CHAUHAN, J. - (1.) THE instant writ petition has been filed for setting-aside the judgment and order of the Board of Revenue dated 26. 12. 1998 (Annexure 3), by which the appeal No. 107/1995 filed by respondent No. 5 has been allowed setting-aside the judgments and decrees of the Revenue Appellate Authority, Hanumangarh, dated 31. 5. 1995 (Annexure 2) and of the Assistant Collector, Sangaria, dated 3. 8. 1994 (Annexure 1 ).
(2.) THE facts and circumstances giving rise to this case are that petitioner had executed an agreement to sell of twelve Bighas of land in favour of respondent No. 5 and others on 30. 6. 1978. Subsequently, a second agreement to sale dated 30. 12. 1980 was executed for the purpose of sale of the said land into. pieces and the present controversy is in respect of an agreement to sell to the extent of one Bigha, thirteen Biswas and six Bishansis. Petitioner filed revenue suit No. 73/93 in the Court of the Assistant Collector u/s. 183 of the Rajasthan Tenancy Act, 1955 (for short "the Act, 1955") for eviction of respondent No. 5, alleging that the later failed to pay the balance amount as per the terms of the said agreement and, thus, had no right to retain the possession of the land which had been handed over to him after taking the earnest money at the time of entering into the agreement to sell. Moreso, the agreement was in contradiction of the provisions of Sec. 42 (a) of the Act, 1955, which did not permit the sale in fragments. Some other reliefs were also sought. Respondent No. 5 defendant contested the suit. However, vide impugned judgment dated 3. 8. 1994 (Annex. 1), the suit was decreed. Being aggrieved and dissatisfied, respondent No. 5 preferred an appeal before the Revenue Appellate Authority, which was dismissed vide judgment and order dated 31. 5. 1995 (Annx. 2 ). THE respondent's appeal No. 107/95/ta/hanumangarh, has been allowed by the Board of Revenue vide judgment and order dated 26. 12. 1998 (Annx. 3 ). Hence this writ petition. It is not only most unfortunate but astonishing also that the Courts below have dealt with the case in a very caviller manner and all the Courts below failed to consider the case in correct perspective. This Court, though fully aware of its powers in a limited jurisdiction u/art. 227 of the Constitution, would fail in its duty if does not consider the case in totality. (Vide M/s. Savita Chemicals (Pvt.) Ltd. vs. Dyes & Chemical Workers Union & Anr. (1 ). It may be necessary to deal with the judgments and orders of the Courts below separately. TRIAL COURT's JUDGMENT AND DECREE : The suit filed by the petitioner-plaintiff u/s. 183 of the Act, 1955, was based on the averments that respondent No. 5 had been put in possession of the land in dispute after taking earnest money and executing an agreement to sell dated 30. 12. 80. The amount, as agreed as per the said agreement, was not paid, there-fore, he lost the right to retain possession of the land and became liable for ejectment. The suit was contested by respondent No. 5 and the trial Court framed seven issues, namely:- (1) Whether the agreement to sell dated 30. 10. 1988 was in contravention of the provisions of Sec. 42 (a) of the Act, 1955, and if yes, whether the same can be declared inconsequential? (2) Whether the said agreement to sell could be declared unenforceable as the party did not comply with its terms and conditions? (3) Whether the plaintiff was Khatedar of the land in dispute? (4) Whether defendant was trespasser on the land in dispute and liable to be ejected? (5) Whether there was any cause of action for the plaintiff to file a suit? (6) Whether the Court had jurisdiction to entertain the suit, or it should have been filed before the Civil Court? (7) To what relief the plaintiff was entitled for ? While deciding the first issue, the trial Court held that the agreement to sell did not confer any title on the respondent-defendant and Sec. 42 (a) of the Act, 1955 dealt with the case of transfer, therefore, the said provisions were not attracted at all. While dealing with Issue No. 2, the trial Court held that as the respondent-defendant had been put in possession by the petitioner-plaintiff himself, the question of declaring the respondent-defendant trespasser did not arise. However, it held that as the respondent-defendant did not put the copy of the agreement on record, the issue was decided against him.
(3.) IT is strange that the first sentence, while deciding Issue No. 2, started that the burden of proof was on the petitioner-plaintiff and in the conclusion it has been decided against the respondent-defendant as he failed to produce the copy of the said agreement to sell. The trial Court has gravely erred while shifting the onus of proof from plaintiff to the defendant without giving any reason whatsoever. The trial Court also failed to make a distinction between "burden of proof" and "onus to prove". The suit as specifically filed on allegation that the respondent-defendant did not pay the amount as per the terms of the agreement. Therefore, it was the duty of the petitioner-plaintiff to file a copy of the agreement and prove its contents and further to prove that as per the agreement, the amount had not been paid. The trial Court was never aware of : what were the terms and conditions of the agreement; what was the due date on which the amount was to be paid; and whether the respondent-defendant had failed to make the payment thereof on the due date. IT simply referred to the pleadings that the money had not been paid by the respondent-defendant, and that too without considering the pleadings of the respondent-defendant that for executing the sale deed, prior permission of the Collector was mandatory which had to be obtained by the petitioner-plaintiff as per the agreement and as he could not obtain the said permission, there had been no fault on their part and his suit for specific performance was pending before the civil Court. So far as the first part of the judgment on this issue is concerned, as the petitioner-plaintiff himself had admitted that he had put the respondent-defendant in possession after taking the earnest money and executing the agreement to sell, on mere admission of the petitioner-plaintiff, there was no need to lead any evidence on this issue as it is settled proposition of law that the facts admitted by the parties need not to be proved. In Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayak Gosavi & Ors. (2), the Hon'ble Apex Court observed as under:- " An admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. " The same view had been reiterated in Avadh Kishore Dass vs. Ram Gopal & Ors. ;