- (1.) LEARNED counsel Shri Sudesh Gupta appearing for Mr. N. K. Goyal for the petitioner submitted that this petition is squarely covered by the decision of this Court (Hon'ble Bhagwati Prasad, J.) dated 3. 5. 1999 delivered in S. B. Civil Writ Petition No. 477 of 98 (1 ). He submitted that in the same line this petition may also be allowed and decree drawn by the Board of Revenue setting aside the decree of trial Court be set aside and the trial court be directed to try the suit afresh.
(2.) HOWEVER, learned counsel Shri Jain appearing for the respondent vehemently submitted that it was an ex-parte order and without hearing the State, straightway the order was passed by the Hon'ble Bhagwati Prasad, J. and on merits also this case also it has no application. According to Mr. Jain for the respondents, in this case there was a voluminous evidence showing that the land was Govt. land. Before dealing with the rival contentions raised by the learned counsel for the parties, I would like to reproduce the entire order passed by my learned Brother, Hon'ble Bhagwati Prasad, J. on 3. 5. 99 in Writ Petition No. 477 of 98 (supra), which reads as under:- ``hon'ble SHRI BHAGWATI PRASAD, J. '' Mr. N. K. Goyal, for the petitioner. In this writ petition, order of the Board of Revenue in reference is under challenge, the Board of Revenue while accepting the reference has set aside the decree on the ground that State was not given chance to put up its case. In this background, at best a retrial could be ordered. As and when the Board of Revenue sets aside a decree on such ground, then it becomes imperative that parties are required to be relegated back to their position where they can put up their case. It would have been better if the Board of Revenue itself remanded the matter back to the trial court and would have permitted the parties to lead evidence and do the needful. In this case, the same has not been done. It is deemed proper that the parties should be directed to appear before the trial court and pursue the suit from the level which is required to be pursued. The parties will appear before the trial court i. e. Asstt. Colonisation Commissioner, Kolayat on 1. 7. 1999. The decree drawn by the Board of Revenue setting aside the decree of the trial court is maintained but it is further directed that the trial court will try the suit afresh. With these observations, the writ petition is disposed of as indicated above. '' From the impugned order passed by the Board of Revenue (Annex. 3) it is clear that it had accepted the reference on the ground that there was not an iota of evidence like the khasra-girdawari, Jamabandi, parcha, rent receipts, pass-book etc. in favour of the petitioner, nor any report was sought from concerned Patwari, Girdawars or Tehsildar. The Board of Revenue also observed that the Assistant Colonisation Commissioner merely relying upon the statement of two witnesses, which were also not clear, still the khatedari rights were conferred in favour of the petitioner. The Board of Revenue has also reproduced the decree passed by Assistant Colonisation Commissioner in a suit filed by the petitioner in para no. 6 of its order, which I would like to reproduce which reads as under:- Varnacular Text
(3.) 16-2-87 Varnacular Text From the above order passed by the Assistant Colonisation Commissioner on 16. 2. 1987 it becomes very clear that the Assistant Colonisation Commissioner himself dismissed the suit in absence of petitioner-plaintiff after considering the evidence on record. He also considered the reply filed by the defendant and accordingly he dismissed the suit. It appears that after the pronouncement of the order of dismissing the suit, the petitioner appeared alongwith his witnesses before the Assistant Colonisation Commissioner, therefore, the Assistant Colonisation Commissioner recorded his statement and also the statements of the witnesses without naming them. Accordingly, from the evidence of the plaintiff and the witnesses of the village produced by the plaintiff before the Assistant Colonisation Commissioner, he was satisfied that the disputed land in question was ancestral land, therefore, he reconsidered his earlier judgment and decreed the suit in favour of the petitioner. ;