MANU/RH/0436/2017

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 82/1999

Decided On: 01.06.2017

Appellants: Badiya and Ors.
Vs.
Respondent: State of Rajasthan and Ors.

Hon'ble Judges/Coram:
Arun Bhansali

ORDER

Arun Bhansali, J.

1. This writ petition is directed against the judgments dated 16/4/1979 passed by the S.D.O., Barmer, 29/9/1995 passed by the Revenue Appellate Authority and 2/4/1997 passed by the Board of Revenue, whereby, the suit filed by the petitioners and appeals filed by them were dismissed respectively. Further, order dated 30/9/1997 dismissing the review petition filed by the petitioners before the Board of Revenue has also been challenged.

2. The plaintiff Badiya filed a suit under Sections 88 and 188 of the Rajasthan Tenancy Act, 1955 ('the Act, 1955') on 29/8/1973 inter alia seeking a declaration regarding ownership of land situated at village Shiv, correction in the revenue record and injunction against the respondents from interfering in his possession and not to allot the land to anyone else. Whereafter, the suit was amended and respondent Nos. 3 and 4, Jagmal Singh and Mishra Ram, were impleaded as parties to the suit and cancellation of allotment made in their names was sought. The amended plaint was filed on 13/2/1974. It was claimed in the suit that the land comprised in khasra Nos. 557, 717, 776 and 690 was in possession of the plaintiff and was standing in his name in the revenue record. It was also claimed that on account of repeated drought in village Shiv, the plaintiff in Samvat Year 2024 took his livestock and went to Gujarat on account of which the Patwari collusively made a report that plaintiff had gone to Pakistan and based on that report, the Tehsildar, Shiv declared the land as government land, of which the plaintiff was unaware, no notice was given to him nor the notice was affixed on the land. It was claimed that when the plaintiff returned back after three years from Gujarat and started cultivating the land, Patwari objected and threatened dispossession. The plaintiff filed the suit on 1/10/1971, which was rejected for absence of notice under Section 80 CPC and on account of the fact that a case under Section 25A was pending. It was alleged that the allotment made to respondent Nos. 3 and 4 was incorrect and the plaintiff continues to be in possession of the land in question. Based on the said averments, the reliefs as indicated hereinbefore were claimed.

3. Written statement was filed by the State inter alia indicating that as the plaintiff had migrated to Pakistan, after undertaking due process the competent authority under the provisions of Section 63(1)(viii) of the Act by his order dated 14/6/1968 declared the land as government land and the same has been recorded as such in the revenue record. The proceedings were conducted in accordance with the law, now the petitioner has returned back from Pakistan and wants to grab the land. The possession of the plaintiff was denied and it was indicated that the land in question was in possession of the allottees. It was prayed that the suit be dismissed.

4. On behalf of the defendant initially a written statement contesting the suit was filed by Mishra Ram, whereafter application was filed inter alia claiming that as the land is in dispute, he may be allotted another land.

5. On behalf of Jagmal Singh, written statement was filed claiming that he was in possession of the land and, therefore, the suit was liable to be dismissed. In additional pleas, it was submitted that as the plaintiff has only sought declaration without consequential relief of possession, the suit was not maintainable and was liable to be dismissed.

6. The S.D.O. framed five issues including issues pertaining to the fact as to whether the plaintiff did not go to Pakistan and whether for not seeking consequential relief of possession the suit was not maintainable. The S.D.O. by his impugned judgment came to the conclusion that the plaintiff has not challenged the order dated 14/6/1968 passed under Section 63(1)(viii) of the Act; the claim that plaintiff went to Gujarat on account of drought along with his livestock was not proved; the appeal filed by the petitioner against the order of allotment has been dismissed; the claim that the plaintiff is in possession of the land was not proved; in view of the fact that the appeal was filed by the petitioner against several allottees and only two have been impleaded, the suit was bad for non-joinder, as the plaintiff was not in possession, therefore, the relief for possession should have been sought. Based on the said findings, the suit was rejected.

7. Feeling aggrieved, the petitioner filed an appeal before the Revenue Appellate Authority. The Revenue Appellate Authority came to the conclusion that the proceeding against the petitioner under Section 63 of the Act was in accordance with law, no steps were taken to question the validity of the order dated 14/6/1968 passed under Section 63 of the Act and, therefore, the plaintiff was not entitled to any relief. The land in question has already been allotted to others, therefore, the plaintiff was not entitled to grant of any relief and consequently dismissed the appeal.

8. On filing the second appeal before the Board of Revenue, the Board of Revenue also came to the conclusion that the order passed under Section 63 of the Act was not challenged, land was allotted to other persons, the petitioner is not in possession and, therefore, was not entitled to decree of declaration and as the two courts below have recorded findings of fact, the same does not call for any interference. The review petition filed by the petitioner was also rejected by the Board of Revenue.

9. It is submitted by learned counsel for the petitioner that all the authorities below have committed grave error of law in coming to the conclusion that as the petitioner had not challenged the order dated 14/6/1968 passed under Section 63(1)(viii) of the Act, he was not entitled to grant of any relief, which determination is ex facie incorrect. It is submitted that by filing the suit for declaration and injunction the petitioner was entitled to seek declaration irrespective of passing of the order dated 14/6/1968 and, therefore, the suit was liable to be decreed and the judgments passed deserve to be set aside.

10. In this regard, reliance was placed on the judgment of this Court in Mst. Hanifa & Anr. v. Board of Revenue & Ors. : MANU/RH/0668/1988 : 1988 (1) W.L.N. (Rev) 500.

11. Further submissions were made that the cursory finding recorded by the S.D.O., which finding has simply been upheld by the Revenue Appellate Authority and Board of Revenue regarding the petitioner having migrated to Pakistan and, therefore, his tenancy stood extinguished, is baseless; no material has been brought on record to indicate that the petitioner had migrated to Pakistan and, therefore, the judgments impugned deserve to be quashed and set aside on this count alone.

12. In this regard reliance was placed on Legal Heirs of Abdul v. State of Rajasthan & Ors. : 2004 RRD 333. Further reliance was placed on Suleman v. State of Rajasthan & Ors. : D.B. Spl. Appeal (Writ) No. 369/2016 decided on 1/12/2016.

13. With regard to not seeking of consequential relief, it was submitted that as the petitioner was in possession of the land in question, it cannot be said that the suit for not seeking consequential relief of possession was not maintainable and, therefore, determination in this regard is baseless.

14. Learned counsel appearing for the respondent Jagmal Singh vehemently opposed the submissions. It was submitted that the land was allotted to the respondent on 22/8/1971 and since then he is in cultivatory possession. On dismissal of the suit, the application was filed by the petitioner along with the appeal seeking stay, which was rejected by the Revenue Appellate Authority and even before the S.D.O. the application seeking temporary injunction was rejected. It was vehemently submitted that as the petitioner did not seek consequential relief of possession, simple suit for declaration was not maintainable and, therefore, the writ petition was liable to be dismissed.

15. Reliance was placed on Ram Saran & Anr. v. Smt. Ganga Devi : MANU/SC/0523/1972 : AIR 1972 SC 2685, Natha Ram & Ors. v. Bhika & Ors. :MANU/RH/0287/1979 : 1979 W.L.N. (UC) 468, Nabi Khan v. Roojdar & Ors. : MANU/RH/0347/2010 : 2010 (3) Civil Court Cases 380.

16. Learned counsel appearing for Mishra Ram - respondent No. 4, submitted that the basis for filing of the suit seeking declaration with the averments that the plaintiff Badiya was in possession was false, since the date of allotment the respondent is in possession of the land in question. Khasra Girdawari for the period Samvat Year 2063-2066 has been placed on record in support of the said contention. Further documents have been produced to indicate the possession of the respondent No. 4 on the land allotted to him. Again averments have been made regarding non-maintainability of suit for mere declaration without seeking relief for possession as the same being barred in law. It was prayed that the writ petition be dismissed.

17. No rejoinder to the reply filed by respondent Nos. 3 and 4 has been filed.

18. I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

19. The plaintiff Badiya sought declaration and injunction pertaining to the land in question with the allegation that he had gone to Gujarat in Samvat Year 2024 and returned back after about 3 years and before his returning back, order dated 14/6/1968 was passed by the Tehsildar under Section 63 (1)(viii) of the Act wrongly alleging that the petitioner went to Pakistan and consequently his tenancy rights allegedly stood extinguished. The plaintiff also claimed that he was in possession of the land in question and, therefore, sought injunction against dispossession. The plea was resisted by the State by supporting the order dated 14/6/1968 passed under Section 63 of the Act alleging that the plaintiff was not in possession of the land. The allottees of the land, besides supporting the allotment made to them, disputed that the plaintiff was in possession of the land in question and took a specific plea that for lack of seeking consequential relief qua possession the mere suit for declaration was not maintainable.

20. The S.D.O., besides coming to the conclusion that order dated 14/6/1968 had not been challenged, also came to the conclusion that the land in question was allotted to several allottees and only two allottees were impleaded as parties and, therefore, for non-joinder of necessary parties, the suit was bad. Further, the plea that the plaintiff had gone to Gujarat was not accepted and on account of the fact that consequential relief was not sought the suit was dismissed.

21. The first appellate court and second appellate court i.e. Revenue Appellate Authority and Board of Revenue have upheld the said findings.

22. So far as the plea raised by the counsel for the petitioner regarding lack of necessity of challenging the validity of judgment dated 14/6/1968 is concerned, the said aspect is squarely covered by the Division Bench judgment in the case of Mst. Hanifa (supra), wherein, the Division Bench held that the proceedings under Section 63(1)(viii) of the Act held by the Assistant Collector were of summary nature and it could not be held conclusive and binding between the parties in a regular suit and, therefore, the courts below wrongly assumed that the proceedings to be binding upon the petitioner. However, in the present case, the S.D.O. besides holding that the petitioner had not challenged the order dated 14/6/1968, held even on merits that the petitioner had failed to prove that he in fact had gone to Gujarat and has not gone to Pakistan. The petitioner in the suit itself claimed that since Samvat Year 2023 he had gone to Gujarat along with the livestock and had returned back after three years. Though oral evidence was led by the petitioner and it was claimed that he had gone to Gujarat, no documentary evidence whatsoever regarding petitioner's stay at Gujarat was placed on record.

23. Besides the above, the material which was available on record included the order Annex. P/3 passed by the S.D.M., Barmer under the provisions of Section 25A, wherein, proceedings initiated against the petitioner were dropped on account of default on the part of the S.H.O. but the same in any case indicates that the petitioner was facing allegation under the said proceedings also for having migrated to Pakistan without a valid Passport. Though, in view of the law laid down by this Court in the case of Mst. Hanifa (supra) the order passed under Section 63(1)(viii) is not conclusive, however, for seeking relief under Section 88 of the Act the petitioner was required to lead evidence to support his plea that he in fact had gone to Gujarat. Once the said plea has not been established by the petitioner and his absence from the land in question is admitted as per his own averments, the order passed by the competent authority dated 14/6/1968 cannot be ignored even if the same was not being conclusive.

24. In view thereof, the finding recorded by the S.D.O. on issue No. 1 regarding the plea of the petitioner having gone to Gujarat and not to Pakistan cannot be said to be perverse and the concurrent finding of three authorities below does not call for any interference.

25. The petitioner by filing the application No. 51/74 before the Collector had challenged the allotments made in favour of Jagmal Singh, Sanga, Kesra, Chhoga, Lamu and Mishra, which application filed by him was rejected on 13/2/1975. However, in the suit the petitioner initially did not implead any allottee as party and on application made by respondent Nos. 3 and 4, only they were impleaded as parties. In view of the fact that the petitioner had initially challenged the allotment made in favour of six allottees and did not implead any of them as party and even after on application being made by respondent Nos. 3 and 4, only they were impleaded as parties, the finding of the S.D.O. regarding non-joinder of necessary parties also does not appear to be incorrect and the finding in view thereof on the said aspect also does not call for any interference.

26. The other issue which arises for consideration pertain to filing of suit for declaration without seeking possession and its maintainability on that count. It is an admitted fact that the petitioner left the village in Samvat Year 2023 and before he returned back his tenancy rights in the land have already been extinguished under Section 63 of the Act and the land in question had been allotted inter alia to respondent Nos. 3 and 4, who consistently claimed to be in possession of the land in question. The S.D.O. framed issue regarding the said aspect. The material which has come on record and has been produced in the present writ petition also along with reply, though the Jamabandi pertains to Samvat Year 2063-2066 as Annex. R-4/1, as it is not the case of the petitioner that he was dispossessed after filing of the suit, the fact remains that the petitioner was not in possession of the land.

27. The provisions of Section 34 of the Specific Relief Act provides that no court shall make any declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. The law in this regard is well settled. Recently, the Hon'ble Supreme Court in Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar v. Chandran & Ors. : MANU/SC/0147/2017 : (2017) 3 SCC 702 reiterated the principle laid down in the case of Ram Saran (supra) as under:-

"31. One of the submissions made before the courts below, on behalf of the defendant, was that the suit for mere declaration when the plaintiff was not in possession of the property, was not maintainable and hit by Section 34 of the Specific Relief Act, 1963, the plaintiff having not sought for recovery of possession.

32. The trial court, after considering the aforesaid submissions, recorded its conclusions in para 14 which is to the following effect:

"From the facts of above cited suit, plaintiff in this suit has prayed for the relief of declaration without seeking the relief of recovery of possession and under these circumstances, it is clearly seen that the plaintiff is not entitled to get such relief. Therefore, it is held that the suit is not maintainable legally."

33. Section 34 of the Specific Reliefs Act, 1963 provides as follows:

"Section 34. Discretion of court as to declaration of status or right:

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

.............."

34. In the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court in Ram Saran v. Ganga Devi, wherein paras 1 & 4 following was stated:

"1. This is a plaintiffs' appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi, the defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession of either of the entire or even any portion of the suit properties.

4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable."

35. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. The plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit."

28. Consequently, the suit filed by the petitioner Badiya for declaration, for not seeking relief of possession, was not maintainable and was liable to be dismissed.

29. A submission has been made in ground (iv) of the writ petition that even if it is assumed that the petitioner was not in possession of the land in question, still the relief of possession could be granted to the petitioner under Section 209 of the Act.

30. Section 209 of the Act reads as under:

"209. Granting any relief to which plaintiff is entitled- In any suit or proceedings, the court may, on the application of the plaintiff and after framing the necessary issues, grant any relief which the court is competent to grant and to which it may find the plaintiff entitled, notwithstanding that such relief may not have been asked for in the plaint or application:

Provided that, after framing such issue, the court shall, on the request of either party, grant reasonable time for the production of evidence."

31. A bare look at the said provision reveals that power can be exercised on the application of the plaintiff and after framing necessary issues, admittedly in the present case, neither any application has been filed nor any issue in this regard has been framed and, therefore, the provision has no application to the facts of the present case.

32. In view of the above discussion, the judgment of the S.D.O., as upheld by the Revenue Appellate Authority and Board of Revenue concurrently, does not call for any interference. There is no substance in the writ petition and the same is, therefore, dismissed.

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