Heera vs Isha

(1). This is a second appeal filed under Section 224 of the Rajasthan Tenancy Act 1955 (hereinafter in short to referred as the Act) against the judgment and decree of the Settlement Officer-cum-Revenue Appellate Authority. Sirohi-Camp Jalore dated 4.1.96 passed in appeal No. 18/95 whereby the judgment and decree awarded by the learned trial court in revenue suit No. 9/86 ''Heera vs. Aidan dated 29.7.1995 has been set aside.

(2). Briefly stated, the facts giving rise to the present case are that the plaintiff-appellants filed a revenue suit before the trial Court for declaration against S/Shri Aidan and Isha who are respondents before this Court. It was inter-alia stated in the suit that the suit land was the ancestral land and they were in possession of the suit land since long. Smt. Kesri widow of Deva had no right whatsoever in the suit land and the defendant- respondents are wrongly claiming the suit land and interfering the possession of the plaintiff-appellants on the basis of some sale deed which is said to have been executed by Mst. Kesri Wd./o Deva. In the suit, it was also stated that the registered sale deed dated 13.5.75 and 14.8.80 be cancelled. It was also stated in the suit that in fact the suit land was not sold by Kesri to Aidan, therefore, the defendant-respondents be restrained from interfering in the peaceful possession of the plaintiff- appellants and a declaration be made in favour of the plaintiff with regard to the suit land. The defendant Aidan filed a written statement wherein he admitted the contents of the plaint whereas the defendant Isha denied the averments made in the plaint and it was staled that the suit land was purchased by him from Shri Aidan under a registered sale deed dated 14.8.80. It was also stated that as long as the sale deed in not cancelled by a competent court of jurisdiction, plaintiffs are not competent to file a suit against him. The trial Court on basis of pleadings of the parties, framed four issues including relief. Issue No.1 was with regard to the land in dispute which is situated in village Keriya bearing khasra No. 3047 measuring 26 bighas and 11 biswas in the possession and khatedari of the plaintiff-appellants. The trial Court, on the basis of evidence and documents and particularly in view of a judgment given by the Asstt. Collector, Bhinrnal dated 28.4.81 wherein only Kesri Wd./o Deva was parly, found that in respect of the suit land the matters were previously adjudicated upon, as such, issue No.l was decided in favour of the plaintiffs. Issue No. 2 was with regard to the sale deed executed in favour of the defendant and was with regard to the jurisdiction to cancel the sale deed. The learned trial court in a cursory way, without discussing the merits of the judgment dated 28.4.81, came to the conclusion, that in view of the judgment dated 28.4.81 and since the possession of the plaintiffs over the disputed land was from Svt. 2012, as such, the sale deed executed in favour of the defendant was void and was having no effect. It has further been found regarding this issue that the mutation attested in pursuance of the sale deed is also ab-initio-void. The other issues before the trial Court were not relevant and the trial court on the basis of findings recorded on issue No.1 and 2, decreed the suit vide its judgment and decree dated 29.7.95. The defendant-respondent Isha having felt aggrieved preferred an appeal No. 18/95 before the Settlement Officer-cum- Revenue Appellate Authority, Sirohi Camp : Jalore who vide his judgment and decree dated 4.1.96 set aside the judgment and decree awarded by the learned trial Court and dismissed the suit; hence the present second appeal has been filed by the plaintiff- appellants which has been listed before this Court for final disposal today.

(3). We have heard learned counsel for the parties and perused the material available on record.

(4). In the present matter, the following points require consideration-

Whether the plaintiffs'' suit was liable to be decreed.

What is the effect of the judgment delivered on 28.4.81 Ex. P.1.

Whether the suit has been rightly dismissed by the first appellate court.

(5). Now we propose to examine the points framed by us above in detail.

5.1 Point No.1 : It is to be seen that the plaintiff filed a suit for declaration before the learned trial Court and in the suit, it was intcr-alia stated that the suit land was of their ancestors and it came in their possession subsequently and since last several years they were in possession over the suit land. It is not in dispute before us that initially the suit land was of one Shri Deva and whose wife was Mst. Kesri. The plaintiff's claim is that since Deva died issueless and Kesri had no right in the suit land, as such, they were entitled for the land which was initially of Deva. It is also not in dispute before us that Mst. Kesri sold the suit land to Shri Aidan Singh in the year 1975 and thereafter the suit land was sold in the year 1980 by Shri Aidan to Shri Isha s/o Mota. In the above circumstances, before the learned trial Court, the plaintiffs were required to prove their case on the basis of oral as well as documentary evidence to which they have failed. The plaintiffs could not prove that initially the land was not of Shri Deva whose wife was Mst. Kesri. The plaintiffs further could not prove that they had the land in their possession since long and at least from Svt. 2012 and thereafter, no document worth name to prove possession has been filed except the judgment delivered on 28.4.81 by the Asstt. Collector wherein Mst. Kesri had filed consented written statement and in that case, neither Isha nor Aidan were parties and the fact of sale was also not disclosed by Mst. Kesri. In view of above factual aspect, it is clear that the written statement furnished in the suit filed by the present appellants only against Mst. Kesri was in collusion and the purchasers of the land in dispute were not made parties, then in that circumstance, how the judgment and decree awarded in that suit i.e. dated 28.4.81 can be considered to be binding on the defendants S/Shri Isha and Aidan. Before the learned trial Court, only on the basis of consented written statement which was filed by Shri Aidan wherein possession was admitted of the plaintiffs and on the basis of a judgment dated 28.4.81 where the defendant Shri Isha was not a party has been relied on, it has been relied on and issue has been proved and the decree has been awarded. As has been discussed hereinabove that the important aspect of the matter in the present case was as to whether the plaintiff was able to prove the case either by documentary or oral evidence. If the consented written statement is excluded and the decree awarded in some previous litigation which was not between the same parties is excluded, then there is no material available on record to justify trial Court's passing a decree in favour of the plaintiff-appellants. The trial Court's findings on issue No.2 was also not proper for the reason that the trial Court has given the verdict that the registered sale deed executed in favour of Isha by Aidan is void and is having no effect against the plaintiffs for the reason that since it is not in dispute that Mst. Kesri was the recorded khatedar of the land in dispute and after the death of Shri Deva who was her husband and in the revenue record also, a mutation was attested in her favour and thereafter in favour of the persons who have purchased the land in dispute. Once it is established that a person is a khatedar of the land, then he will always be in a position to dispose off his/her land and his/her rights cannot be questioned. In the present case, on the one hand, Smt. Kesri after the death of her husband in the year 1975 under a registered sale deed sold the land to Shri Aidan and Shri Aidan subsequently has disposed off the land under a registered sale deed in the year 1980 in favour of Isha s/o Mota, then the findings of the learned trial Court cannot be considered to be legal, just and proper wherein it has been found that the sale deed was void-ab-initio. As has been discussed and it is found that the recorded khatedar of the land in dispute has sold the land and the purchaser of the land in dispute was subsequently shown in the revenue record as khatedar of the land, then to say that the sale deeds executed in favour of either Aidan or Isha are void, cannot be considered to be a valid and correct finding on the basis of material available on record. Again the question regarding validity of sale deed can only be determined by the civil Courts, and the revenue Courts are not competent to determine or decide the question regarding the validity of the sale deeds. In the inst. case, the learned trial Court has exceeded the jurisdiction while deciding the issue No.2 in favour of the plaintiff and as such, we are of the view that findings recorded on issue No.2 was also not proper.

In view of above discussions and findings on issues No.1 and 2, there is no hesitation in corning to the conclusion that the plaintiffs were not able to prove their case and the plaintiff's suit was not liable to be decreed.

5.2 Point No.2 : The judgment Ex. P-2 has got no effect against the defendant-respondents for the simple reason that this was a suit between plaintiff and Smt. Kesri. The suit is said to have been filed somewhere in 1980 and prior to filing the suit, the recorded khatedar in the year 1975 had already disposed off the suit land and the second sale was also executed in the year 1980. Once a proper sale-deed is executed and the purchasers of the land in dispute, not been made parties in the suit, then findings in that suit or the judgment and decree awarded in the suit shall not be binding on the persons who were not party in the earlier proceedings held in that suit. Thus, our answer to point No.2 is that the judgment delivered by the learned Asstt. Collector dated 28.4.81 has got no binding effect against the defendant- respondent.

5.3 Point No. 3 : It is to be seen that the learned first appellate Court after discussing the matter in detail has reached the conclusion that the learned trial Court has not correctly disposed off the issues framed and the findings arrived at were also not proper. The reasonings given by the learned first appellate courts appears to be reasonable and proper. The learned first appellate Court has also discussed the effect of the previous judgment dated 28.4.81 wherein the plaintiffs and Mst. Kesri were the parties and Aidan and Isha were not parties. The learned first appellate Court has also found that Mst. Kesri in fact did not disclose the true fact; had there been disclosure of true facts by Mst. Kesri, the decree which has been passed 28.4.81 would not have been passed. The learned first appellate Court also found that she was estopped by her conduct not to file the consented written statement. Merely on the basis of oral evidence when nothing is available on record to prove the possession of the plaintiff over the disputed land, the suit was not liable to be decreed; as such, me learned R.A.A. has rightly dismissed the suit. The learned R.A.A. has discussed the matter issuewise. We do not find any illegality or irregularity in the judgment delivered by him and therefore, we do not find any merit in second appeal also.

In view of our discussions, our answer to point No.3 is that learned R.A.A. has correctly considered the matter and rightly set aside the judgment and decree awarded by the learned trial Court. (6). In view of above discussions and our findings recorded on the points framed by us, there appears to be no merit in this appeal and the same deserves to be dismissed. In the result, the appeal is dismissed.

(7). Pronounced in open Court.