Before :- R. Banumathi, A.S. Bopanna and Hrishikesh Roy, JJ.
Civil Appeal No(S). 2057 of 2009. D/d. 12.12.2019.
Gyarsa (D) Thr. Lrs. - Appellants
Versus
Board of Revenue & Ors. - Respondents
For the Appellants :- Mr. Ranbir Singh Yadav, Mr. Puran Mal Saini, Ms. Anzu K. Varkey, Mr. Pati Raj Yadav, Mr. Ritesh Patil, Mrs.Pratima Yadav and Ms. Niharika Dudeja, Advocates.
For the Respondents :- Mr. K. L. Janjani, Mr. Pankaj Kumar Singh, Mr. Manindra Dubey, Dr. Vinod Kumar Tewari and Mr. Sarad Kumar Singhania, Advocates.
ORDER
R.Banumathi, J. - Being aggrieved by the judgment in D.B.Civil Special Appeal (Writ) No.1333 of 2007 passed by the High Court of Judicature for Rajasthan, Jaipur Bench, dated 28.01.2008, in and by which the Division Bench affirmed the order passed by the Single Judge, the appellant/plaintiff-Gyarsa (since deceased) has filed the present appeal.
2. Brief facts of the matter are that the appellant-plaintiff has filed a suit under Section 88 of the Rajasthan Tenancy Act before the Sub-Divisional Officer, Jaipur. The dispute between the parties is with regard to the land measuring 25 bighas and 18 biswas of Khasra No.115 situated in Village Pragpura. The appellant-plaintiff contended that respondents No.4 to 6 have trespassed over 12 bighas and 10 biswas of land situated towards north-east. It was further alleged that respondents No.4 to 6 later got their names recorded in the Girdawari and also managed to get the parcha issued in their favour during the settlement operations. The appellant-plaintiff, therefore, prayed that he is the khatedar-tenant of 12 bighas and 10 biswas and the possession of the said property in Khasra No.115 be directed to be handed over to him. The appellant-plaintiff alternatively prayed for the relief of permanent injunction.
3. Respondents no.4 to 6 contested the suit by contending that the appellant-plaintiff is not the Khatedar of 25 bighas and 18 biswas of the land and that Girdawari of Samwat 2011- 2015 (1954-1958) was wrongly recorded in the name of the appellant-plaintiff. The respondents also contended that the land was neither cultivated by the appellant-plaintiff nor was in his possession at any point of time. The respondent contended that the land in khasra No.115 was given to them by former Jagirdar for cultivation and ever since the respondents were in possession of the same prior to settlement and that they were in possession of the same since Samwat 2017 (1960).
4. Upon consideration of the evidence adduced by the parties, the Sub-Divisional Officer vide its judgment dated 23.01.1991 decreed the suit of the appellant-plaintiff by declaring that the appellant-plaintiff was the Khatedar of 12 bighas and 10 biswas in Khasra No.115 and respondents No.4 to 6 have encroached upon the land and they are to be evicted under Section 183 of the Rajasthan Tenancy Act. Accordingly, the Tehsildar, Kotputli was directed to make necessary entries of the Khatedar (appellant) with respect to Khasra No.115 and also directed eviction of the respondents No.4 to 6 and the possession of the land be handed over to the appellant-plaintiff.
5. Being aggrieved, respondents No.4 to 6 have filed the appeal before the Revenue Appellate Authority which was allowed by the judgment dated 06.05.1994 thereby setting aside the judgment of the Sub-Divisional Officer. The Revenue Appellate Authority on the basis of the entries of Khasra Girdawari of Samwat 2017-2019 (1960-1962) held that the father of respondents No.4 to 6, namely, Sona, is the owner. That apart the Revenue Appellate Authority had also referred to the application filed by respondents No.4 to 6 for appointment of receiver and that the possession was handed over to respondents No.4 to 6 on 23.10.1972 to respondents No.4 to 6. The Revenue Appellate Authority held that on the date of filing of the suit the appellant was not in possession of the land and, therefore, the appellant-plaintiff was not entitled to the reliefs sought for in the suit filed on 31.05.1972. The Revenue Appellate Authority also held that the appellant-plaintiff is not entitled to the alternative relief of permanent injunction as the appellant-plaintiff was not in possession of the suit property on the date of filing of the suit. The Revenue Appellate Authority held that at the time of enforcement of Rajasthan Tenancy Act, the appellant-plaintiff-Gyarsa was not registered as sub-agriculturist and that the mutation in his favour does not seem to be proper.
6. Challenging the judgment passed by the Revenue Appellate Authority, the appellant-plaintiff filed the appeal before the Board of Revenue. By Judgment dated 20.10.1998, the Board of Revenue allowed the appeal by holding that Khasra NO.115 measuring 25 bighas and 18 biswas land was recorded in the name of the appellant-plaintiff and accordingly his name came to be recorded by mutation on 20.09.1960 and that the name of the appellant-plaintiff was recorded Girdawaris of Samwat 2011 to 2016 (1954-59). The Board of Revenue held that respondents No.4 to 6 could not produce the documentary evidence to the effect that they were in cultivation of the property in-question.
7. Challenging the judgment passed by the Board of Revenue, respondents No.4 to 6 have filed the writ petition before the High Court. Learned Single Judge had taken note that the suit was filed by the appellant-plaintiff for permanent injunction simplicitor and having failed to prove possession, it was held that the suit filed by the appellant-plaintiff was not maintainable. Learned Single Judge further held that the appellant-plaintiff is claiming right only based on the entries in the mutation and that the appellant-plaintiff has not shown any basis as to what was the foundation in the said entries in the mutation.
8. Placing reliance upon the judgment in the case of Sankalchan Jaychandbhai Patel v. Vithalbhai Jaychandbhai Patel, (1996) 6 SCC 433, learned Single Judge held that mere entries in the name of one or the other party in the revenue records does not create or extinguish title in their favour or against them nor does it have any presumptive value of title. Observing that the plaintiff has not established their case, learned Single Judge set aside the order passed by the Board of Revenue. The appeal preferred by the appellant-plaintiff was came to be dismissed by the Division Bench of the High Court. Being aggrieved the appellant-plaintiff has preferred this appeal.
9. We have heard Mr. Ranbir Singh Yadav, learned counsel appearing for the appellant-plaintiff and Mr. K.L. Janjani, learned counsel appearing for respondents No.5 & 6 and Dr. Vinod Kumar Tewari, learned counsel appearing for respondent No.4.
10. As pointed out by the Revenue Appellate Authority in its judgment that on the date of filing of the suit i.e. 31.05.1972, the appellant-plaintiff was admittedly not in possession of the property in-question. The Revenue Appellate Authority has also pointed out that on the application filed by the respondents-defendants, the receiver has handed over the possession to respondents No.4 to 6. The Revenue Appellate Authority and the learned Single Judge held that Khasra Girdawari of the Samwat year 2017 (1960) shows that the land in dispute was in the name and possession of respondents No.4 to 6 and Parcha settlement was also issued in their names. The learned Single Judge held that the correctness of the mutation entry in the name of the appellant-plaintiff Gyarsa made under Section 19(2) of the Act becomes doubtful because such rights could be conferred only by the Assistant Collector/SDO. The learned Single Judge held that there was no evidence that the appellant-plaintiff was in possession of the suit land within 12 years prior to filing of the suit on 31.05.1972. The concurrent findings recorded by the courts that the appellant-plaintiff has not established his right and possession over the suit property bearing Khasra No.115 is based upon the documents and evidence and the same does not suffer from any infirmity. In view of the concurrent findings, we do not find any ground warranting interference with the impugned order and the appeal is liable to be dismissed.
11. The appeal is accordingly dismissed. No costs.
