- (1.) This writ petition under Article 226 of the Constitution of India has been filed by petitioners against the respondents on 4.8.90 with a prayer that by an appropriate writ, order or direction, the judgment and decree dated 10.1.85 (Annex.1) passed by the Assistant Collector (Head Quarter), Nagore, judgment dated 5.1.89 (Annex.2) passed by the Revenue Appellate Authority, (II), Jodhpur and the judgment dated 27.10.89 (Annex. 3) passed by the Board of Revenue may kindly be quashed.
(2.) It arises in the following circumstances: i) The predecessor-in-interest of the petitioners Shri Binjraj Singh (hereinafter referred to as the deceased) filed a suit under Sections 88 and 188 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act of 1955) against the predecessor-in-interest (defendants No.1 to 5) of respondents No.4 to 15 before the Assistant Collector, Nagaur alleging inter alia that the land in dispute was his khudkast land as he was erstwhile Jagirdar. This land was given to the original defendants No.1 to 5 for cultivation for one year and they vacated the land after one year and thereafter the original plaintiff (deceased) was in exclusive cultivatory possession of the land in question. It was further alleged that since the land was in personal cultivation of the original plaintiff (deceased), he was Khudkast holder thereof and on resumption of Jagir, he had become khatedar tenant. (The petitioners are heirs of original plaintiff Binjraj Singh). The original defendants No.1 to 5 executed registered sale-deed dated 15.7.71 in favour of defendant No.6 (respondent No.16) in respect of land in question. It was further alleged in that suit that since the entries in the original revenue records in favour of original defendants No.1 to 5 were erroneous, the same error continued to be repeated in subsequent record and hence the entries recorded in the Revenue Record are not correct. Consequently, a prayer was made by the original plaintiff that the land in dispute be declared his khatdari land and perpetual injunction be granted. ii) The defendants No.1 to 5 did not put up their appearances before the Assistant Collector, Nagore and, therefore, proceedings were initiated exparte against them. The original defendant No.6 (respondent No.16) in whose favour the land was sold by the original defendants No.1 to 5 also did not appear and proceedings were initiated exparte against him also. Thus whole suit of the original plaintiff was conducted exparte against all the defendants No.1 to 6. It was further alleged that since defendant No.6 (respondent No.16) appeared on behalf of the original plaintiff before the Assistant Collector, Nagore as a witness and supported the case of the original plaintiff (deceased) rather than the case of defendant No.1 to 5 and his case, therefore, suit of the original plaintiff should have been decreed, but on the contrary, the learned Assistant Collector, Nagore through his judgment dated 10.1.85 (Annex.1) dismissed the suit of the plaintiff Binjraj Singh. iii) That after being aggrieved from the judgment dated 10.1.85 (Annex.1) passed by the Assistant Collector, Nagore, the petitioners preferred an appeal, before the Revenue Appellate Authority (H), Jodhpur. The Revenue Appellate Authority (II), Jodhpur dismissed the appeal filed by the petitioners vide judgment dated 5.1.89 (Annex.2) and upheld the judgment dated 10.1.85 (Annex.1) passed by the Assistant Collector, Nagore. iv) That aggrieved from the judgment passed the petitioners preferred second appeal before the Board of Revenue. The learned Board of Revenue also dismissed the second appeal filed by the petitioners vide judgment dated 27.10.89 (Annex.3) and upheld the judgment dated 5.1.89 (Annex.2) passed by the Revenue Appellate Authority-(II), Jodhpur. Hence, this writ petition with the abovementioned prayer.
(3.) In this writ petition, the main contentions of the learned counsel for the petitioners are as under: i) That the suit filed by the original plaintiff before the Assistant Collector, Nagore proceeded exparte against the defendants No.1 to 5 and 6 and therefore, the suit filed by the original plaintiff (deceased) should have been decreed automatically against all the original defendants including defendant No.6 (respondent No.16). ii) That since the defendant No.6 (respondent No.16) in whose favour the original defendants No.1 to 5 executed registered sale-deed, had supported the case of the original plaintiff, the suit of the original plaintiff should have been decreed even on the basis of admission made by the defendant No.6 (respondent No.16) and in not doing so, all the three courts below have committed illegality and the suit of the original plaintiff was wrongly dismissed by the Assistant Collector, Nagore at the first instance and thereafter by the Revenue Appellate Authority (II), Jodhpur and the Board of Revenue. Therefore, it is prayed that the writ petition filed by the petitioners should be allowed and the impugned judgments passed three courts below should be set aside. ;