Mohammad Rafiq, J. - (1.) THIS writ petition was originally filed by Onkar, since deceased, in the year 1999 challenging judgment dated 27.03.1996 passed by the Revenue Appellate Authority, Kota, and judgment dated 10.08.1998 passed by the Board of Revenue for Rajasthan, Ajmer. Both the courts, while reversing judgment dated 15.03.1995 of the Sub Divisional Officer, Kota, have recorded concurrent finding.
(2.) BRIEFLY stated, the facts of the case are that petitioner has agricultural land in joint account of one Chaturbhuj bearing khasra No. 26 measuring 12 bigha situated in village Talab, Tehsil Pipalda. The said land, after construction of river in the area, was reduced to 6 bigha 14 biswa only and accordingly the Revenue Department/Land Settlement Department issued new khasra No. 1218. Prior to catchment of agriculture land, the area of petitioner's land was 8 bigha and 14 biswa. Petitioner and said Shri Chaturbhuj needed some money, therefore, they mortgaged their land bearing khasra No. 26 (new khasra No. 1218) measuring 8 bigha 14 biswa with respondent No. 5 Surjya for a sum of Rs. 5000/ - on 'Jeth Sudi 14, Samvat 2036'. Limitation of unregistered mortgaged deed came to end after five years of its execution i.e. on Jeth Sudi 14, Samvat 2041 (12th June, 1984), thereafter, he had no right to keep the land in his possession. When petitioner went to the land in question on 24.06.1984 for cultivation, respondent No. 5 did not allow him to cultivate the land. Petitioner thereafter filed a suit before the Sub Divisional Officer, Kota, against respondent No. 5 Surja and said Chaturbhuj. Sub Divisional Officer, by judgment dated 15.03.1995, decreed the revenue suit declaring that land measuring 6 bigha 14 biswa (8 bigha 14 biswa at the time of mortgage) comprising khasra No. 1218 (old khasra No. 26) situated in village Talab, Tehsil Pipalda, is the land of his possession and ownership. Further prayer that defendant -respondent Surjya be directed to handover possession of the land in question mortgaged with him, restraining him from interfering with possession of plaintiff -petitioner, was also granted. Respondent Surjya challenged the judgment and decree dated 15.03.1995 before the Revenue Appellate Authority, Kota, by filing appeal, who, after hearing both the parties, vide judgment and decree dated 27.03.1996, allowed the same and set aside the judgment and decree of learned Sub Divisional Officer, Kota. Dissatisfied therewith, petitioner approached the Board of Revenue for Rajasthan, Ajmer, by filing second appeal. Learned Board of Revenue dismissed by same vide judgment and decree dated 10.08.1998. Hence this writ petition. Smt. Kamla Jain, learned counsel for petitioner has argued that learned Revenue Appellate Authority and learned Board of Revenue have failed to appreciate that when petitioner went on 24.06.1984 to his field to plough it, the respondent No. 5 came there with his companions and did not allow him to plough the field and started quarrelling with him. Despite expiry of mortgage period, he did not handover possession of the land in question to petitioner. In these circumstances, petitioner filed an application under Section 183A of the Rajasthan Tenancy Act. Learned Sub Divisional Officer has rightly allowed the said application by order dated 15.03.1995. Petitioner also impleaded Chaturbhuj as non -petitioner No. 6 as party to the suit for the reason that he was joint khatedar of the land in question but petitioner did not seek any relief against him. The period of limitation of mortgage ended on 12.06.1984 and thereafter defendant -respondent No. 5 Surjya had no right to continue in possession. The Revenue Appellate Authority as well as the Board of Revenue erred in law in not appreciating this aspect of the matter. They have recorded perverse and wrong finding while declining relief to petitioner for the reason that he deposed in his statement before the Sub Divisional Officer, Kota on 29.10.1985 that 8 1/2 bigha of land of khatedari of his brother Chaturbhuj is situated in village Talab and that the said land was never mortgaged by him to Surjya at any point of time. Earlier, he filed a suit against Beera and Surjya and decision of that suit was also produced before the Sub Divisional Officer as Exhibit -1. Document, that was produced by respondent No. 5 Surjya, is Exhibit -2. Reply to the plaint is Exhibit -3. The land was neither sold by him to Surjya nor it was mortgaged to Surjya. He had forcibly taken his land in his possession. The copy of jamabandi was produced as Exhibit -4. From the copy of jamabandi, it is clear that the land was never sold to Surjya at any point of time. In cross -examination, petitioner has made it specifically clear that he mortgaged the land about 10 -15 years back with Heera and not Surjya. Chaturbhuj died about 4 1/2 years back. He did not sell his land to Surjya for Rs. 19,500/ - and did not receive Rs. 8500/ -in advance. From his statement it is clear that respondent No. 5 has taken the land illegally in his possession.
(3.) LEARNED counsel for petitioner further argued that the courts below have committed grave illegality in not properly going through the reply filed by respondent No. 5 Surjya. In the reply, on one hand, the respondent No. 5 stated that the land was of his own possession and share but on the other hand, he stated that the plaintiff -petitioner sold the land to him. If the land was of the defendant -respondent No. 5, then how could it be sold by plaintiff -petitioner to him and why the respondent No. 5 would have purchased his own land from plaintiff -petitioner. Stand of defendant -respondent No. 5 was thus contradictory. The respondent No. 5 illegally took possession of the land, though the petitioner is the khatedar owner of the land in question. In fact, respondent No. 5 stated before the Sub Divisional Officer, Kota, on 11.12.1989, that petitioner sold his land to him on 01.04.1984 and received an advance of Rs. 8500/ - from respondent No. 5 and it was agreed that rest of the amount of Rs. 11000/ -, shall be paid to him at the time of execution of registered sale -deed of the land. Learned Board of Revenue has committed grave illegality in not appreciating that learned Sub Divisional Officer, Kota, after considering the submissions of the parties framed issues and rightly decreed the suit on that basis. Petitioner, in rejoinder to reply dated 07.08.1984 stated that respondent No. 5 Surjya filed an application under Section 212 of the Rajasthan Tenancy Act and he has come entirely with wrong and false averments in application, which were denied by petitioner. Petitioner specifically stated in rejoinder that he sold the land to respondent No. 5 Surjya but respondent No. 5 wrongly stated before the court that he sown crop of maze on the land in question as there was no crop of respondent No. 5 at the time of filing application under Section 212 of the Rajasthan Tenancy Act nor it was never existed there on 31.07.1984.;