
said lands. Admittedly, most of the said patta holders/subsequent
purchasers have even raised constructions over the plots in
question after having been granted due permission for
construction by UIT itself. The said action of the UIT further binds
it by the principle of estoppel. The UIT being a State
instrumentality cannot be permitted to act irrationally, arbitrary
and malafidely. It is the UIT itself who issued pattas and then
even granted the construction permissions. After the said
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acquiescence of UIT, the present writ petition in the year 2009
cannot be termed to be anything more than malafide.
16. In B.L. Sreedhar v. K.M. Munireddy; (2003) 2 SCC 355
the Hon'ble Apex Court held that when rights are invoked,
estoppel may with equal justification be described both as a rule
of evidence and as a rule creating or defeating rights. Therein, the
Court proceeded on to hold as under :
"30. It a man either by words or by conduct has
intimated that he consents to an act which has been
done and that he will not offer any opposition to it,
although it could not have been lawfully done without
his consent, and he thereby induces others to do that
which they otherwise might have abstained from, he
cannot question the legality of the act he had
sanctioned to the prejudice of those who have so
given faith to his words or to the fair inference to
be drawn from his conduct."
17. So far as the cancellation of the pattas issued by the UIT by
the Divisional Commissioner vide order 12.06.2007 is concerned,
admittedly the said order was set aside by this Court vide order
dated 22.12.2008 in S.B. Civil Writ Petition No.42/2008. Therein,
the Court specifically held the order of the Divisional
Commissioner to be totally without jurisdiction. Although order
dated 12.06.2007 was quashed qua Gajendra Singh, the petitioner
therein only, but this Court is of the clear opinion that once a
Court recorded a specific finding to the effect that the order
passed by the Divisional Commissioner was without jurisdiction,
the same definitely was a judgment in rem and as a consequence
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thereof, order dated 12.06.2007 would be deemed to be quashed
for all purposes.
18. Further, in S.B. Civil Writ Petition No.42/2008, UIT was also a
party respondent and order dated 22.12.2008 was passed after
hearing counsel for the UIT too. Therein, the Court observed as
under :
"In this case, admittedly Girdhari was original
khatedar of the land in question and this question is
not in dispute."
Interestingly, no objection regarding the khatedari rights of
Girdhari was raised by the UIT in the said writ petition. The
dispute therein was only as to in whose favour the pattas are to
be issued. Admittedly, no dispute regarding the khatedari rights
was raised by any of the parties.
19. Furthermore, vide order dated 22.12.2008, the Court while
setting aside order dated 12.06.2007, granted liberty to the State
as well as the competent authority to undertake inquiry with
regard to any procedural lapses in granting pattas under Section
90B of the Act of 1959. But then no liberty for any inquiry qua the
khatedari rights was granted.
20. In view of the above overall facts, this Court is of the clear
opinion that challenge laid by the petitioner UIT to impugned
orders dated 28.06.2003 and 03.09.2003 and the prayer for
declaration of the land in question to be of its ownership, cannot
be sustained. The writ petition therefore deserves to be, and is
hereby dismissed.
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21. It is however made clear that the writ petition is dismissed
only to the extent of relief prayed by the petitioner UIT for
declaration of the land in its favour. So far as the declaration of
khatedari rights solely in favour of Girdhari is concerned, the said
issue would be dealt with while adjudicating the writ petitions filed
by Koyali.
22. As the writ petition itself has been decided, this Court is of
the opinion that no order now needs to be passed on the
applications as filed by NHAI as interim order dated 26.09.2011
does not survive now. The applications as filed by NHAI therefore
stand disposed of.
23. Pending applications, if any, also stand disposed of.
(B) S.B. Civil Writ Petitions No.6967/2018, 5641/2018,
6926/2018, 7476/2018, 7485/2018 & 7663/2018
1. The present six writ petitions have been filed by Koyali
laying a challenge to order dated 11.04.2018 passed by the BOR
whereby the BOR proceeded on to decide three review petitions
as filed by Girdhari; one application under Order 41 Rule 21, CPC
filed by Hanuman Ram to set aside the ex parte order against him
in the appeal as preferred by Girdhari; and appeals filed by
Girdhari against order dated 10.01.2011 passed by the Additional
Divisional Commissioner. Vide the said order, the BOR held that
Hanuman Ram son of Girdhari ought to have been given an
opportunity of hearing as his legal rights were also affected. The
ex parte order against Hanuman Ram was therefore quashed.
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2. Further, three review petitions as filed by Girdhari stood
allowed and order dated 27.08.2010 (vide which Koyali was
declared the sole khatedar of all the 3 khasras) was set aside. The
appeals were directed by the BOR to be listed for rehearing.
3. The issues which arise for consideration in the present writ
petitions are :
(i) Whether Koyali is entitled to be declared the khatedar of all the
three khasras i.e. Khasras No.83, 104 & 108 ?
(ii) Whether Koyali is entitled to be declared the khatedar of
Khasra No.108 ?
4. To adjudicate the above issues, the basic pleadings as made
by Girdhari in his original suit filed in the year 1983 (Revenue Suit
No.49/86) becomes relevant. The complete plaint as filed by
Girdhari, is reproduced for ready reference :
"Jheku~th]
oknh dk okn fuEu izdkj ls gS %
¼1½ & ;g gS fd oknh dk [ksr [kljk uacj 83 jdck 2 ch?kk
5 fcLok [kljk uacj 104 jdck 18 ch?kk 17 fcLok [kljk
uacj 108 jdck AA ch?kk 8 fcLok dqy jdck 32 ch?kk 10
fcLok ekStk pksikluh tkxhj ds dkadM+ esa vk;h gqbZ gSA bl
tehu dh fdLe ckjkuh lks;e gSaA
¼2½ & ;g gS fd mijksDr fooknxzLr tehu ij oknh ,oa
mldk LoxhZ; HkkbZ HkSjkjke dnhe ls dk"r ,oa dCtk lqn
gSaA vkSj vkt Hkh oknh dk dCtk dk"r mijksDr Hkwfe ij
ekStwn gSaA bl lky Hkh oknh us cktjh dh dk"r tehu
eqruktk ij dh gSA
¼3½ & ;g gS fd oknh ,oa mldk LoxhZ; HkkbZ HkSjkjke mDr
fooknxzLr Hkwfe ij laor 2012 ls Hkh igys ls dk"rdkj ,oa
dkfct gSaA bl izdkj jktLFkku fVusUlh ,DV dh /kkjk 15 ds
vUrxZr oknh Lo;a [kkrsnkjh gks pwdk gSA
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[2025:RJ-JD:46204] (30 of 39) [CW-10317/2009]
¼4½ & ;g gS fd fooknxzLr tehu dh fcxksM+h Hkh jkT;
ljdkj esa oknh ,oa mldk LoxhZ; HkkbZ HkSjkjke vnk dj jgs
FksA ftldh jlhns oknh ds ikl ekStwn gSaA
¼5½ & ;g gS fd lEor~ 2012 esa dk"r djus ds fy,
fooknxzLr tehu ij rqyNkjke uke ds vkneh dks ukSdj
j[kk Fkk blfy, dqN o'kksZa rd oknh ,oa mlds HkkbZ dk uke
m'k d`'kd esa ugha vkdj rqyNkjke dk uke ntZ gks x;k Fkk
dqN o'kksZa ckn rqyNkjke us oknh ds ;gka ls ukSdjh NksM+ nh
blfy, laiw.kZ fxjnkojh oknh ds cMs+ HkkbZ HkSjkjke ds uke ij
ntZ gks x;hA oknh ,oa mldk HkkbZ HkSjkjke lkfey gh jgrs
FksA dk"r oknh gh fd;k djrk Fkk ckdh ysu nsu oxSjk dk
dke HkSjkjke gh oknh ls cM+k gksus ds dkj.k fd;k djrk FkkA
oknh ds cM+s HkkbZ dk fcuk vkSykn LoxZokl gks x;k gSA ,oa
mDr fooknxzLr tehu vdsys oknh ds dCtk dk"r esa gSA
ftldk jktLFkku fVusUlh ,DV ds vuqlkj oknh Lo;a
[kkrsnkj gks x;k gSaA
¼6½ & ;g gS fd mDr fooknxzLr tehu eqruktk ij oknh
dk dCtk dk"r dnhe ys ,oa oDr cankscLr ds iwoZ ls
yxkrkj pyk vk jgk gSA jktLFkku dk"rdkjh vf/kfu;e
ykxw gksus ds le; Hkh oknh dk"rdkj dh gSfl;r ls dkfct
Fkk blfy, mlds HkkbZ HkSjkjke dk uke fxjnkojh ds dkye
uacj 6 esa ntZ gSaA blls Hkh Li'V gS fd oDr tkxhj oknh
gh fooknxzLr tehu ij dk"r djrk FkkA
¼7½ & ;g gS fd oknh vui<+ dk"rdkj gksus ds dkj.k le;
ij ipkZ yxku ,oa jktLo jsdkMZ vius uke ugha cuok ldk
blfy, vc okn ckcr [kkrsnkjh ?kks'k.kk izLrqr fd;k gSA
¼8½ & ;g gS fd oknh ds okn dkj.k fnuk¡d 31&8&82 dks
iSnk gqvk tc oknh us [kkrsnkjh ?kks'k.kk ckcr 80 lh ih lh
dk uksfVl ftyk/kh"k egksn;th] tks/kiqj dks fn;k ,oa gky
gh rglhynkj th tks/kiqj ds uksfVl /kkjk 91 vkj ,y ,DV
dk irk yxus ij iSnk gqvk tks vkt Hkh gSA blfy, nkok
vanj fe;kn is"k gSaA
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[2025:RJ-JD:46204] (31 of 39) [CW-10317/2009]
¼9½ & ;g gS fd oknh dk okn U;k;ky; ds {ks=kf/kdkj ds
vUrxZr gksus ds dkj.k U;k;ky; Jh dks lquus dk {ks=kf/kdkj
gSaA
¼10½ & ;g gS fd oknh dk okn 300@& :i;s ds dksVZ Qhl
LVkEi ij vfrfjDr ryckuk fd;k tkrk gSA tks fof/kor :i
ls i;kZIr gSaA
¼11½ & ;g gS fd oknh mijksDr fooknxzLr tehu dh
[kkrsnkjh ikus dk vf/kdkjh gSA
fygktk izkFkZuk gS fd mijksDr fooknxzLr tehu ij oknh dks
[kkrsnkj ?kksf'kr djkos o vU; mfpr vkns"k tks oknh dh ifjfLFkfr;ksa
dks ns[krs gq, oknh ds i{k esa gSa ikfjr djkosA"
5. A bare perusal of the above pleadings reflect that the whole
case of Girdhari himself right from the inception was that he and
his brother Bhera Ram were jointly cultivating the land in
question. The documentary evidence as relied upon by the
Revenue Courts i.e. Girdawari and Khasra Samvat also reflected
Bhera Ram and Girdhari to be the cultivators of the land in
question. It is on basis of the said documentary proof that the
Revenue Courts held both of them in possession of the land in
question for more than 30 years and held Girdhari/Koyali (Bhera
Ram having expired) to be khatedars of the land in question. Once
it is admitted that both Bhera Ram and Girdhari were joint
cultivators of the land in question, Koyali was definitely an
essential party to the suit as filed by Girdhari at the inception in
year 1983. The impleadment of Koyali therefore was valid and in
consonance with law.
6. Further, it being admitted on record that Girdhari and Bhera
Ram were joint cultivators of the land in question, Koyali being the
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sole legal representative of Bhera Ram, was definitely entitled for
equal khatedari rights qua the land in question. But then, as is
evident from the facts as detailed out in the preceding paras,
Koyali specifically submitted before the Revenue Authorities that
she had entered into a settlement with the subsequent purchasers
qua Khasras No.83 & 104. The first application was filed by her
before the BOR in the year 1995 for withdrawal of her
impleadment application on the count of settlement. It is on the
said application that her application for impleadment was rejected
by the BOR vide order dated 24.11.2000.
7. For the second time, after having impleaded in the
proceedings before the RAA (after remand), she again submitted
that she had entered into a settlement qua Khasras No.83 & 104
and her claim survives only qua Khasra No.108. It is on the said
specific statement of Koyali that RAA, vide order dated
28.06.2003, rejected her claim qua the said khasras. So far as
Khasra No.108 is concerned, it was held that she could claim the
said right only by a separate suit for declaration.
8. However, order dated 28.06.2003 was reviewed vide order
dated 22.02.2005 and Koyali was declared equal khatedar of land
of Khasra No.108. Interestingly, in the review applications, Koyali
did not pray for any relief qua Khasra Nos.83 & 104. Her prayer
was limited only to Khasra No.108 and the same stood allowed.
9. Admittedly, a "No Objection" was then submitted by Koyali
before the UIT for the grant of pattas to the subsequent
purchasers qua Khasras No.83 & 104.
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10. In view of the above facts, this Court is of the clear opinion
that herein too, the principle of estoppel, acquiescence and waiver
would come into application. As observed and held by this Court
while dealing with the writ petition petition of UIT, no litigant can
be permitted to approbate and reprobate at the same time. Koyali,
having submitted in writing more than once that she had entered
into a settlement qua two khasras and she does not claim any
right qua the said khasras, the same clearly amounted to a
"Waiver". Even if it is held that Koyali being the sole legal
representative of Bhera Ram, was entitled to equal khatedari
rights in all the khasras, she definitely, by her acts and
acquiescence, waived her right qua the two khasras. It is nowhere
disputed that Koyali did submit the application/made specific
statements averring a settlement. The fact of Koyali having
admitted a settlement having not been denied, she cannot be
permitted to raise her claim de novo qua the khasras for which
she admittedly entered into a settlement.
11. Further, it is the settled proposition that law does not permit
a person to both approbate and reprobate. As held by the Hon'ble
Apex Court in Dhanjit Singh Sandhu's case (supra) this principle
is based on doctrine of election which postulates that no party can
accept and reject the same instrument and that a person cannot
say at one time that a transaction is valid and thereby obtain
some advantage, to which he could only be entitled on the footing
that it is valid, and then turn round and say it is void for the
purpose of securing some other advantage. The same principle
was reiterated by the Hon'ble Apex Court in Rajasthan State
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Industrial Development & Investment Corporation's case
(supra) wherein the Court while dealing with the principle of
approbate and reprobate observed as under :
"15. A party cannot be permitted to "blow hot-blow
cold", "fast and loose" or "approbate and reprobate".
Where one knowingly accepts the benefits of a
contract, or conveyance, or of an order, he is estopped
from denying the validity of, or the binding effect of
such contract, or conveyance, or order upon himself."
12. Applying the above ratio to the present matter, Koyali having
entered into a settlement with the subsequent purchasers, is not
denied. No ground to the said effect has even been raised in the
present petitions. The only ground raised is that the said
settlement would be of no consequence as Koyali had not even
been impleaded till that point of time. In the specific opinion of
this Court, conduct of a party assumes importance while applying
the principle of estoppel or acquiescence. In the present matters,
it is crystal clear on record that Koyali took shifting stands at
different points of time and despite having entered into a
settlement and having received the consideration in terms of the
said settlement, very conveniently chose to disown the same and
again prayed for declaration of khatedari rights qua all the three
khasras. Once Koyali accepted the benefits of a settlement, she
definitely was estopped from denying the binding effect of such
settlement. The said is an established rule of equity and good
conscience. Koyali having herself filed an application in writing
averring the settlement, she cannot be permitted to approbate
and reprobate.
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13. In view of the above settled position of law, it is hereby held
that Koyali is not entitled to be declared a khatedar of lands of
Khasras No.83 & 104.
14. So far as Khasra No.108 is concerned, learned RAA vide
order dated 22.02.2005, rightly held Koyali to be entitled for half
share in the said Khasra. There is no reason as to why Koyali
could have been deprived of the said right when she was
admittedly the sole legal representative of the original cultivator
Bhera Ram. It is not the case of any of the parties that Koyali had
ever entered into any settlement qua Khasra No.108.
15. In view of overall facts, observations and analysis, Writ
Petitions No.5641/2018, 6926/2018, 6967/2018 & 7663/2018 as
filed by Koyali are partly allowed. Order impugned dated
11.04.2018 passed by BOR is hereby quashed and set aside.
Order dated 27.08.2010 passed by BOR is also quashed and set
aside. As a consequence, order dated 22.02.2005 passed by RAA
is hereby affirmed. It is hereby declared that Koyali shall not be
entitled to khatedari rights in Khasra Nos.83 & 104 but shall be
entitled to one half share of khatedari rights in Khasra No.108.
16. Coming on to writ petitions No.7476/2018 & 7485/2018 filed
by Koyali aggrieved of orders whereby the appeals filed by
Hanuman Ram were allowed. Hanuman Ram filed applications
under Order 41 Rule 21, CPC to set aside the ex parte order
passed by RAA against him.
17. As is evident on record, the notices as sent to Hanuman Ram
in the proceedings before the RAA, were refused by him. It is on
refusal of notices by Hanuman Ram that RAA proceeded ex parte
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against him. Therefore, the finding as recorded by BOR to the
extent that an opportunity of hearing should have been granted to
Hanuman Ram, is totally erroneous. If any party despite service
chooses not to appear, the Courts have no option other than to
proceed ex parte against the said party.
18. Further, it is evident on record that Hanuman Ram being the
legal representative of Girdhari, was even otherwise a party
respondent and it cannot therefore be concluded that he was not
aware of the proceedings.
19. Furthermore, even in the reply filed to the present petitions
by Hanuman Ram, the averment raised is that after the death of
Bhera Ram, his father Girdhari was rightly conferred the
khatedari. Meaning thereby, Hanuman Ram is not aggrieved of the
khatedari been conferred on his father Girdhari. The said fact is
further fortified from the sale deeds as executed by Girdhari in
favour of subsequent purchasers which reflect Hanuman Ram to
be one of the witness. In that view of the matter, the principle of
acquiescence and waiver would apply to Hanuman Ram too. Once
having accepted the fact of conferment of khatedari in favour of
his father Girdhari, Hanuman Ram cannot turn over and aver that
by virtue of a Will in his favour, it is only he who could have been
declared the khatedar.
20. The most crucial aspect further would be that Hanuman Ram
claims his right on basis of alleged Will dated 14.11.1980 executed
in his favour by Bhera Ram. In the specific opinion of this Court,
Hanuman Ram has built his complete case on basis of said alleged
Will and hence, as is the settled position of law, he would
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definitely be required to prove the said Will in appropriate
proceedings before a competent civil court.
21. No relief can be granted to Hanuman Ram in the present
proceedings for all the aforesaid reasons.
22. In view of the above analysis, Writ Petitions No. 7476/2018
& 7485/2018 as filed by Koyali are hereby allowed. Order dated
11.04.2018 passed by BOR to the extent of allowing the appeals
filed by Hanuman Ram is hereby quashed and set aside.
23. Pending applications, if any, also stand disposed of.
(C) S.B. Civil Writ Petitions No.5653/2007 & 5654/2007
1. The present writ petitions have been filed aggrieved of
orders dated 24.07.2007 and 06.08.2007. A consequent prayer for
compliance of order dated 12.06.2007 passed by the Divisional
Commissioner has also been made. Vide order dated 12.06.2007,
the Divisional Commissioner cancelled all the pattas as issued by
the UIT in terms of Section 90-B of the Act of 1959.
2. One Ramesh Gehlot preferred an application under Section 9
of the Act of 1956 before the Divisional Commissioner assailing
order dated 12.06.2007 whereby the present petitioners were
impleaded as party respondents. Vide order dated 24.07.2007, the
Member, BOR proceeded on to hold the application to be
maintainable before it and to direct that order dated 12.06.2007
be not complied with till the next date.
3. The appeal preferred against the said order stood dismissed
vide order dated 06.08.2007.
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4. A bare perusal of the prayers as made in the writ petitions
reveal that the ultimate prayer is for compliance of order dated
12.06.2007 passed by the Divisional Commissioner.
5. Admittedly, order dated 12.06.2007 passed by the Divisional
Commissioner had already been quashed and set aside by this
Court in Writ Petition No.42/2008 vide order dated 22.12.2008 in
the writ petition filed by Gajendra Singh. This Court has, while
adjudicating Writ Petition No.10317/2009 already observed that
judgment dated 22.12.2008 is a judgment in rem and as a
consequence thereof, order dated 12.06.2007 would be deemed to
be quashed for all purposes.
6. Further, it is an admitted fact that judgment dated
22.12.2008 has already been assailed by both petitioners Vikram
Singh and Dwarka Prasad vide special appeal before the Division
Bench of this Court being SAW No.1466/2011. An interim order
dated 25.01.2019 has also been passed in the said special appeal.
7. In view of the above facts, no order requires to be passed in
the present writ petitions as ultimate fate of the petitions would
depend on result of the special appeal as filed by the petitioners.
The writ petitions are therefore disposed of, however with a
liberty to the petitioners to get the present writ petitions restored
if ultimately special appeal as filed by them is decided in their
favour.
8. Pending applications, if any, also stand disposed of.
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(D) S.B. Civil Writ Petition No.6421/2007
1. The present writ petition has been filed assailing order dated
12.06.2007 passed by the Divisional Commissioner.
2. Admittedly, order dated 12.06.2007 passed by the Divisional
Commissioner had already been quashed and set aside by this
Court in Writ Petition No.42/2008 vide order dated 22.12.2008 in
the writ petition filed by Gajendra Singh. This Court has, while
adjudicating Writ Petition No.10317/2009 already observed that
judgment dated 22.12.2008 is a judgment in rem and as a
consequence thereof, order dated 12.06.2007 would be deemed to
be quashed for all purposes.
3. Further, it is an admitted fact that judgment dated
22.12.2008 has already been assailed by Koyali vide D.B. Civil
Special Appeal No.1251/2011 and by one Vikram Singh vide D.B.
Civil Special Appeal No.1466/2011. An interim order dated
25.01.2019 has also been passed in the said special appeal.
4. In view of the above facts, no order requires to be passed in
the present writ petition as ultimate fate of the petition would
depend on result of the aforementioned special appeals. The writ
petition is therefore disposed of, however with a liberty to the
petitioner to get the present writ petition restored if after decision
of the above special appeals, any cause still survives to him.
5. Pending applications, if any, also stand disposed of.
(REKHA BORANA),J
158to167-manila/vij/-
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