MADAN, J. - (1.) DESPITE the matter duly notified in the cause list for today none appeared on behalf of the petitioner. Request was made for short adjournment by Mr. D. K. Tewari on behalf of Mr. R. K. Goyal, learned counsel for the petitioner on the ground that Mr. Goyal is out of station and hence will not be available to assist the court. No prior intimation was received by this court as regards the absence of the counsel nor any intimation was given to Shri N. K. Maloo, learned counsel for respondent Nos. 5 and 6. It is the settled practice of the court that whenever a counsel is not available within station, he should inform not only the court that he would not be available on a particular date but should also obtain no objection from the other side by means of a letter explaining plausible ground for absence and only thereafter the matter may be adjourned. The adjournment should not be granted for the sake of adjournment particularly when the matter has been duly notified in the cause list. Hence, since the service is complete on all the respondents, this writ petition has been heard and is being decided finally by this order.
(2.) THE petitioner has challenged the sustainability of order dt. 9. 8. 1995 (Annexure-6) passed by the Revenue Appellate Authority, Kota as well as 23. 11. 1995 (Annexure-7) passed by Board of Revenue Ajmer. The facts which are relevant for deciding the controversy between the parties briefly stated are that disputed land forming part of Khasra No. 26 measuring 58 Bighas in village Nandna, Tehsil Ladpura, District Kota is alleged to have been set apart under the personal cultivation of the petitioner prior to Samvat 2011 corresponding to the year 1954 AD and the petitioner was paying the land revenue. It has been contended that the petitioner after assumption of Jagir under the provisions of Rajasthan Land Reforms and Resumption of Jagir Act, 1952 for short ``the Act of 1952", the suit land was entered in the revenue record in Khatedari of one Jagannath son of Devi Lal Meena. The petitioner filed a suit under Sections 80 and 88 of the Rajasthan Tenancy Act, 1955 for short "the Act of 1955" against Jagannath for declaration and correction of entries. The suit was registered at No. 556 on 29. 8. 1966 and the proceedings commenced in the Court of Sub Divisional Officer, Kota. During the course of hearing, it was stated on behalf of the temple that the temple had no objection if Khatedari of the suit land was mutated in the name of the petitioner in the revenue records. The SDO decreed the suit vide its judgment dated 17. 6. 1967 (Annexure-1 ). Thereafter both, the petitioner and Panchayat Samiti Ladpura, respondent No. 7 preferred separate appeals against the judgment & decree of the trial Court dt. 7. 1. 1985 before the Revenue Appellate Authority Kota. The appeal filed by Panchyat Samiti Ladpura was accepted by the RAA vide its order dated 9. 4. 1990 and the judgment & decree of the Assistant Collector dated 7. 1. 1985 (Annexure-4) was set-aside and the case was remanded back to the trial Court with a direction to decide the same afresh in accordance with law after giving full opportunity to the parties to defend their respective case. The present petitioner filed a separate appeal before the RAA against the order dt. 7. 1. 1985 (Annexure-4) of the Assistant Collector which was dismissed on 9. 8. 1995, against which the petitioner had preferred an appeal before the Board of Revenue which too was dismissed on 23. 11. 995 (Annexure-7) as against which the petitioner has come up before this Court by way of instant writ petition. From the perusal of judgment dt. 23. 11. 1995 of the Board of Revenue, it is apparent that the petitioner was given full opportunity to contest the appeal but he did not appear before the trial Court by not filing any written statement setting up his defence. I have heard Mr. Sumitra Goyal, learned GA for the State as well as Mr. N. K. Maloo, learned counsel for respondent Nos. 5 & 6 at length and examined the relevant documents on the record, judgments of the RAA as well as the Board of Revenue. Mr. Maloo, learned counsel appearing on behalf of respondent Nos. 5 and 6 has contended that without challenging the impugned-judgment and decree of the trial Court by not filing the written statement before the trial Court for which the petitioner had sufficient opportunity of hearing, it was not open to the petitioner to agitate the said questions either before the courts below or before this Court by way of instant writ petition. Moreover, the questions which have been raised by the petitioner are disputed questions of fact which require due appreciation of evidence and it is not the province of this Court to go into the said questions in exercise of its jurisdiction under Article 226 of the Constitution of India. Prima-facie, I am of the view that it is not the case of the petitioner that he was not given an opportunity of hearing and rather he had full opportunity to set up his case in defence. The petitioner apparently having not done so and assuming that he was deprived of fair opportunity of hearing, as to what prevented the petitioner to have initially moved an application under Order 9 Rule 13 CPC for setting aside the impugned order of the trial Court dt. 7. 1. 1985 (Annexure-4) remains un-explained on the record. Contrarily, without moving any application which the law permits him to have done so, the petitioner has now challenged the impugned decision earlier before the Revenue Appellate Authority and thereafter before the Board of Revenue and now before this Court by way of this writ petition. Mr. Maloo, learned counsel representing respondent Nos. 5 & 6 further contended that assuming if the land in question was given for personal cultivation to the petitioner on behalf of the deity as a perpetual minor by the temple, this by itself would not create any legal right in favour of the petitioner muchless any right to continue in its possession. It has been submitted that after resumption of Jagir the land bearing Khasra No. 26 measuring 58 Bighas was duly mutated in the name of the deity which is a perpetual minor and was resumed by the State Government and after its resumption, the deity being a perpetual minor, the khatedari rights were mutated in favour of the idol. In this view of the matter, the idol being the khatedar of the land, the petitioner does not have any right to claim ownership, right, title or interest over the land in dispute. The provisions of the Act of 1955 as well do not permit accrual of any khatedari right on the land which had been mutated in favour of the deity. I am informed by Mr. Maloo, learned counsel appearing for respondent Nos. 5 and 6 that the decree in question which is the subject-matter of challenge has already been executed and in compliance thereof, the possession has already been received by respondent Nos. 6 and 7. The law is very much settled as held by this Court as well as by the Apex Court in numerous decisions that petitioner has no right to agitate the issues involving disputed questions of fact which require appreciation of evidence by way of writ petition under Article 226 of the Constitution of India particularly when he had sufficient opportunity to raise the same earlier before the Revenue Appellate Authority (RAA) and thereafter before the Board of Revenue and both the authorities have concurrently held that the petitioner has no right to claim right, title or interest over the land in dispute.
(3.) AS a result of above discussion, I am of the considered view that the writ petition is mis-conceived and is not maintainable before this Court. The same is accordingly dismissed with costs which I assess as Rs. 1000/ -. .;