AGARWAL, J. - (1.) THE defendant-appellant has preferred this special appeal against the impugned order dated 01.08.1997 passed by the learned Single judge in SB Civil Writ Petition No.299]/97 whereby the writ petition filed by the defendant was dismissed and the order of the Board of Revenue dated 30.1.1995 was upheld.
(2.) BRIEF relevant facts for the disposal of this appeal are that plaintiff- respondent No.3-Smt.Mangi Bai filed a suit for ejectment under Section 183 of the Rajasthan Tenancy Act, 1955 (hereinafter to be referred as "the Act") on 7.6.85 against the defendant in the Court of Sub divisional Officer, Kota with the averment that the land in dispute is of the khatedari of her brother deceased-Kedar, who in the life time of his father usufructuary mortgaged it in consideration of Rs.700/- about 9 years before in the month of Jeth' and in this regard a document (Tehrir) was executed which is in the possession of defendant. It was also averred that on the expiry of period of mortgage, the plaintiff requested the defendant several times to hand over the possession of the land in dispute to the plaintiff and she even offered to pay Rs.700/- to him but the defendant did not hand over the possession to her. It was further averred that after the expiry of period of mortgage, the possession of the defendant on the land in dispute is as a trespasser and he is liable to be evicted from it. It was also submitted that after the death of Kedar, the plaintiff being his sister is sole legal representative and successor and she is khatedar- tenant of the land, whereas the defendant has no title to it and the plaintiff having superior title is entitled to eject the defendant on the basis of her title. It was prayed by the plaintiff that a decree for ejectment may be passed and the defendant may be directed to hand over the possession to the plaintiff. The defendant-appellant filed written statement and the averments made by the plaintiff were denied and he specifically pleaded that the land in dispute was sold by the khatedar/tenant-Kedar to him on 10.7.1965 and a written document was executed in his favour and possession was handed over to him and since then he is cultivating the land as a khatedar-tenant. It was also averred by the defendant that otherwise also khatedari rights have been accrued to him on the principle of "part performance" as well as adverse possession. Some other objections were also raised in the written statement, but they are not relevant for the disposal of this appeal. On the pleadings of the parties, the learned trial court framed the following issues:- JUDGEMENT_1847_RAJLW2_2012Image1.jpg JUDGEMENT_1847_RAJLW2_2012Image2.jpg
(3.) BOTH the parties in order to prove their respective case produced oral as well as documentary evidence and the trial court after hearing the parties decreed the suit vide judgment dated 12.1.87. The learned trial court arrived at a conclusion that the defendant has failed to prove that the land in dispute was transferred to him in the year 1965 and he is in possession of the land in dispute. The trial court also.held that the possession of the defendant is as a trespasser and he is liable to be ejected. The objection regarding limitation was also rejected. Aggrieved by the judgment and decree passed by the trial court, the defendant filed an appeal being appeal No.266/87 before the first appellate court i.e. Revenue Appellate Authority, Kota but without success and the appellate court dismissed the appeal vide judgment dated 24.11.88 by the reasoning that the document referred by the defendant dated 10.7.65 being unregistered does not transfer any right or title in favour of the defendant and the defendant failed to produce any evidence in support of his plea that the suit is barred by limitation. The appellate court also found that the defendant has failed to prove his possession on the land in dispute.;