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Judgment
The present writ petition has been filed by the petitioner against the impugned order dated 20.11.2020 passed by the Board of Revenue for Rajasthan
by which the appeal filed by the petitioners has been dismissed, so also the judgment dated 17.04.2017 passed by Settlement Officer cum Revenue
Appellate Authority, Udaipur and judgment and decree dated 07.05.1997 passed by Dy. Collector, Girwa, Udaipur whereby, the khatedari land of
Araji No. 4445/3624 measuring 0.2450 hectare has been declared in the name of respondents No. 3 to 5.
Counsel for the petitioners submits that a civil suit was filed by the respondent no.3, 4 & 5 in which defendant Moda S/o Ratta was impleaded as party
respondent and petitioners were not party in the said suit for declaration of land. Dy. Collector, Girwa heard the plaintiffs and declared the khatedari
of land of Araji No. 4445/3624 measuring 0.2450 hectare in the name of respondents No. 3 to 5. It is submitted that initially the land was allotted to the
petitioners' father Rataji in Samvat 1829 and when the petitioners came to know about the order dated 07.05.1997, they filed an appeal before the
Revenue Appellate authority. It is argued that Araji No. 4445/3624 measuring 0.2450 hectare was made from Sabik Araji No. 1929 measuring 1 bigha
7 biswa and this araji was recorded in the name of Rataji, father of petitioners. Earlier the allotting authority also vide order dated 20.09.1971
mentioned that the possession of land is with Rataji. However, the first court decided the suit without hearing the petitioners. It is further argued that
the first appellate court did not consider the material on record and dismissed the appeal filed by the petitioners. Similarly, the Board of Revenue
committed an error in dismissing the application filed by the petitioners under Order 41 Rule 2 & 3 read with Order 6 rule 17 & Section 151 CPC so
also appeal filed by the petitioners on the ground that they failed to prove their ownership by way of producing documents before the first appellate
Court. Therefore, this writ petition may be allowed and the impugned orders passed by the revenue courts below may be set aside. Counsel for the
petitioners placed reliance on judgment in the case of North Eastern Railway Administration Vs. Bhagwan Das reported in 2008(2) WLC (SC) Civil
186, S.P. Chengalvaraya Naidu by Lrs Vs. Jagannath through LRS reported in AIR 1994 SC 853 and Damodar Trimbak Tanksale & ors Vs.
Rajendra Shrikrishna Deshmukh & Ors reported in 2007 AIR SCW 4583.
Per contra, learned counsel for the respondent No. 15 & 16 submits that the Dy. Collector, Girwa had called a report from the Tehsildar concerned in
which it has been specifically mentioned that the possession of land was with respondents No. 3, 4 & 5. The said court also sought report from
Patwari and the Patwari in his report dated 22.03.97 mentioned that the land belongs to respondents No. 3, 4 & 5. The learned Dy. Collector
accordingly decreed the suit and declared the land measuring 0.2450 hectare of Araji No. 4445/3624 in the khatedari of plaintiffs. It is argued that the
present petitioners have raised a dispute after almost 15 years of judgment and decree dated 07.05.1997 whereas, the respondents No. 15 & 16 are
having possession and title over the land for last 33 years. It is submitted that the Revenue Appellate Authority in its order has categorically mentioned
that the respondents have proved their possession with documentary evidence and photographs and the petitioners have failed to establish that the land
in question belong to petitioners or there is any possession of petitioners ever on the land in question. The petitioners misleading the Court while
mentioning that Khasra NO. 1929 completely belongs to the petitioners. It is submitted that the revenue authorities have rightly held that the petitioners
have no locus to challenge the allotment of Government land in favour of predecessor of respondents. It is submitted that the concurrent findings
arrived at by the courts below after due consideration of the material on record, cannot be said to be perverse so as to warrant interference by this
court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. So far as the judgment cited by counsel for the petitioners
in the case of North Easter Railway Admn is concerned, the Hon'ble Apex Court considered the fact with regard to non-consideration of pendency of
application under Order 41 rule 27 CPC seeking leave to adduce additional evidence by the High Court. In the case of Ramchandra Sakharam
Mahajan (supra), the trial court and appellate court had not granted opportunity to the plaintiff for adducing secondary evidence by production of a
certified copy of lease deed, which is not the case in hand. Therefore, it is prayed that no interference is called for in the concurrent finding arrived at
by all the revenue courts below and the writ petition may be dismissed.
I have thoughtfully considered the arguments on behalf of the petitioner and have carefully gone through the material on record.
It is evident from the record that with regard to possession and title of petitioners, the revenue courts have concurrently held on the basis of reports
from the Tehsildar as well as concerned Patwari that the petitioners were not able to establish their possession over the land in question from any
documents, therefore, they are not affected or interested parties. The first order was passed by the Dy. Collector, Girwa way back on 07.05.1997,
however, the appeal was filed by the petitioners on 20.06.2012. No explanation has been given by the petitioners with regard to this inordinate delay in
challenging the order dated 07.05.1997. The Board of Revenue also after considering the complete record of the case by way of detailed order, came
to the conclusion that since the petitioners were not able to prove their locus in the form of pleadings, the prayer for amendment of written statement
is not permissible.
The principles for deciding the amendment application have been aptly discussed by the Hon'ble Supreme Court in the case of Chakreshwari
Construction Private Limited Vs. Monohar Lal reported in (2017) 5 SCC 212. Relevant paragraph No. 13 of the aforesaid judgment is reproduced as
under:-
The Principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several
cases. In Revajeetu Builders and Developers V. Narayanaswamy & Sons, : (2009) 10 scc 84 this Court, after examining the entire previous case law
on the subject, culled out the following principle in para 63 of the judgment which reads as under:
On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing
or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bonafide or mala fide;
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the
Court should decline amendment if a fresh such on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only
illustrative and non exhaustive.
Hon'ble Apex Court in the case of Shiv Gopal Sah Vs. Sita Ram Saraugi and Ors. reported in AIR 2007 SC 1478 has held as under:
We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would
expect some explanation, atleast regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned,
does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more
particularly when the claim has, apparently, become barred by time.
It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time.
However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a
reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment
an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have
to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the
defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the
amendment application."" In absence of any material on record, showing that respondents have encroached upon the khatedari land of the petitioners,
in the considered opinion of this court, the concurrent findings arrived at by the revenue courts taking into consideration all the relevant aspects of the
matter, cannot be said to be capricious or perverse and thus, the order impugned does not warrant any interference by this court in exercise of its
supervisory jurisdiction under Article 227 of the Constitution of India. So far as the judgment relied upon by the petitioner in the case of North Eastern
Railway Administration (supra) is concerned, in the said case, the Court had not examined the documents which were part of official record and had
material bearing on the case whereas, in the present case, the application filed by the petitioners under Order 41 Rule 27 CPC taking the documents
the documents filed by the petitioners and same were duly considered by the Board of Revenue. Therefore, the judgment cited by the petitioners is not
applicable on the present set of facts. Similarly, the case of S.P. Chengalvaraya Naidu (supra) is also not applicable on the present case as in the said
case, the plaintiff had obtained the preliminary decree by playing fraud by concealing the registered release deed while filing the suit. In the present
case, the documents submitted by the petitioners were duly considered after allowing the application filed by the petitioners under Order 41 Rule 27
CPC. In the case of Damodar Trimbak Tanksale (supra), the courts had refused to look into the evidence without giving an opportunity to plaintiff to
lay foundation, which had resulted in injustice to plaintiff whereas, in the present case, the documents sought to be relied upon by the petitioners were
duly taken on record after allowing the application filed by the petitioners under Order 41 Rule 27 CPC.
In the result, the petition fails, it is hereby dismissed. Stay petition also stands dismissed.