AMITAVA ROY,CJ - (1.) THE judgment and order dated 25.2.2013 rendered in S.B.Civil Writ Petition No.4829/2010 is being called in question in the intra-court appeal. We have heard Mr.Rajesh Joshi, learned counsel for the appellants and Mr.V.K.Mathur and Mr.Vinay Jain, learned counsel for the respondents.
(2.) THE facts leading to the filing of present appeal, in short, are that the respondents-herein alongwith others instituted several Revenue Suits in the Court of Assistant Collector-cum-Sub- Divisional Officer, Jodhpur against the appellants-herein and along therewith filed an application under section 212 of the Rajasthan Tenancy Act, 1955 (for short, hereafter referred to as "the Act") seeking appointment of a Receiver in respect of land involved therein and covered by khasra no.126, village Chopasni Tehsil Jodhpur. The respondents claimed themselves to be the owners of the suit land by dint of purchase by registered deed of sale. It was inter-alia alleged by the respondents that the petitioners were interfering with their possession of the land involved by digging earth therefrom and pleaded that to protect the same, it was essential to appoint a Receiver. A report dated 20.5.2008 of the jurisdictional Patwari was relied upon. The learned Assistant Collector-cum-Sub Divisional Officer, Jodhpur vide order dated 19.12.2008 while observing that the respondents were khatedars of the land involved and that the appellants-petitioners were in possession thereof, but had been indulging in digging earth therefrom, appointed a Receiver therefor as according to him, it was warranted in the attendant facts and circumstances. A direction to this effect was thus issued by appointing Tehsildar, Jodhpur to be the Receiver of the suit land by evicting the appellants-petitioners therefrom. Being aggrieved, the appellants-petitioners preferred appeal before the Revenue Appellate Authority, Jodhpur, which by order dated 16.1.2009 reversed the determination of the learned Assistant Collector-cum-Sub Divisional Officer, Jodhpur. The respondents took the challenge to the learned Board of Revenue, which reiterated that the respondents were recorded khatedars of the land involved and that the possession of the appellants- petitioners thereof was as trespassers thereon. Placing reliance on the report dated 20.5.2008 of the jurisdictional Patwari, it was held that the appellants-petitioners had been digging earth whereby the nature and character of the suit land was being altered. According to the learned Board of Revenue, the prevailing circumstances had the potential of creating friction between the parties and being of the view that it was necessary to secure the right and interest of the respondents in the suit land, interfered with the decision of the learned Revenue Appellate Authority and restored the order dated 19.12.2008 of the learned Assistant Collector-cum-Sub Divisional Officer, Jodhpur. Being dissatisfied with this verdict, the appellants-petitioners sought to invoke the writ jurisdiction of this Court. By the impugned judgment and order, the challenge having been negated, they are in appeal.
(3.) MR .Joshi has emphatically urged that as none of the conditions enumerated in Section 212 of the Act being existent, there was no exigency for appointment of a Receiver vis-a-vis the suit land and thus, the learned Single Judge ought to have annulled the determination made by the learned Board of Revenue. In any view of the matter, the appellants having been admittedly found to be in possession of the suit land involved, the decision to appoint the Receiver by dispossessing them and that too only acting on the report of the Patwari concerned, was wholly illegal, he urged. According to the learned counsel, even assuming without admitting that necessary pre-conditions for exercise of power under section 212 were available, in the facts and circumstances of the case, an order of temporary injunction as contemplated therein could have been passed to appropriately secure the property, if deemed fit and necessary. The learned Single Judge having failed to consider this vital legal aspect of the matter, the impugned judgment and order is not sustainable in law and on facts and is laible to be set aside, he insisted.;