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Judgment
HON'BLE MR. JUSTICE ANAND SHARMA
By way of the present writ petition, the petitioners have challenged the judgment and decree dated 20.04.1987 passed by the Board of Revenue, Rajasthan, Ajmer (hereinafter to be referred as ‘the Board of Revenue’), whereby the second appeal preferred by the original plaintiffs was allowed and the judgments dated 01.08.1977 passed by the Assistant Collector, Court No. 2, Bundi (hereinafter to be referred as ‘the Assistant Collector’) and dated 22.11.1979 passed by the Revenue Appellate Authority, Kota (hereinafter to be referred as ‘the RAA’), dismissing the suit of the plaintiffs, were set aside and a decree for dispossession was passed.
The case of the petitioners, as pleaded, is that late Shri Karim Khan, the original plaintiff, instituted a suit under Section 183 of the Rajasthan Tenancy Act, 1955 (for short, “the Act of 1955”) before the Assistant Collector, Bundi, claiming possession over land comprised in Khasra No.404/3 measuring 3 Bighas 18 Biswas and Khasra No.606/3 measuring 5 Bighas 3 Biswas, total measuring 9 Bighas 1 Biswa. It was pleaded that the said land had been purchased by him from Deva son of Gopal through a registered sale deed dated 09.08.1957 and possession thereof had also been delivered to him. According to the plaintiff, however, Modu, father of the present petitioners, did not permit him to cultivate the land.
The suit was contested by Modu, who asserted that he was in actual physical and cultivatory possession of the land in question. The Assistant Collector, upon consideration of the material on record, dismissed the suit vide judgment dated 01.08.1977. The appeal preferred by the plaintiff was also dismissed by the RAA vide judgment dated 22.11.1979. During the pendency of the proceedings, the original plaintiff expired and his legal representatives were brought on record. They preferred a second appeal before the Board of Revenue, which, vide judgment and decree dated 20.04.1987, allowed the appeal, set aside the judgments and decree passed by the courts below and directed dispossession of the petitioners.
The petitioners have challenged the judgment of the Board of Revenue primarily on the ground that the second appeal was not maintainable in the absence of any of the grounds contemplated under Section 224 of the Act of 1955. According to them, the courts below had recorded concurrent findings and no substantial question of law arose for consideration before the Board of Revenue. It was, therefore, contended that the Board of Revenue exceeded its jurisdiction in entertaining the second appeal and interfering with the concurrent findings of fact recorded by the courts below.
It was further contended that the petitioners and their predecessor-in-interest have remained in continuous and uninterrupted possession of the land since 1951 and have also incurred substantial expenditure towards its development. Learned counsel for the petitioners have also urged that Deva, who was impleaded as a defendant in the suit, died during the pendency of the appeal and his legal representatives were not brought on record. It is submitted that this aspect, coupled with the findings recorded by the courts below regarding maintainability of the suit, was not properly considered by the Board of Revenue.
The petitioners have also sought to explain the delay in filing the present writ petition by contending that they were not informed by their counsel about the judgment dated 20.04.1987 and acquired knowledge thereof only in the year 1999 when execution proceedings were initiated and notice was issued by the Assistant Collector, Bundi. According to them, upon obtaining knowledge of the impugned judgment, they obtained certified copies of the relevant proceedings and approached this Court without any deliberate or intentional delay.
The next submission of learned counsel for the petitioners is that the suit itself was not maintainable under Section 183 of the Act of 1955. It is urged that a suit under the said provision can be maintained only against a trespasser or a person in unauthorised occupation. According to the petitioners, the possession of Modu and thereafter of the petitioners was traceable to Deva, who was the original holder of the land. It is submitted that Deva had mortgaged the land in favour of Modu and delivered possession to him and thereafter the land was sold in his favour. Consequently, the possession of the petitioners could not legally be characterised as that of a trespasser. On these premises, the petitioners seek quashing of the judgment and decree dated 20.04.1987 passed by the Board of Revenue and restoration of the judgments dated 01.08.1977 and 22.11.1979 passed by the courts below, whereby the suit instituted by the original plaintiff had been dismissed.
Per contra, learned counsel for the respondents opposed the petition on the ground of gross delay and laches as well as on merits. It was submitted that the judgment of the Board remained unchallenged from 20.04.1987 till 1999 and that the explanation regarding alleged non-communication by counsel was insufficient. Reliance was placed upon the judgment of the Division Bench of this Court in Damodar V. Smt. Sondei, 1986 RRD 51, to contend that the suit under Section 183 was very well maintainable despite the fact that amendment in Section 183 was made during the pendency of the suit.
Having considered the rival submissions and material on record, at the outset, this Court finds that the writ petition suffers from gross delay and laches. The impugned judgment was passed on 20.04.1987, whereas the petitioners claim to have approached this Court only after allegedly acquiring knowledge in May, 1999. The explanation that the Advocate engaged by the petitioners did not communicate the result may explain, at best, the circumstances in which the petitioners claim to have remained unaware of the judgment; it cannot satisfactorily explain why litigation concerning valuable immovable property was not followed by them for nearly twelve years. The petitioners were parties to the proceedings and had admittedly engaged counsel before the Board. A litigant who institutes or contests proceedings concerning valuable rights in immovable property is expected to remain reasonably vigilant regarding the progress and result of such proceedings. 10. The fact that the decree-holder initiated execution proceedings only in 1999 does not confer any right upon the petitioners to have the decree annulled. Delay in execution, by itself, does not extinguish a decree nor does it confer a corresponding substantive right upon the judgment-debtors. The extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India is discretionary and equitable and cannot ordinarily be invoked to reopen a decree which has remained unchallenged for such an inordinate length of time.
Even otherwise, the challenge on merits does not warrant interference. There is no dispute that the jurisdiction of the Board under Section 224 of the Act of 1955 is circumscribed by the statutory grounds contained therein. However, the mere existence of concurrent findings recorded by the courts below does not, by itself, render the Board of Revenue without jurisdiction. The question is whether the Board exercised jurisdiction within the parameters of Section 224 of the Act of 1955. The petitioners have not demonstrated that the Board acted wholly without jurisdiction or exercised a jurisdiction not vested in it. Section 224 of the Act of 1955 undoubtedly prescribes the statutory grounds for second appeal; however, its scheme cannot be mechanically equated with Section 100 of the Code of Civil Procedure. The mere assertion that no “substantial question of law” existed, in the terminology employed under Section 100 CPC, does not by itself establish that the Board lacked jurisdiction under Section 224 of the Act of 1955. The petitioners were required to demonstrate a specific jurisdictional or legal infirmity in the exercise of that statutory power, which they have failed to do. Section 224 of the Act of 1955, insofar as relevant, permits an appeal to the Board from a decree passed in appeal by the Revenue Appellate Authority on the grounds, inter alia,(i) when the decision is contrary to law or to a usage having the force of law; (ii) where some material issue of law or usage having the force of law has not been determined; (iii) in cases where there has been a substantial error or defect in procedure capable of producing an error or defect in the decision on merits; and (iv) in the circumstances when the decision is contrary to the weight of evidence on record.
The alleged mortgage and sale, the genuineness and evidentiary value of the documents, the significance of the faded thumb impression, the legal effect of the revenue entries and the nature of the petitioners' possession were matters arising for consideration before the revenue courts. Merely because the Board arrived at a conclusion different from that of the courts below does not establish a jurisdictional error. The petitioners have not demonstrated that the findings of the Board are based on no evidence or are so perverse that no reasonable authority could have reached them.
The plea concerning the alleged admission of the plaintiff regarding the defendants' khatedari status and the plea that Deva's legal representatives were not substituted also do not persuade this Court. As per record Deva had already sold the land in 1957 and non-impleadment of his legal heirs would not make any material effect over the litigation. These were matters which could and ought to have been urged before the competent appellate forum at the appropriate stage. The petitioners have failed to establish that non-substitution of Deva's legal representatives necessarily rendered the entire appeal incompetent or that the Board was statutorily prohibited from deciding the matter on merits.
The argument raised on behalf of the petitioners that suit was filed by the plaintiff in the year 1960 and at the relevant time as per unamended provisions of Section 183 of the Act of 1955, it could have been filed only against the trespassers, has already been dealt with by Division Bench of this court in the case of Damodar (supra) in following manner:-
“9.We see no force in the above contention as well of Mr. Mehrish. It is no doubt correct that an amendment has been made in Section 183 of the Act on November 27, 1970 while the suit was filed on May 27, 1966. This amendment had come into force when the appeal was pending before the Revenue Appellate Authority. The appellate court was certainly entitled to take note of subsequent change in law. By this change in law neither the plaintifts were seeking any change in relief nor any change in the pleadings. By this amendment in Section 183, defect, if any, for bringing a suit by the plaintiff’s was removed and they had become entitled to bring the suit as being person or persons entitled to eject the trespasser as tenant. The case of Messrs Trojan & Co., (supra) is a case where the plaintif had pleaded that the transaction was not authorised by him and that it had been made in contravention of his instructions. He had claimed compensation on the ground of breach of instructions, he did not in the alternative claim on the ground of failure of consideration, the amount credited by the defendants in the promissory note account and which credit disappeared by reason of the failure of the suit on the promissory note. It was argued before the appellate bench of the High Court that having pleaded one thing, and having led evidence in support of that thing, but later on having forced to admit in the witness-box that the true state of things was different, the plaintiff had disentitled himself to relief as regards these transactions and he cannot be granted the relief that he had not asked for. The High Court negatived this contention on the ground that though the claim for damages in support of a particular transaction may fail, that circumstance was no bar to the making of a direction that the defendant should pay the plaintiff the money actually due in respect of that particular transaction. The Supreme Court did not uphold the above view of the High Court on this point and held that it was well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. It was further observed that without an amendment of the plaint, the Court was not entitled to grant relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case.
10.The facts as mentioned above clearly indicate that in the case before the Supreme Court the plaintiff wanted to make out a case on grounds outside the pleadings of the parties and to ask for a relief for which no prayer was made in the plaint. The situation before us is entirely different. In the case before us the change has been made in the law itself by the legislature and the result of which is that the plaintiffs have been made entitled to bring the suit. Revenue Appellate Authority in these circumstances, was perfectly justified to take note of subsequent change in law and as there was no change in relief nor in any grounds in the plaint as such there was no necessity of any formal amendment. Be that as it may, the change in law was made on November 27, 1970 and the plaintiffs have been held entitled to bring the suit by the Revenue Appellate Authority, Board of Revenue as well as the learned Single Judge and there is hardly any ground or justification in the arguments advanced by Mr. Mehrish. That apart, the object behind putting a restriction on any transfer or sub-lease by a member of Scheduled Caste or Scheduled Tribe to members not belonging to such Scheduled Caste or Scheduled Tribe, is to protect the interest of weaker sections of the society. The appellant being not a member of Scheduled Caste or Scheduled Tribe and as trespasser has already remained into illegal possession for more than two decades and as such also there is no ground or justification for invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.”
Thus, the petitioners have failed on both counts. Firstly, the challenge suffers from gross and unexplained laches. Secondly, even on merits, no patent jurisdictional error, perversity or manifest illegality in the judgment dated 20.04.1987 has been demonstrated. What is sought is essentially a reappraisal of evidence and substitution of the view taken by the Board of Revenue with the view favourable to the petitioners, which is impermissible in the present proceedings. Consequently, this Court finds no justification to exercise its extraordinary or supervisory jurisdiction under Articles 226 and 227 of the Constitution of India.
The writ petition is accordingly dismissed. The judgment and decree dated 20.04.1987 passed by the Board of Revenue, Rajasthan, Ajmer are upheld. The prayer for restoration of the judgments dated 01.08.1977 and 22.11.1979 passed by the courts below is rejected.
Pending applications, if any, stands disposed of.