Subhash Chand and Others vs Board of Revenue and Others

Mohammad Rafiq, J.—Shri S.N. Shah appears for the contesting respondent No. 4. Heard learned counsel for the parties.

Shri Pawan Pareek, learned counsel for the petitioners has cited the Full Bench judgment of this Court in Suraja Ram vs. State of Rajasthan-RRD 1995 page 76 and division bench of this Court in Birji vs. Board of Revenue-RRD 1979 page 294 to argue that in the facts of this case, the order directing payment of security would be appropriate interim order rather than appointing receiver because the petitioners have been in possession of the disputed land for last four decades. Entire land was mutated by Tehsildar way back in 1969 and appeal filed thereagainst by the contesting respondent was dismissed in 1970. It is argued that since the appeal before the Revenue Appellate Authority was not against a decree but against an interim order on application for temporary injunction, therefore, the cross objection filed by respondent was not maintainable.

Shri S.N. Shah, learned counsel for the respondent cited the judgment of Maharaj Jagat Singh Vs. Lt. Col. Sawai Bhawani Singh and Others, and Kasturi Bai and Others Vs. Anguri Chaudhary, and argued that since the petitioners had admitted in written statement filed in another suit that the disputed land was an ancestral land and that the respondent had share in it, therefore, possession of one co-sharer has to be treated as possession of all co-sharers in law and on that analogy, it cannot be accepted that petitioners were in exclusive possession of the land. It is also submitted that Tehsildar has on 15.9.2010 taken possession of the land, therefore now no interim order can be passed by this Court and that if petitioners are allowed to remain in possession of the land, it is apprehended that they might alienate the land because they have already sold part of the land by carving out two plots in the size of 500 sq. yards each. It is submitted that in view of provisions of Order 43 Rule 2, cross objection was maintainable even in an appeal against the interim order.

Having regard to the facts of the case, especially the fact that petitioners prima facie appear to be in possession of the land for a sufficient long time and that the respondent could not establish their actual possession, the impugned orders are quashed and set aside. In view of larger bench decision of this Court in Surja Ram, it is considered appropriate to direct the petitioners to pay security rather than appointing receiver. Petitioners are directed to deposit a sum of Rs. 25,000/- per annum with Tehsildar, Jhunjhunu, who shall keep the said amount in a separate FDR account with nationalised bank for one year (which will renew every year thereafter till any other is passed by the trial court). The amount shall be liable to be paid to the parties succeeding in the pending revenue suit as per the order passed by the concerned court. In the meantime, petitioners are directed not to alienate or transfer or create any third party interest in respect of the land in dispute.

The writ petition is disposed of accordingly.