Can't Upset Concurrent Findings On Facts Unless There Is Any Illegality, Infirmity Or Error Of Jurisdiction: Rajasthan High Court

In Kondiba, the Apex Court observed that High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

Justice Vinit Mathur, while observing that there is no force in the instant writ petition, ordered,

"In view of the discussion made hereinabove, the concurrent findings of fact recorded by the three courts below does not suffer from any infirmity as the same has been recorded after correct appreciation of evidence on record. There is no jurisdictional error in the findings recorded by the courts below which warrant interference by this Court in exercise of its extra ordinary jurisdiction. There is no force in these writ petitions. The same are, therefore, dismissed."

Notably, these writ petitions arise out of the judgment and decree passed by the learned Assistant Collector and Executive Magistrate (HQ), Jodhpur which while decreeing the suit, declared the plaintiff- respondent No.1 as khatedar tenant and ordered that the lagaan be recovered from them and issued a permanent injunction against the defendants and directed them not to interfere in the khatedari land of the plaintiff. The illegal mutation made in favour of the Rajasthan Housing Board and the UIT was cancelled and set aside and the Tehsildar, Jodhpur was directed to enter the name of the plaintiff as khatedar tenant in the revenue records and necessary entries be also made in the land records.

The following issues were framed by Assistant Collector & Executive Magistrate, (HQ), Jodhpur :

"(i) Whether the plaintiff is entitled to khatedari rights on the basis of his possession in the capacity of tenant on the land mentioned in amended plaint situated in village Jodhpur as per the then existing laws of Marwar State and the Rajasthan Tenancy Act,1955?

(ii) Whether the plaintiff is entitled to permanent injunction against the defendants, as the plaintiff is in cultivatory possession of the land as tenant, asami, gair-khatedar for the last 55 years?

(iii) Whether the plaintiff is not entitled to khatedari rights and permanent injunctions as proceedings were initiated against him under Section 91 of The Rajasthan Land Revenue Act, 1956?

(iv) Whether since the land has been acquired as per the provisions of the Land Acquisition Act and the agricultural land has been converted to Abadi land and since the Land Acquisition Proceedings have not been challenged in competent court within time by the plaintiff and the possession being taken by the Rajasthan Housing Board, the revenue court has no jurisdiction to hear this suit?"

Thereafter, the Revenue Appellate Authority, Jodhpur dismissed the appeal preferred by the petitioner–Rajasthan Housing Board which was further challenged by the petitioner before the Board of Revenue, Rajasthan, Ajmer but that second appeal too was dismissed by the Board of Revenue, Rajasthan, Ajmer. Aggrieved of the three orders passed by these courts, the present writ petitions was preferred.

The court held that the land acquisition proceedings initiated for the subject piece of land stood lapsed as after the enactment of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the possession of the land was not taken and no compensation was paid.

The court observed that Revenue Courts have no jurisdiction in the proceedings initiated under the Land Acquisition Act but when the dispute is with regard to the khatedari rights in the land, the Revenue Courts have the jurisdiction to decide the dispute and admittedly in the present case, the suit was filed under Sections 88, 188 and 92(A) of the Rajasthan Tenancy Act, 1955 for the declaration of the Khatedari rights and and permanent injunction. Thus, the petitioner's contention that the trial court had committed jurisdictional error while entertaining the suit of the plaintiffs – respondents, is bereft of merit, added the court.

Further, the court observed that since the khatedari rights were essentially granted by the State as the State is the custodial of the entire land, however, the State had not chosen to challenge the findings recorded by the trial court, also goes to show that in a way the State Government is in agreement with the findings recorded by the trial court which on the face of it are elaborated and reasoned.

In addition to this, the court rejected petitioner's submission that the trial court decided the main suit itself during the pendency of the review petition. In this regard, the court opined that petitioner failed to challenge those proceedings at relevant time and therefore, the same cannot be of any advantage to the petitioner at this stage and on this ground, the order passed by the trial court cannot be interfered with.

The counsel for the petitioner argued that all the three courts below committed illegality while exercising their jurisdiction and declaring the plaintiff - private respondents as khatedar of the land in dispute which was duly acquired as per the procedure laid down under the Land Acquisition Act, 1894.

He submitted that the paper possession was handed over to the petitioner and the mutation was also made in its favour. Since the land being an Abadi land, therefore, on the day when the suit was filed, the land in dispute was not an agricultural land, he added. However, he submitted that despite this apparent lack of jurisdiction, the trial court exercised the jurisdiction which was not vested in it and decreed the suit resulted into grave injustice to the petitioner. Furthermore, the Rajasthan Housing Board is a Statutory body and was deprived of valuable land by such unscrupulous persons causing loss to the public at large, he added.

The counsel for the respondents submitted that all the four issues framed before the trial court were exhaustively dealt with by the trial court while taking into consideration the documents produced before it and after examining the records, recorded a finding of fact in favour of the plaintiff – respondents. There is no infirmity in the findings recorded before the trial court. He added that the respondents were in possession of the land prior to the year 1955 and, therefore, it is not a case for allotment of the land but it was a case for declaration of the khatedari rights of the land which was already in possession of the plaintiffs – respondents prior to 1955.

The counsel for the petitioner includes Mr. P.C. Sharma. The counsels for the respondents include Mr. P.P. Choudhary, Sr. Advocate Mr. J.L. Purohit, Sr. Advocate Mr. Pankaj Sharma, AAG assisted by Mr. Rishi Soni Mr. Shashank Joshi Mr. Lalit Kumar Mr. Rajeev Purohit Mr. D.S. Beniwal.

Case Title: Rajasthan Housing Board through Dy. Housing Commissioner & Resident Engineer v. Legal Representatives of deceased plaintiff Mani Ram

Citation: 2022 LiveLaw (Raj) 101

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