M.N. Bhandari, J. - (1.) BY these writ petitions, a challenge is made to the order passed by the Sub -divisional Magistrate (for short "SDM") so as the order passed in appeal by the Revenue Appellate Authority and the Board of Revenue.
(2.) LEARNED counsel for the petitioners submits that a suit for permanent injunction was filed under Section 188 of Rajasthan Tenancy Act, 1955 (for short "Act of 1955"). It was in regard to the various khasras of Village Rohadakhurd, Tehsil Dausa. It was alleged that on 01.05.1995, when the plaintiff - Kanaram was raising boundary in the field, the defendant/s - respondent/s came with deadly weapons to take possession of the land and for that started quarreling with the petitioners -plaintiff/s. The proceedings was initiated under Section 107 & 116(3) of Cr.P.C. A suit was simultaneously filed to seek injunction to restrain disturbance in peaceful cultivatory possession of the petitioners. A written statement was filed along with counter claim by the defendant/s -respondent/s. It was stated that the land in dispute has wrongly been entered in the name of plaintiffs as the respondents - defendant/s are in possession of land, thus be declared to be Khatedar. The land was earlier recorded in the name of their ancestors. The SDM Court dismissed the suit whereas the counter claim submitted by the respondents - defendants was accepted. The order passed by the SDM and subsequent orders in appeal were in ignorance of the fact that throughout the petitioners were held to be khatedar but recorded finding regarding possession of defendant/s - respondent/s. The suit for injunction was dismissed while accepting the counter claim of the defendants - respondents.
(3.) THE Courts below failed to consider that in the proceedings for consolidation, the land was recorded in the name of petitioners' ancestors and they were in possession of land, thus not only that the finding recorded in regard to the possession of the defendants - respondents is erroneous but even acceptance of the counter claim was in ignorance of the fact that after the consolidation proceedings, change of the Khatedari right cannot be made by accepting counter claim filed by the defendants - respondents. The petitioners had produced "Khasra Giradawari" to show cultivatory possession in the relevant years but aforesaid was also ignored while recording finding that defendants - respondents were in possession of land in question. The Courts below failed to consider the evidence produced by the petitioners for that and otherwise, they are still in possession of land.;