Rajasthan High Court: A Division Bench of Sangeet Lodha and Mahendar Kumar Goyal, JJ. dismissed an appeal regarding irregularity of a suit for declaration of land under Sections 88 and 188 of the Rajasthan Tenancy Act, 1955 belonging to a Scheduled Caste member while also finding no illegality in the earlier Single Bench Judgment of the same Court.
In this case, the appellant had filed a suit for declaration and was also seeking correction of the entry in the revenue record in the Court of Sub-Divisional Officer, Sikar. The appellant stated that there was an erroneous entry in the Jamabandi as neither the defendant 2 was in possession nor he was sold any land. The suit was eventually decreed by the Court of Sub-Divisional Officer. The appeal against it was subsequently rejected first by the Revenue Appellate Authority and then by the Board of Revenue. But later on, the District Collector allowed the application of the defendants setting aside the previous judgment. This was appealed against in the High Court in which a Single Bench upheld the Judgment, but then an intra-court appeal was preferred.
The counsel for the appellant R.K. Agarwal contended that the reference made under Section 82 or under Section 232 of the Rajasthan Tenancy Act, 1955 was not maintainable in absence of any public element involved. He also asserted that there was an inordinate delay of about 19 years in making the reference which was fatal. He also stated that since there was no transfer of the land in question, as stipulated under the Transfer of Property Act, 1882, by a member of Scheduled Castes/Scheduled Tribes in favour of a non-member, the judgment of Court of Sub-Divisional Officer could not have been set aside.
The counsel for the defendant R.P. Singh contended that the pleadings of the appellant have been self-contradictory, first that the land exists in two different places and again that there was no sale between the two. The counsel further contended that it is apparent that the judgment of the Sub-Divisional Officer was obtained by the appellant playing fraud and collusion, which was accepted by the Revenue Authorities as well as by the learned Single Judge of this Court and thus it cannot be sustained. Lastly, the learned Senior Counsel contended that the Court cannot restore the order of the Court of Sub-Divisional Officer which, per-se, was illegal and the Court would not like to restore an illegal order. He, therefore, prayed that the special appeal to be dismissed.
The Court observed that the appellant had consistently taken inconsistent pleas such as the stand that he was in the possession of the land; and that the land was not in two parts. Therefore, the Court opined that the appellant has come with a dishonest plea with regard to his possession over the disputed land and so his contention with regard to possession over half of the land, had no merit.
The Court also accepted the findings of the Revenue Authorities as well as by the learned Single Judge that the previous judgment of Sub-Divisional Officer obtained was a fraudulent one. The Court also remarked that there is no limitation prescribed under Section 82 of the Act to make reference although it has to be exercised within a reasonable time. Also, the Court found no illegality in an order dated passed by the Board of Revenue in 2001. The Court further relied on Pandey Oraon v. Ram Chander Sahu, 1992 Supp (2) SCC 77 and analysed the word ‘transfer’.
At last, the Court said that the judgment that was obtained by playing fraud, cannot be saved by applying the principle of the merger. They opined that the law will take its own course and no direction in this regard was warranted from the Court. For these reasons, the appeal was dismissed. [Vidhyadhar Sunda v. State of Rajasthan, 2020 SCC OnLine Raj 76, decided on 16-01-2020]
