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Badiya and Ors. v. State of Rajasthan and Ors. - (High Court of Rajasthan) (01 Jun 2017)

No court shall make any declaration where Plaintiff being able to seek further relief, than a mere declaration of title, omits to do so

MANU/RH/0436/2017

Tenancy

Present writ petition is against judgments whereby, suit filed by Petitioners and appeals filed by them were dismissed respectively. Further, order dated 30th September, 1997 dismissing review petition filed by Petitioners before Board of Revenue has also been challenged. Plaintiff filed a suit under Sections 88 and 188 of Rajasthan Tenancy Act, 1955 on 29th August, 1973 seeking a declaration regarding ownership of land situated at village Shiv, correction in revenue record and injunction against Respondents from interfering in his possession and not to allot the land to anyone else.

Plaintiff sought declaration and injunction pertaining to land in question with 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 Tehsildar under Section 63 (1)(viii) of Act,1955 wrongly alleging that, Petitioner went to Pakistan and consequently his tenancy rights allegedly stood extinguished. Plaintiff also claimed that, he was in possession of land in question and, therefore, sought injunction against dispossession. Plea was resisted by State by supporting order dated 14th June, 1968 passed under Section 63 of Act alleging that, Plaintiff was not in possession of land. Allottees of land, besides supporting allotment made to them, disputed that, Plaintiff was in possession of 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.

In present case, S.D.O. besides holding that, Petitioner had not challenged order dated 14th June, 1968, held even on merits that, Petitioner had failed to prove that, he in fact had gone to Gujarat and has not gone to Pakistan. Petitioner in suit itself claimed that, since Samvat Year 2023, he had gone to Gujarat along with livestock and had returned back after three years. Though oral evidence was led by Petitioner and it was claimed that, he had gone to Gujarat, no documentary evidence regarding petitioner's stay at Gujarat was placed on record.

It is an admitted fact that, Petitioner left village in Samvat Year 2023 and before he returned back his tenancy rights in land have already been extinguished under Section 63 of Act and land in question had been allotted to Respondent Nos. 3 and 4, who consistently claimed to be in possession of land in question. S.D.O. framed issue regarding said aspect. Material which has come on record and has been produced in present writ petition also along with reply, though Jamabandi pertains to Samvat Year 2063-2066 as Annex. R-4/1, as it is not case of Petitioner that, he was dispossessed after filing of suit, fact remains that, Petitioner was not in possession of land.

Provisions of Section 34 of Specific Relief Act, 1963 provides that, no court shall make any declaration where 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. Section 209 of Act provides that, power can be exercised on application of Plaintiff and after framing necessary issues. Admittedly in present case, neither any application has been filed nor any issue in this regard has been framed and, therefore, provision has no application to facts of present case. Judgment of S.D.O., as upheld by Revenue Appellate Authority and Board of Revenue concurrently, does not call for any interference.

Tags : LAND   OWNERSHIP   INJUNCTION  

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