PRASAD, J. - (1.) HEARD learned counsel for the parties.
(2.) PRESENT writ petitions have been filed by the sons of Late Ram Chandra alias Chandriya by caste Mali, resident of Khema Ka Kuwa, Jodhpur. Petitioners claim that they had cultivatory possession of Khasra No. 125 and 123 situated in Village Suthala, Tehsil & District Jodhpur. In Khasra No. 125, they had 16 bighas and 11 Biswas and in Khasra No. 123, they had 9 Bighas land. In the record of 1943 A. D. , the ancestors of the petitioners were recorded as tenants. Ram Chandra, father of the petitioners died on Jeth Sud 9 Svt. Year 2027 (corresponding to 1970 approximately) and the petitioners continued to be in cultivatory possession of the land as khatedar tenants. Petitioners filed a suit on 11. 2. 1981 for declaration of khatedari rights and injunction. Notices issued under Section 91 of The Rajasthan Land Revenue Act, 1956 has also been challenged. These notices have been exhibited in the writ petition. These notices give a clear shadow to the claim of the respondents that, the State handed over the possession of the land to the Housing Board. On account of the aforesaid notices, the petitioners filed a suit in the Court of S. D. O. , Jodhpur on 11. 2. 1981. It was pointed out that the land in question has been acquired and mutated in the name of Rajasthan Housing Board vide Mutation Nos. 94 and 104. On account of this, the petitioners were allowed to implead Rajasthan Housing Board we party and amend the suit to implead Housing Board as a party. The suit was contested by the defendants. According to the defendants, Khasra No. 123 having an area of 65 Bighas 18 biswas and Khasra No. 125 having an area of 54 Bighas and 16 biswas were recorded as Sawai Chak. After acquisition, the possession has been handed over to the Housing Board and it was denied on behalf of the Board that there is any cultivatory possession of the petitioners. Five issues were framed by the S. D. O. Plaintiffs produced following documents:- copies of parcha Khatoni dated 2. 5. 56, Boghori receipts V. S. 2008, 2009, 2010, 2011, 2015, 2018, 2019, 2020, 2021 and 2022, Jamabandies for the years 2009, 2012 to 2015, 2035-38, Dhal Banch for the years 2009 to 2024 (Dhal Banch is prepared every year for the purpose of collection of revenue after khasra Girdawari of Kharif in month of November) and Khasra Girdawaries for the years 2008-2011, 2012-2015, 2016-2018 and 2035-2038. In support of the case, petitioners examined 5 witnesses including petitioner No. 3 Prem Sukh as P. W. 5. The defendants did not produce any document for proving the alleged acquisition. It was contended on behalf of the Housing Board that the land in question has been allotted to them. The petitioners have claimed that no notice has been issued to them or to their father before any alleged allotment was made in favour of the Housing Board.
(3.) AFTER trial of the suit, the S. D. O. decreed the suit vide judgment dated 9. 5. 1985 and the petitioners were declared as Khatedars of 9 Bighas in Khasra No. 123 and 16 Bighas 11 Biswas in Khasra No. 125. A decree for permanent injunction was also granted against the defendants restraining them from interfering with the possession of the petitioners. The State of Rajasthan and the Housing Board separately preferred appeal against the judgment of the S. D. O. dated 9. 5. 1985 before the Revenue Appellate Authority. The Revenue Appellate Authority after considering the material on record and hearing the parties, dismissed the appeals by judgment dated 12. 2. 1986. The Rajasthan Housing Board and State of Rajasthan have filed two second appeals before the Board of Revenue. The Board of Revenue by its judgment dated 8. 8. 1997, allowed the appeals. The Board of Revenue also allowed the application of the Rajasthan Housing Board under Order 41 Rule 27 C. P. C. This order of the Board has been impugned. To challenge the judgment of the Board of Revenue, present writ petitions have been filed. It has been claimed by the petitioners that the Board of Revenue had no jurisdiction to set aside the concurrent findings of fact regarding the Khatedari rights of the petitioners and their actual possession on the land in question in second appeal under Section 224 of the Rajasthan Tenancy Act, 1955. The petitioners claimed that neither any document pertaining to acquisition was produced before the S. D. O. , Jodhpur nor before the Revenue Appellate Authority. Thus, the S. D. O. decided the matter in favour of the petitioners holding that they were khatedar tenants of the land in question. Before the Board of Revenue, documents were produced by the Housing Board regarding acquisition etc. , which could not have been allowed at the appellate stage. Thus, the judgment is based on documents produced in second appeal without being subjected to formal proof. Such documents have wrongly been made the basis of setting aside the judgments and decrees of the Courts below, which were founded on concurrent findings of fact. ;