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Urban Improvement Trust v/s The Board of Revenue for Rajasthan, Ajmer & Others

    Civil Writ Petition Nos. 1224 of 1985, 1223 of 1985

    Decided On, 30 August 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE DALIP SINGH

    For the Appearing Parties: R.K. Mathur with Gaurva Sharma, R.K. Mathur with Gaurva Sharma, Bhanu Pareek, Raghvendra Singh, Advocates.



Judgment Text

Dalip Singh, J.

1. Since both the aforesaid writ petitions have been preferred against the judgment dated 30th December, 1983, whereby the learned Board of Revenue dismissed the appeals preferred by the petitioner, they have been heard together and are being disposed of by this common order.

2. These writ petitions have been preferred by the Urban Improvement Trust, Alwar, aggrieved by the judgment of the learned Board of Revenue dated 30th December, 1983, whereby the appeals filed by the respondents against the decision of the learned Revenue Appellate Authority decreeing the suit filed by the State of Rajasthan and setting aside the judgment and decree dated 28th March, 1972, passed by the learned trial court dismissing the suit filed by the State, was allowed by the learned Board of Revenue and suit filed by the State of Rajasthan came to be dismissed.

3. The suit came to be filed in respect of the land, which was purchased by one Banarsidas on 6th January, 1949 from the erstwhile Biswedar. The predecessor-in-title of the respondent Ramnarain purchased the land by registered sale-deed on 19th February, 1955 from Banarsidas. Thereafter, mutation no. 195 and 125 were opened in favour of the predecessor-in-title of the respondent Ramnarain on 5th September, 1956. It also appears from the record that the nature of the land was also altered to Abadi, as was submitted by the petitioner, which is evident from the Annexure-2 the judgment of the Revenue Appellate Authority, filed by the petitioner.

4.The State Government was of view that as a result of the coming into force of the Rajasthan Zamindari and Biswedari Abolition Act, 1959 (hereinafter referred to as 'the Act of 1959'), the said land vested with the State and therefore, the predecessor-in-title of the respondents Ramnarain was a trespasser. Accordingly, proceedings under Section 91 of the Rajasthan Land Revenue Act, 1956, were initiated against Ramnarain in respect of land in dispute. The said proceedings were dropped by the Tehsildar vide order dated 28th December, 1965. In the meanwhile, the application submitted

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by the deceased Ramnarain, the predecessor-in-title for the respondent, for recording their names in the settlement operation came to be allowed under Order of the Settlement Officer dated 15th January, 1965 and the name of Ramnarain came to be entered in the revenue records, as a result of the aforesaid order dated 15th January, 1965. It appears that as a result of the passing of the order dated 15th January, 1965, the Tehsildar dropped the proceedings under Section 91 of the Land Revenue Act, 1956 for eviction of the trespasser by his order dated 28th December, 1965, which has been filed on record as Annexure-R/2. The said order Annexure-R/2 reads as follows:-

"LANGUAGE"

5. It appears that though the proceedings under Section 91 of the Land Revenue Act came to be dropped by the Tehsildar under Section 91 of the Rajasthan Land Revenue Act, 1956, the State Government decided to file a suit against the predecessor-in-title of the respondent herein, Ramnarain, in respect of the land in dispute. The prayer made in the suit in paragraph 13 of the plaint reads as follows:-

"LANGUAGE"

6. A perusal of the aforesaid goes to show that the suit has been filed by the State for correction of the entries in the revenue record as a consequence of the settlement operation.

7. The respondent Ramnarain filed written-statement giving details and controverting the plaint and inter-alia also taking the objections that it was not open for the State to file a suit for correction of the entries. Apart from other objections, it was stated in Para-5 of the additional pleas that the suit is not maintainable as the land in dispute is in possession of the defendants on which construction has been raised and without seeking the prayer for returning of the possession, the suit is not maintainable.

8. Learned trial court vide judgment dated 28th March, 1972, after considering the entire facts and circumstances and the evidence recorded, dismissed the suit. Learned trial court had framed issues for determination which are as follows:-

"LANGUAGE"

9. Learned trial court arrived at the findings that at the time when Ramnarain purchased property from Banarsidas in the year 1955, there was in existence Kachcha house and compound wall surrounding the land in dispute in which the labour of the respondents were also residing having constructed their Kachcha huts. He therefore, came to the conclusion that the land was not covered by the provisions of the 'Act of 1959' and was within the scope of private properties, as envisaged under the Act. Learned trial court also came to the conclusion that in case, the plaintiff felt that the land continued to vest in the State as a consequence of the applicability of the said Act, the course open for the plaintiff was to proceed in terms of the Section 9 of the 'Act of 1959'. Learned trial court also came to the conclusion that the State had not challenged the decision of the Settlement Officer dated 15th January, 1965, as a consequence of which it had been directed that the land should be recorded in the name of the defendant-respondent Ramnarain and no appeal having been filed against the aforesaid decision of the Settlement Officer dated 15th January, 1965, the said matter became final, as such issue no.1 was decided against the plaintiff.

10. On issue no.2 also, it was categorically held that the land in dispute had not vested with the State and accordingly the said issue was also decided against the plaintiff. Issue no.3 and 4 were decided against the plaintiff. Issue no.5 was not pressed by the defendant. Further issue no.6 was decided in favour of the defendants and against the plaintiff that the suit in its present form was not maintainable without seeking consequential relief. Issue no. 7 was also decided against the plaintiff and ultimately the suit was dismissed by the learned trial court. Against the dismissal of the suit, the plaintiff preferred appeals before the Revenue Appellate Authority and the Revenue Appellate Authority taking note of the averments made in the plaint, allowed the appeals though the judgment was not passed dealing with each of the issues separately.

11. Learned Revenue Appellate Authority came to the conclusion after having gone through the Para - 4, 7 and 8 of the plaint in fact, the suit was one for seeking possession along with the declaration and therefore, the suit was maintainable and accordingly, vide judgment dated 6th June, 1977 appeals came to be decreed in favour of the State. The defendant being dissatisfied by the judgment of the learned Revenue Appellate Authority, preferred appeals before the learned Board of Revenue. It appears from the averments made in the writ petition that after the decision of the learned Revenue Appellate Authority, State of Rajasthan by an order dated 15th June, 1981 transferred the land to the Urban Improvement Trust, Alwar, and the entries in the revenue record came to be made in favour of the Urban Improvement Trust, Alwar. The petitioner Urban Improvement Trust, Alwar was not impleaded as a party in the proceedings before the learned Board of Revenue. The matter proceeded before the learned Board of Revenue and the appeals filed by the defendants came to be allowed by the learned Board of Revenue vide judgment dated Annexure-7 dated 30th December, 1983 despite being contested by the State of Rajasthan. The learned Board of Revenue was of the opinion that on reading of the plaint, it was evident that the plaintiff had not sought the consequential relief and therefore, the suit was barred on the principles of Section 34 of Specific Relief Act, 1963, as no suit for mere declaration was maintainable and in the opinion of the Board of Revenue, the possession being with the defendants and the plaintiff not having sought the consequential relief of possession was not entitled to a mere declaratory decree for declaration of the correction of entries. Learned Board of Revenue also came to the conclusion that as a consequence of the sale in favour of the Banarsidas by the erstwhile Zamindar on 6th January, 1949 and the subsequent sale by the Banarsidas in favour of the Ramnarain on 19th February, 1955, before coming into force of the 'Act of 1959', the land was not covered under the provisions of the said Act and there was no question of vesting of the land in favour of the State as a consequence of promulgation of the aforesaid Act of 1959 which came into force on 15th November, 1959.

12. Being aggrieved by the judgment of the learned Board of Revenue, the Urban Improvement Trust, Alwar has preferred this writ petition, though the State of Rajasthan has not challenged the said decisions.

13. Learned Senior Counsel Mr. R.K. Mathur appearing on behalf of the petitioner Urban Improvement Trust, Alwar, at the outset contended that the judgment of the Board of Revenue deserves to be set aside as after the year 1981, the land was mutated in favour of the U.I.T. consequent upon transfer by the State of Rajasthan to Urban Improvement Trust and therefore, the Urban Improvement Trust ought to have been impleaded as party to the appeals before the learned Board of Revenue. Since Urban Improvement Trust was not impleaded as party before the learned Board of Revenue, the judgment against the Urban Improvement Trust deserves to be set aside.

14. It was further contended by the learned counsel that as a result of coming into force of the 'Act of 1959', the land stood vested in the State by operation of law as the land was incapable of being cultivated and since the land was not in the Khudkasht of the Zamindar on the date of the coming into force of the Act. Learned counsel reiterated, on the basis of the judgment of the learned Revenue Appellate Authority that a complete reading of the plaint goes to show that in fact, the land was in the possession of the State as a consequence of the operation of the law as stated in Para 4 of the plaint, which was relied upon by the learned Revenue Appellate Authority as a consequence of the vesting and therefore, as a consequence thereof, learned Board of Revenue committed an error in dismissing the appeals on the basis of the principles of Section 34 of the Specific Relief Act, 1963.

15. Learned counsel Mr. Mathur also contended that the suit for mere correction of entries was maintainable without seeking consequential relief under Section 88 of the Rajasthan Tenancy Act, 1955.

16. Learned Senior Counsel Mr. R.K. Agarwal appearing for the respondents submitted that as per the provisions and the scheme of Rajasthan Zamindari and Biswedari Abolition Act, 1959, the said Act came into force w.e.f. 15th November, 1959 in accordance with the notification dated 3rd November, 1959 issued in exercise of powers conferred by Section 4 of the said Act of 1959. It was submitted that on the basis of the applicability of the Act and more particularly Section 5 thereof w.e.f. the date of the applicability of the Act, rights of the Zamindar including the right, title and interest of the Zamindar and any person claiming through him in such estate including land if cultivable, waste or barren ceased and stood vested in the State Government free from all encumbrances. However, the exception to Section 5 was provided under Section 6 of the Act. Section 6 of the Act reads as follows:-

"6.Private properties of a Zamindar or Biswedar.-

(1) Notwithstanding anything contained in Sec.5:-

(a)all house-sites purchased by the Zamindar or Biswedar or by his predecessor-in-interest or by any other person for valuable consideration,

(b)all places of worships or wells situated in such house-sites as are mentioned in clause (a) and in Khudkasht land belonging to and held by the Zamindar or Biswedar or any other person at the date of vesting,

(c)all private houses and all nohras or enclosures attached thereto, provided that such nohras or enclosures are in continuous possession of the Zamindar or Biswedar since the first day of January, 1953.

(d)all land covered by such places of worship, wells, houses and nohras or enclosures, and

(e)all trees belonging to the Zamindar or Biswedar or any other person and standing on house sites mentioned in clause (a) and on Khudkasht land,

shall continue to belong to and be held by such Zamindar or Biswedar or other person:

Provided that nothing contained in this sub-section shall affect such rights of the public in respect of the places of worship and well as they were enjoying on the date immediately preceding the date of vesting.

(2) Notwithstanding as aforesaid-

(i)all groves wherever situated and recorded in the annual registers before the date of vesting as belonging to and being held by the Zamindar or Biswedar or other person and the land under such groves shall be deemed to be settled with him by the State Government on such terms and conditions as it may determine, and

(ii)all tanks, ponds and embankments belonging to and held by the Zamindar or Biswedar or any other person-

(a) which are situate on Khudkasht land or on any other land not being a village site, and

(b) in which no other person has any right of irrigation.

Shall continue to belong to and be held by the Zamindar, Biswedar or other person to whom they actually belong:

Provided that if the bed of any such tank, pond or embankment is under the personal cultivation of the Zamindar, Biswedar or other person, the land under such tank, pond or embankment shall be deemed to be settled with him by the State Government on such terms and conditions as it may determine.

(Emphasis supplied)

17. He further submitted that Section 7 further made it clear that only transfers made after 1st day of January, 1953 were not to be recognized.

18. On the basis of conjoint reading of Section 5, 6 and 7, it was submitted by Mr. R.K. Agarwal that the transfers made by the erstwhile Zamindar in favour of Banarsidas by sale-deed dated 6th January, 1949, was saved on account of the provisions contained in Section 6 and 7 of the Act. Moreover it was submitted by the learned counsel that Sub-section 2(b) of Section 5 provides for transfer of waste and barren land as well. And therefore, the sale made by the Zamindar prior 1st January, 1953, on 6th January, 1949 was saved and the estate of Zamindar to the extent of the land of the petitioner which stood sold on 6th January, 1949 could not have vested with the State on the promulgation and coming into force of the Act of 1959 on 15th November, 1959. It was also submitted by the learned counsel Mr. Agarwal that by virtue of the provisions contained in Section 34 of the Specific Relief Act and relying upon the judgment of the Hon'ble Supreme Court in the case of Mehar Chand Das v. Lal Babu Siddique and Ors., reported in AIR 2007 Supreme Court 1499 that a mere suit for declaration without claiming the relief of possession was not tenable. Accordingly, he submitted that the learned Board of Revenue was justified in setting aside the judgment of the learned Revenue Appellate Authority in dismissing the suit and allowing the appeal filed by the legal representatives of the deceased Ramnarain.

19. I have given my thoughtful consideration to the rival submissions.

20. So far the provisions of the Act are concerned, Section 5, 6 and 7 merely provides that it is only on the coming into force of the Act that the land as described under the Act would vest with the State free from all encumbrances. However, Section 6 provide the exception read with Section 7 of the Act to the provisions of Section 5. Section 6 of the Act clearly provides that notwithstanding anything contained in Section 5 all house-sites purchased by the Zamindar or Biswedar or by his predecessor-in-interest or by any other person for valuable consideration shall continue to belong to and be held by such Zamindar or Biswedar or other person. Therefore, I find force in the submission of Mr. Agarwal that as a consequence of the sale-deed for valuable consideration executed by the Zamindar on 6th January, 1949 in favour of Banarsidar of the land in dispute was excluded and was exempted from the purview of the Act of 1959 by virtue of the non-obstantive claim in Section 6. This is further fortified in Section 7 which clearly provides that it is only sales and transfers made on or after 1st January, 1953 which were not recognized, whereas the sale by the Biswedar in favour of Banarsidar of the site/land in question was of 6th January, 1949. Moreover as held by the Tehsildar in his order dated 28th December, 1965, quoted here-in-above that there was construction standing on the land of shops with boundary wall. Thus, it was a house-site as referred in Section 6.

21. Notwithstanding the fact that the sale by Banarsidas in favour of the respondent Ramnarain was made on 19th February, 1955 since the title of Banarsidas predecessor-in-title of the respondent had become perfect on 6th January, 1949 in the land in dispute by virtue of the sale-deed dated 6th January, 1949, the land stood outside purview of the Act, 1959 as a consequence of the sale on 6th January, 1949 executed by the Zamindar in favour of the predecessor-in-title of the respondent, namely Banarsidas.

22. Accordingly, the entries made in the settlement operations by virtue of the order Annexure-R/2 passed in the year 1965 result in droping of the proceedings under Section 91 of the Land Revenue Act against the respondents cannot be found fault with. The necessary entires made as a consequence thereof also do not call for any interference. However, there is still a hurdle so far as the petitioner is concerned. The learned Board of Revenue has rightly dismissed the suit filed by the petitioner State of Rajasthan taking in view the totality of the statement made in the plaint as has been quoted here-in-above. The prayer made in the plaint clearly shows that apart from seeking a declaration of the correction of entries the plaintiffs have not sought any consequential relief, as a result thereof in accordance with the provisions contained in the proviso to Section 34 of the Specific Relief Act, 1963, the suit was liable to fail, which provides that:-

'No court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."

23. In the present case, it has come specifically that the land in dispute was in the possession of the respondents who had already raised construction on the land in dispute and even at the time of sale made in the year 1949, constructions on the land were in existence. The land was in the possession of the defendants and proceedings for removal of trespass under Section 91 of the Rajasthan Land Revenue Act, 1956, though started against the defendants had been dropped vide order dated 28th December, 1965 quoted above. It was thus, incumbent upon the plaintiff to have sought a further relief of decree for possession of the land and principles of Section 34, proviso would be applicable to the facts and circumstance and in accordance with the judgment of the Hon'ble Supreme Court in the case of Mehar chand (supra). The suit filed by the plaintiff petitioner was therefore, liable to be dismissed.

24. So far as the contention of the petitioner that they were not impleaded as party to the appeal before the learned Board of Revenue by the defendants against the judgment of the Revenue Appellate Authority dated 6th June, 1977, suffice it to say that the appeal was filed by predecessor-in-title of the respondents Ramnarain deceased against the allowing of the appeal by the Revenue Appellate Authority in favour of the State of Rajasthan. It was incumbent upon the State of Rajasthan which had transferred the land to Urban Improvement Trust petitioner to have brought this fact to the notice of the Board of Revenue by giving an application under Order 22 Rule 10A of CPC, as this was a fact within the special knowledge of the State which was a party before the Board of Revenue in the appeal as a respondent and represented by a counsel also was contesting the appeal. It could not come to the knowledge of the respondent herein that the land had been transferred by the State to the UIT. In case, the State did not disclose the fact about the pendency of the litigation to the UIT, the respondent defendant can not be held liable unless the defendant, who was the appellant acquired knowledge of the transfer and creation of interest in favour of the UIT by the State. Be that as it may, State of Rajasthan had contested the matter before the Board of Revenue on merits and no prejudice was caused to the Urban Improvement Trust petitioner, as it could not claim any better title or right in the land which was the subject matter of the litigation than what the State enjoyed or claimed.

25. Accordingly, there is no merit in these writ petitions. Both the writ petitions are accordingly dismissed.

26. No order as to costs.

Petition dismissed.
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