Singh Vs. Board of Revenue for Rajasthan  INSC 431 (12 October 1993)
M.M. PUNCHHI, M.M. SINGH N.P. (J) CITATION: 1994 SCC (1) 215 JT 1993 (6) 152
1993 SCALE (4)202
These appeals are directed against a common order dated July 28, 1981 made by the High Court of
Rajasthan, Jaipur Bench in Civil Writ Petition Nos. 164 to 168 of 1977.
cause for these appeals is a direction issued by the Board of Revenue,
Rajasthan, a functionary established under the Rajasthan Tenancy Act, 1955,
empowered, in the regular course, to hear second appeals. Five suits were filed
by the respective appellants in these appeals against the State of Rajasthan in
the Court of the Assistant Collector, Bharatpur seeking declaration that by
virtue of Section 5(4) of the Rajasthan Zamindari and Biswedari Abolition Act,
1959 they had become Khatedars for they were owners in actual cultivation over
the said area on the crucial date. The suits were contested by the State of Rajasthan. In support of their claim the
appellants, the plaintiffs therein, produced revenue records such as jamabandis
of the Samvat 2002, 2006, 2018 and 2026 showing consistent actual possession
over the lands claimed by them.
appears that jamabandi for the Samvat 2015 was not produced by either party and
this jamabandi could have been the closest to the date on which the zamindari
and biswedari under the Act was abolished. The gap therein was filled by the plaintiffs
appellants by production of oral evidence which the trial court believed. The
only witness examined by the State being the patwari of the village could be of
no assistance to defend the suit. As a result the suits were decreed. The first
appeals filed by the State of Rajasthan
before the Revenue Appellate Authority were dismissed. The second appeals by
the State to the Board of Revenue too were dismissed. The orders of the lower
courts and the decrees passed by them thus got merged in the judgments and
decrees of the Board of Revenue.
Some outsiders, interested in disestablishing the rights of the
plaintiffs-appellants, filed an appeal before the First Appellate Authority
against the judgment and decree of the Assistant Collector. The First Appellate
Authority spurned the attempt holding those persons as having no locus standi.
Further attempt by them in the second appeal before the Board of Revenue met
the same fate.
it seems that those persons were able to create a dent in the minds of the
members of the Board of Revenue and thus it made the following observations:
apparently did not occur to the Assistant Collector that in fact the jamabandi
is the settlement record brought up to date and it is this annual register (khatauni)
which has to be seen while applying Section 5(4) of the Zamindari and Biswedari
Abolition Act. Oral evidence may be useful for establishing possession but such
evidence does not meet the requirements of the section. The khudkasht has to be
recorded as such in the jamabandi prior to the date of vesting. For the benefit
of the trial court it is stated that an entry of 'maqbooza malkan' merely
indicates that the land is biswedari and is not to be read as showing khudkasht.
It is not possible for us to set aside the orders of the trial court in the
appellate proceedings because those orders are not under challenge on merits.
However, since a blatant illegality has come to notice the Board cannot ignore
it. We deem it proper to invoke the power of general superintendence under
Section 221 of the Tenancy Act and set aside the decrees of the trial court in
these six (five) cases. The Assistant 218 Collector, Bharatpur will rehear
these suits and decide the khatedari rights of the plaintiff, if claimed, under
the 1959 Act strictly in accordance with Section 5(4) of that Act keeping in
view the observations made above after summoning the relevant jamabandi.
relief sought will naturally be granted only if khatedari is established and if
such relief is permissible under law." The aggrieved appellants thereafter
approached the High Court in writ petitions seeking upsetting of the view of
the Board of Revenue, but to no avail.
Having heard learned counsel for the appellants, since he alone is here to
assist us, and no one is appearing on behalf of State of Rajasthan, we view it with surprise the
approach of the Board of Revenue. Section 221 of the Rajasthan Tenancy Act
provides vesting a general power of superintendence and control in the Board
over all revenue courts and all such courts as are subordinate thereto.
that provision there are provisions beginning with Section 222 up to Section
228 which provide for appeals and the manner in which they need be presented in
the for a given therein and the Board of Revenue is one such. Section 229,
inter alia, thereafter provides that subject to the provisions of the Code of
Civil Procedure, 1908 the Board of its own motion or on the application of a
party to a suit or proceeding may review and may rescind, alter or confirm any
decree or order made by itself or by any of its members. In the face of these
provisions it is not understandable how could the Board exercise power of
general superintendence under Section 221 of the Act for it had beforehand in
exercise of its appellate powers confirmed the decree of the trial court i.e.
of the Assistant Collector's Court. By the doctrine of merger, the judgment and
decree of the first court got merged in that of the first appellate court and sequelly
on second appeal with that of the Board of Revenue.
order, if at all, was reviewable, subject to its falling within the scope of
Section 229 of the Rajasthan Tenancy Act. It is worth noting that two sets of
appeals, one after the other, had been preferred by the State of Rajasthan and on their dismissal were not put
to further challenge by it in the High Court. The State seems to have rested
content with the result. Later when some other elements chose to intervene and
sought stalling of these orders and their effort in that regard was negatived
by the Board of Revenue, it misapplied Section 221 in setting aside a confirmed
order of the trial court. That provision being not applicable Section 229 did
not come in the picture it having been not invoked. It is patently clear in
these circumstances that the Board of Revenue assumed jurisdiction which it did
not have to upset its own final judgment, arrived may be wrong on facts, in the
manner it has done. Sequentially, the High Court too was in error in approving
the same when the jurisdictional error was glaring on the face of it.
a matter like this we too would have proceeded hesitatingly in interfering
unless we were otherwise satisfied on facts that the relief was due to the
appellants. The Board of Revenue has observed that in order to invoke Section
5(4) of the Zamindari and Biswedari Abolition Act, entries of the 219 revenue
record of the date conceived therein would settle the position. That may be
true to begin with. But here there are entries of the revenue records preceding
that date and then after that date, which the trial court has relied upon with
the aid of oral evidence to conclude continuous exclusive possession of the
appellants over their respective lands in khatedari rights. The salutary
principle of appreciation of evidence in possessory matters is that when a state
of affairs is shown to have existed for a long course of time but a gap therein
puts to doubt its continuity prudence requires to lean in favour of the
continuity of things especially when some plausible explanation of the gap is
forthcoming. The trial court seems to have gone on that basis to decree in favour
of the appellants, and so did the First Appellate Authority as also the Board
of Revenue in second appeal. It was thus too late in the day for the Board to
have waken up in ancillary proceedings to find fault in the reasoning of the
trial court. The High Court was obviously in error in not upsetting it.
the foregoing reasons we allow these appeals and set aside the judgment and
order of the High Court settling the matter in favour of the appellants. Since
there is no opposition, there shall be no order as to costs.