- (1.) BY way of this intra -Court appeal, the petitioners -appellants seek to question the order Dt. 23.01.2014 whereby the learned Single Judge of this Court has dismissed the writ petition (CWP No. 7563/2008) preferred against the judgment and order of the Board of Revenue for Rajasthan, Ajmer ('the Board') Dt. 21.01.2008 whereby the Board had accepted the reference made by the Collector, Jaisalmer under Sec. 232 of the Rajas than Tenancy Act, 1955 ('the Act of 1955') and set aside the judgment and decree Dt. 31.03.1994 passed by the Sub -Divisional Officer, Pokaran ('the SDO') in favour of the petitioners -appellants in Revenue Suit No. 34/1989. The petitioners -appellants had filed the said revenue suit seeking declaration of Khatedari Rights over 382 bighas of land comprised in Khasra No. 527 of Revenue Village Rajmathjai claiming their possession over the same before commencement of the Act of 1955. The SDO decreed the suit to the extent of 304 bighas of land by the impugned judgment and decree Dt. 31.03.1994.
(2.) THE reference came to be made against the judgment and decree aforesaid, inter alia, on the ground that Khatedari Rights had already been conferred upon the petitioners -appellants in respect of 136 bighas of land of Khasra No. 527; and conferment of Khatedari Rights in respect of further 304 bighas of land on the basis of oral evidence was entirely unjustified. It was also submitted that Khasra No. 527, in fact, comprised of the land admeasuring 136 bighas and only because of an error on the part of Settlement Department, Khasra No. 527 was recorded as comprising of 440 bighas of land, contrary to the Revenue Record. The reference so made was accepted by the Board in its order Dt. 21.01.2008, inter alia, with the finding that Khasra No. 527 comprised of 136 bighas of land only and merely for the map prepared by the Settlement Department showing 440 bighas in Khasra No. 527, Khatedari Rights could not have been conferred on the appellants. It was also found that the petitioners -appellants had, in fact, sold off 136 bighas of land wherefor Khatedari Rights were conferred upon them and then, the suit was filed only in order to take undue advantage of the error of the Settlement Department. The Board, therefore, accepted the reference and set aside the questioned judgment and decree Dt. 31.03.1994. The attempted challenge by the petitioners -appellants to the judgment and order Dt. 21.01.2008 has failed with the learned Single Judge endorsing the findings of the Board and also observing that the question of limitation would not come in the way of the Board entertaining the reference where the attempt has been to grab the Government land on the strength of a patently illegal order. The learned Single Judge, inter alia, observed and held as under: - "7. Indisputably, on the basis of the cultivatory possession of the petitioners at the time of settlement, the land ad measuring 136 bighas comprising Khasra No. 527 was entered in the name of the petitioners. Thereafter, at no point of time, the petitioners claimed Khatedari Rights over more land on the basis of alleged cultivatory possession. It is a matter of record that 136 bighas land was sold by the petitioners and thereafter, after a lapse of about 30 years, in the year 1989 the petitioners claimed Khatedari Rights over 382 bighas land alleged to be falling within Khasra No. 527. On the basis of the documentary evidence, it is apparent that the petitioners were never in cultivatory possession of the land more than 136 bighas. Merely on account of the error crept in the map prepared by the Settlement Department showing 440 bighas land in Khasra No. 527, the undue advantage sought to be claimed by the petitioners without there being any documentary evidence on record regarding their cultivatory possession over the land in question, has rightly been negated by the Board of Revenue. In the considered opinion of this Court, the Board of Revenue was absolutely justified in holding that findings arrived at by the Court below without appreciating the evidence on record in its entirety and objectivity are perverse. 8. Coming to the contention of the petitioners that in view of availability of the remedy of appeal against the judgment and decree passed by the Revenue Court, no reference could have been made under Sec. 232 of the Act, suffice it to say that Section 232 does not put any restriction on the reference being made in the matters where other remedies are available under the statute. The remedy of reference under Sec. 232 is independent of other remedies available and not dependent upon the parties making the application in this regard. As a matter of fact, where the judgment and decree passed by the Revenue Court is found to be patently illegal, the Collector in its discretion may make the reference to the Board of Revenue invoking the provisions of Section 232 of the Act. 9. Coming to the question of limitation, it is to be noticed that Section 232 does not prescribe any limitation for making a reference. It is true that where no limitation is prescribed for exercise of the power under a statute, it should be exercised within reasonable time. But then, the power conferred under Sec. 232 is of wide amplitude and the exercise of the power is restricted only in respect of the suits or proceedings falling within the purview of Section 239 of the Act i.e. the suit where the plea of propriety right is raised. In this view of the matter, the question of limitation should not come in the way of Board of Revenue in entertaining the reference where the attempt is made to grab the Government land on the strength of a patently illegal order. Thus, the decision of the Hon'ble Supreme Court in Santosh Kumar Shivgonda Patel's case (supra), relied upon by the learned counsel, also does not help the petitioner in any manner. 10. In view of the discussion above, the order impugned passed by the Board of Revenue setting aside the judgment and decree Dt. 31.03.1994 passed by the SDO, Pokaran in Suit No. 34/89 does not suffer from any jurisdictional error warranting interference by this Court in its supervisory jurisdiction under Art. 227 of the Constitution of India."
(3.) ON the given fact situation, the findings recorded by the Board and endorsed by the learned Single Judge remain unexceptionable. At the time of initial settlement, 136 bighas of land comprised in Khasra No. 527 was entered in the name of the appellants. At that stage, they did not claim Khatedari Rights over more than 136 bighas of land. They, in fact, sold off such 136 bighas of land and after about 30 years, attempted to claim Khatedari Rights over further 382 bighas of land, alleged to be forming the part of Khasra No. 527 on the basis of an error of the Settlement Department. The SDO had decreed the suit without proper enquiry and merely on the basis of oral evidence. The Board has considered all the factual aspects in sufficient detail and the learned Single Judge has also examined all the relevant aspects before endorsing the order of the Board.;