- (1.) THIS is a writ application by Shrinarain under Sec. 226 of the Constitution against an order of the Revenue Board dated the 4th April, 1963.
(2.) THE following admitted pedigree table would be useful in disposing of the case : Jainarain Gopal Mangilal (died in 1940) Goran (daughter) Baldeo (died in 1953) Goria (died in 1940) Mst. Rambha (widow) (died in 1957) Shrinarain (Adopted son) This writ application arises out a suit filed by Mst. Goran for declaration and possession against the petitioner before us namely Shrinarain in the court of the Assistant Collector, Tonk, on the 18th April, 1959. Goran's case was that the agricultural lands which were the subject matter of dispute between the parties were partly in the Khatedari of her brother Mangilal and partly of Baldeo, being the son of her uncle Gopal. Her further case, put succinctly, was that on the death of her brother Mangilal as also of her cousin Baldeo, she and Mst. Rambha widow of Mangilal were in cultivatory possession of the entire lands of Mangilal and Baldeo until the death of Mst. Rambha in 1957 when the petitioner before us namely Shrinarain forcibly occupied them and got his name mutated in the revenue records. It was also alleged, and there is no dispute about this, that both Mangi Lal and Baldeo had died issueless, and therefore, she prayed that she was entitled to be put in possession of the lands in question as against the aforesaid Shrinarain who was a rank trespasser. The latter resisted the suit on several grounds, only two of which need be mentioned for our present purposes. The first was that he was the adopted son of Mangilal having been taken in adoption to him by his widow Mst. Rambha on Mangilal's death in 1940. The second was that he was in cultivatory possession of these lands in and from before 1955, and, therefore was entitled to retain his possession as a Khatedari tenant thereof by virtue of Sec. 19 of the Rajas-than Tenancy Act, 1955 (Act No. 3 of 1955, hereinafter called the Act ). The trial court decreed the plaintiff suit except that it did not give any relief as respects penalty which Shrinarain as trespasser was liable to pay under Sec. 183 of the Act. Mst. Goran respondent before us was obviously content with the judgment of the trial court and did not contest it further. The petitioner Shrinarain, however, took an appeal to the Revenue Appellate Authority who by his judgment dated the 27th January, 1962 , dismissed it. Thereafter Shrinarain took a further appeal to the Board of Revenue who by their judgment dated the 4th April, 1963, dismissed the appeal also, but they further went on to direct that the respondent before them Mrs. Goran was entitled to receive as Penalty a sum equivalent to ten times the annual rent for the entire period during which he was in unlawful possession. It is against this order that Shrinarain has come up in writ before this Court. Only two points have been raised by learned counsel for the petitioner during the course of the arguments before us. The first is that the learned Mem-bers of the Board of Revenue had exceeded their jurisdiction in awarding a penalty to the respondent Goran in the circumstances of this case. The second is that the to the respondent Goran in the circumstances of this case. The second is mat the courts below had committed a serious error of law in holding that Mst. Goran was entitled to the agricultural lands which were in the Khatedari of Baldeo also, because even assuming that Shrinarain was a trespasser with respect to his lands, he was entitled to retain his possession over them as against everybody except the true owner and Mst. Goran who was Baldeo's uncle's daughter had no right in law to succeed to his estate We shall deal with both these points in the order in which we have mentioned them above. As regards the imposition of penalty on the petitioner under Sec. 183 of the Act, there is no doubt that the courts have the power to impose a penalty upon a trespasser in an appropriate case. The only question, therefore, which remains to consider is whether the Board of Revenue were within their authority to do so in the circumstances of this case. We have no doubt that they were not. The simple reason is that even though the respondent Mst. Goran as plaintiff had claimed this relief in her plaint from the date of the suit in case a receiver was not appointed with respect to the agricultural lands in dispute the trial court rightly or wrongly had not granted this relief to her. This would, in our opinion, amount to a virtual refusal. That being so, if the plaintiff was still anxious to secure it, it was her obvious duty to have filed an appeal against that part of the trial court's judgment to the court of appeal, and if necessary, filed a second appeal to the Board of Revenue. Mst. Goran, however, did nothing of the kind, and it seems to us that she was perfectly content with the decree which had been passed in her favour by the trial court. It was the defendant (petitioner here) who was aggrieved by the judgment of that court and he carried an appeal against it, first to the Revenue Appellate Authority, and then to the Board of Revenue. These appeals failed : but we have no doubt that in dismissing Shrinarain's appeal, the Board manifestly exceeded the due limits of their jurisdiction when they imposed a penalty on him. The appellant before the Board which Shrinarain was, could not be placed in a worse position by the Board than he would have been if he had not filed an appeal. In this view of the matter, we unhesitatingly come to the conclusion that the order of the Board fixing a penalty on him by virtue of the provision contained in Sec. 183 of the Act is vitiated by a manifest error of jurisdiction and cannot be sustained in law. This brings us to the second point raised by learned counsel for the petitioner to the effect that the revenue courts were entirely wrong in decreeing possession of Baldeo's lands in favour of Mst. Goran respondent herein, when the latter could not be accepted in law as his heir. Learned counsel for the respondent has, however, invited our attention to the judgment of the Revenue Appellate Authority dated the 27th January, 1962, wherein it is observed that the only question which was raised on behalf of the petitioner before that court was that Mst. Goran's suit involved the decision of certain issues relating to proprietary title, and, that under section 239 of the Act, such issues could not have been tried and decided by the revenue courts themselves but should have been referred to a civil court for trial and decision and such decision would then have been binding on the revenue courts. This point was repelled by the Appellate Authority, and he held that there was a consensus of legal opinion that where a question of status or title arises with respect to Khatedari rights of a tenant, then the revenue courts have full jurisdiction to decide such points and these need not be referred to civil courts for trial and decision. Further, it clearly appears from the judgment of that court that no other point was raised before it on behalf of the petitioner Shrinarain, who was appellant there, nor was therefore any reply rendered necessary from the other side. In support of this we cannot do better than to reproduce the extract from the judgment of the court which reads as fallows : - "it is, therefore, concluded that it is not necessary that issues No. 1 and 2 are referred to the civil court for decision. The counsel for the appellant has not stressed other points raised in the memorandum of appeal nor any reply was made on them by the counsel for the respondent. " Even so, the learned Appellate Authority somehow thought that it was necessary to consider certain other points and he then proceeded to give his finding on them which went against the appellant. We are clearly of opinion that the Revenue Appellate Authority fell in to an error of law when he proceeded to consider the various other grounds raised in the memorandum of appeal when they were not sought to be pressed at all before him on behalf of the petitioner Shrinarain, nor in our judgment could those points be raised by him before the Board of Revenue: and much less is he entitled to raise any of them in this Court in the exercise of its writ jurisdiction. We, therefore, decline this point to be argued before us. The result is that we partly allow this writ application and quash that part of the order of the Revenue Board which pertains to the imposition of a penalty upon the petitioner and but for that we decline to interfere. In the circumstances, the parties will bear their own costs in this Court. .;