MOHAN Vs. BOARD OF REVENUE

JUDGEMENT

(1.) The dispute is in regard to 22 bigha 8 biwas of land, situated in Village - Chomu, originally belonging to late Shri Brij Mohan. It has been alleged that late Shri Jodha was servant of late Shri Brij Mohan and he used to look after the land in question. It has further been alleged that, though, the said Shri-Jodha was removed by Shri Brij Mohan on 25.6.1952, however, he trespassed over the land again on 28.6.1952. Being aggrieved, late Shri Brij Mohan and one Smt. Gaindi Devi filed an application under Section 7 of the Rajasthan Tenancy Protection Ordinance, 1949 (for short 'the Ordinance) against Shri Jodha on 2.8.1952 before the Anti Ejectment Officer (sub Divisional Officer). The application. so filed under Section 7 of the Ordinance was dismissed by the officer concerned on 24.11.1954. A further revision against the above order dated 24.11.1954 was filed before the Board of Revenue. During the pendency of the revision petition, the Rajasthan Tenancy Act, 1955 (for short 'the Tenancy Act') came into force. As per request made by above Shri Brij Mohan, the Board of Revenue, treating the said revision petition as an appeal, transferred the same to the Additional Commissioner, Jaipur. The appeal, however, came to be dismissed by the Additional Commissioner, Jaipur vide order dated 13.2.1956. Further revision filed by Shri Brij Mohan also came to be dismissed by the Board of Revenue vide order dated 26.9.1956. The Board of Revenue gave a categorical finding that Shri Jodha has been in possession of the entire land in dispute and the land holders had no case for removal of Shri Jodha from whole or any part of the same. The above order dated ' 26.9.1956 was not challenged by Shri Brij Mohan any further.

(2.) It appears that after Tenancy Act having come into force, the mutation of land in question was made in the name of Shri Jodha as per provisions of Section 19 of the Tenancy Act. Shri Brij Mohan and Smt. Gaindi Devi, after dismissal of their revision petition by the Board of Revenue, again filed a suit under Sections 88 and 183 of the Tenancy Act against Shri Jodha for declaration and possession, alleging Shri Jodha as a trespasser. The suit, so filed by Shri Brij Mohan, was dismissed by the Assistant Collector. The appeal filed by shri Brij Mohan was, however, accepted by the Revenue Appellate Authority vide order dated 10.6.1964. The order and decree passed by the Revenue Appellate Authority was challenged by Shri Jodha before the Board of Revenue. The second appeal so filed was partly accepted by the Board of Revenue vide order dated 27.9.1969 remanding the matter back to the Courts below on the question of rights of Shri Jodha under Section 19 of the Tenancy Act. On remand of the matter, the trial Court vide order dated 25.1.1975 held that Shri Jodha had acquired khatedari rights under Section 19 of the Tenancy Act. Consequently, the Revenue Appellate Authority dismissed the first appeal filed by Shri Brij Mohan vide order dated 2.3.1977. The Board of Revenue, however, while accepting the second appeal filed by Shri Brij Mohan vide order dated 23.9.1986, held Shri Jodha to be a trespasser and ordered for his ejectment with possession to late Shri Brij Mohan, Hence, the present writ petition, challenging the order dated 23.9.1986 passed by the Board of Revenue.

(3.) Mr. Ajeet Bhandari, learned counsel appearing on behalf of the petitioners, has submitted that in spite of clear finding given by the Board of Revenue in the earlier application and further provisions of Section 19 of the Tenancy Act the petitioner late Shri Jodha in no case could have been treated as trespasser.