- (1.) THE present writ petition of 1989 is having its second round of hearing by the Single bench pursuant to the remand order passed by the Division Bench of this Court while allowing State's appeal being D.B.C.S.A.W. No.718/2000, arising out of present SBCWP No.3458/1989, State of Rajasthan & Anr. Vs. Sal Khan & Ors., decided on 20.07.2010 with the following observations: - "4. In substance, the dispute which was subject matter of writ petition out of which this intra -court appeal arises was whether any case is made out by the writ petition (respondent No.1 herein) for acquiring the "Khatedari Rights" in his favour under the provisions of Rajasthan Tenancy Act (for short hereinafter called 'the Act") in respect of land bearing Khasra No.1989, 1981, 2001, 2083 and 2010 admeasuring 1276 bighas situated in village Ranasar of which he claimed to be in possession. To claim this relief, the writ petition (Respondent No.1) filed a suit under Section 88 of 188 of the Rajasthan Tenancy Act in the court of Assistant Collector, Barmer. In this suit, he claimed a declaration of his Khatedari Rights over the land in question and further sought a prohibitory injunction against the State authorities not to disturb his possession over the land. This suit was contested by the State by filing a written statement. By order Ex.P/1, the Collector dismissed the suit. The respondent felt aggrieved of this dismissal and filed an appeal respondent felt aggrieved of this dismissal and filed an appeal before the appellate authority. The appellate authority by his order allowed the appeal and in consequence decreed the respondent's suit. It is against this appellate order, the State felt aggrieved and filed Second Appeal before the Board of Revenue. The Board of Revenue allowed the appeal and while setting aside of the order passed by first appellate authority, restored that of Collector's order. As a consequence, the respondent's suit was dismissed. The respondents then felt aggrieved of the order passed by the Board of Revenue and filed a writ petition before the High Court, out of which this intra -court appeal arises. By the impugned order, the writ court allowed the writ petition and while setting aside of the order of the Board of Revenue, restored that of the first appellate court. As a consequence thereof, the respondents' suit stood decreed. It is against this order, the State felt aggrieved and has filed this intra -court appeal. 5. x x x 6. x x x 7. With respect, we are inclined to observe that the writ cournt committed an error when instead of examining the legality and correctness of the Board of Revenue's order, it is proceeded to examine the entire issue on fact and evidence like an original court or we may say, like the first appellate court. It being a writ petition under Article 227 of the Constitution of India, it was obligatory on the part of the writ court to have examined the findings of the Board of Revenue within the parameters laid down while exercising supervisory jurisdiction conferred by Article 227 ibid in a case reported in 2003 (3) SCC 524 (Sadhana Lodh Vs. National Insurance Co. Ltd. and another) by the Supreme Court. We may consider appropriate to quote the law laid down by the Supreme Court in the case of Sadhana Lodh's (supra) explaining as to how and to what extent the powers under Article 227 ibid can be exercised in such cases. "The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the fact of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate authority or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision." 8. As observed supra, the writ court failed to keep in view the aforementioned law laid down while deciding the writ petition and in our opinion acted like an original court or first appellate court. We can not concur with such approach of the writ court which in our view is not in conformity with the law laid down in Sadhana Lodh's case (supra). 9. A writ court when call upon to exercise the powers under Article 227 of the the Constitution, has to see whether Board of Revenue committed any jurisdictional error while recording any finding and if so how? In other words, only jurisdictional issues can be examined in the petitions under Article 227 ibid and not the issues relating to facts much less appreciation of evidence and facts. 10. In the light of foregoing discussion, we allow this appeal and while setting aside of the impugned order, remand the case to the writ court to decide the writ petition afresh on its merit in the light of observations made supra. No cost. (Dinesh Maheshwari), J. (A.M. Sapre),J."
(2.) WHILE allowing the writ petition of the present petitioner earlier, the learned Single Judge of this Court on 09.07.1998 had allowed the aforesaid writ petition with the following observations: - "I have given my anxious consideration to the arguments raised before me. I have also went through the judgments of all the three courts mentioned above. The crucial question which comes to be decided in this case is whether the petitioner and his father were in possession of the pieces of land in question as sub - tenants? It appears that State has tried to bring out a different case against record in order to tarpido petitioner's claim in order to raise objection that since the facts are disputed, writ petition may not be maintainable. I am afraid, this is against the law because the respondent cannot be allowed to make out a case different on facts in order to defeat the claim of the petitioner. The record shows that when settlement was made in the year 1958, names of Kasam and Majid were entered in the record. That settlement record was never got corrected by due process of law and the respondent cannot take its benefit now in order to discredit the claim of the petitioner. When the Tehsildar made inquiry on a complaint, he found that the petitioner was in occupation of the land and was cultivating. It is admitted position that the land revenue was also being paid. So when the settlement recorded the names of Kasam and Majid themselves in the year 1958 and the land revenue was also being paid on their behalf and the petitioner was in occupation of the land, State was estopped in saying that the petitioner was not in possession or that the settlement record was prepared by its functionaries wrongly, State itself admitted possession of the petitioner over the disputed land and it does not lie in the mouth of the State to say that the possession of the petitioner was of a trespasser. The possession of the petitioner was protected by Rajasthan Protection of Tenants Ordinance, 1949 and thereafter by the Rajasthan Tenancy Act. It may also be stated that the State never raised any objection to the possession of the petitioner or his father for more than 20 years and the land revenue was being deposited by the petitioner to the State which was being accepted without any objection. From the record I find that Kasam and Majid were the relations of Adrim. When they left for Sindh in samvat year 1996 (1940 A.D.) their lands remained in possession of Adrim who is the father of petitioner. If they were not sub -tenants then what was their position? Learned Government Advocate is not able to explain. They were definitely in occupation of the land and the land revenue was being paid by them. It is found that their possession has been recorded in the revenue record. It appears that the procedure laid down in section 61 of the Rajasthan Tenancy Act has not been followed even then the Board of Revenue treated them as trespassers. Petitioner's rights as sub -tenant, were protected as soon as Rajasthan Protection of Tenants Ordinance, 1949 came into force and earlier his rights were protected under the Marwar Tenancy Act. He cannot be regarded as a trespasser under the said Ordinance because the land never remained unoccupied without authority. The sub -tenant under the Ordinance means the person who holds land from the tenants thereof and the word 'tenant' has been defined which includes a sub -tenant but does not include a trespasser. After the commencement of the Rajasthan Tenancy Act, this Ordinance came to an end and according to Section 5 (43) petitioner became the tenant as he had continued to be sub -tenant which is included in the definition of "tenant" as defined under the said Ordinance as well as under the Rajasthan Tenancy Act. In the result, the writ petition is allowed and the judgments Ex.1 and Ex.3 are set aside. The petitioners will not be dispossessed from the disputed land. No orders as to costs. (MOHD. YAMIN), J." This being a very old matter with about 24 years life in this Court and rights claimed of half a century or more old, was set down for hearing on board today. Both the learned counsel for the parties have argued at length reiterating the arguments raised earlier as well as fresh arguments.
(3.) MR . J.L. Purohit, Sr. Advocate assisted by Mr. Ajay Purohit, learned counsel for the petitioner, vehemently submitted that the learned revenue courts below of learned S.D.O., Barmer, as well as Board of Revenue, have erred in dismissing the revenue suit filed by the present petitioner, Sal Khan S/o Adrim Khan, whereas the learned Revenue Appellate Authority vide its order Annex.2 dated 29.12.1980, had decreed such suit in favour of present petitioner and, therefore, the order passed by the learned Single Judge on earlier occasion, deserves to be reiterated and the writ petition filed by the petitioner deserves to be allowed. Mr. J.L. Purohit, Sr. Advocate, inter - alia, relied upon the provisions of Section 10 read with definition of word 'Tenant' in Section 3 (10) of the Marwar Tenancy Act, 1949; and also a decision of Division Bench of this Court in the case of Purajsingh & Ors. Vs. State of Rajasthan & Anr. reported in 1966 ILR 1105 and submitted that on the basis of 'Lagan' receipts (land revenue), paid by the father of the present petitioner, namely, Sh. Adrim Khan, on coming into force of the Rajasthan Tenancy Act, 1955, (for short, hereinafter referred to as 'Act of 1955') the present petitioner will be deemed to be 'Khatedar' of the said 276 Bighas of land, (wrongly mentioned as 1276 Bighas of land in the order of the Division Bench of this Court quoted above) in various Khasra numbers. He, therefore, argued that the revenue suit filed by the present petitioner under Sections 88 and 188 of the Act of 1955 deserved to be decreed and the order of the Board of Revenue impugned in the present writ petition including the order of learned S.D.O., Barmer, deserve to be quashed and set aside.;