WR

IN THE BOARD OF REVENUE FOR RAJASTHAN, AJMER

Appeal No.2295/2012/TA/Jaipur :

Ramsahai Meena alias Ramsi S/o Shri Sheobux, by caste Meena,

R/o Village Khatiura alias Kalyanpura, Tehsil Sanganer, District Jaipur.
… Appellant.
Versus

1. Durgawati W/o Shri Anandilal, by caste Brahman,

R/o Plot No. 18/34, Gandhinagar, Ratlam (Madhya Pradesh).
2. State of Rajasthan, through Tehsildar Sanganer.
3. Rajasthan Housing Board, through Commissioner,
Rajasthan Housing Board,, Head Office "Aavasan Bhawan",
Jyoti Nagar, Jaipur.
… Respondents.
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D.B. (Camp: Jaipur)
Shri Satish Chand Kaushik, Member
Dr. Shamsuddin Khan, Member
Present :
Shri Sanjay Sharma : counsel for the appellant.
None present : on behalf of respondents.
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Dated : 09.9.2016
JUDGMENT

This second appeal has been preferred under section 224 of

the Rajasthan Tenancy Act, 1955 (hereinafter to be called "the Act")
against the judgment & decree dated 05.3.2012 passed by learned Revenue
Appellate Authority, Jaipur in appeal No.405/2010.

2. In this case, a suit for declaration was filed by Ramsahai

Meena alias Ramsi against Virdi Chand S/o Chunni Lal in respect of the
land bearing old khasra no. 343 present khasra no. 574, 575, 576 and
524/1216 measuring 0.69 hectare situated at Village Khatipura alias
Kalyanpura Tehsil Sanganer. The plaintiff-appellant claimed that he is in
possession of land in question since Svt. 2018 and has been owner of the
land by adverse possession and he is having right to get his name entered
into revenue record as tenant. During the pendency of the suit, Virdi
Chand was died and thereafter the name of Anandilal was inserted as
adopted son of Virdi Chand. However, Anandilal also has been died and
now Durgawati, widow of Anandilal has been inserted as respondent
herein. When the proceedings were pending before the learned S.D.O.,
application under Order 7 Rule 11 was moved before the learned S.D.O. on
the ground that the land in question has been acquired by the Rajasthan
Housing Board and the possession of the land has been taken by the
Housing Board, as such, the land is not the agricultural land and the suit is
barred by law. It was requested that the suit has to be dismissed as being
barred by law under Order 7 Rule 11 CPC. After hearing the arguments of
both the parties, learned Assistant Collector, Jaipur-I vide his order dated
15.11.2010 accepted the application under Order 7 Rule 11 and dismissed
the suit of the plaintiff. The learned Assistant Collector held that the
proceeding for acquisition of the land was started as early as in 1992 and
the award has been passed. The plaintiff was having right to plead his
interest and ownership before the Land Acquisition Officer, but he
miserably failed. The relief claimed in the suit cannot be granted by this
court and as such the suit is barred by law. Being aggrieved with the order
of the learned Assistant Collector, Jaipur, the plaintiff filed the first appeal
before the learned R.A.A., Jaipur which was entered as appeal no.
405/2010/223/RT Act. After hearing both the parties, the learned R.A.A.
vide his order dated 05.3.2012 dismissed the appeal and confirmed the
order of the learned Assistant Collector, Jaipur-I dated 15.11.2010. The
learned appellate authority mentioned that the appellant is not denying the
acquisition but he is asking for the declaration of rights in his favour for
compensation. The appellant has also moved the application under section
18 of the Land Acquisition Act for reference. Although the Housing Board
has not made the reference, no such evidence has been produced before the
court. The plaintiff-appellant is claiming his interest in land in dispute for
the purpose of compensation and for that purpose, he is asking declaration.
In such a circumstance, he has to apply before the Authorised Officer under
the relevant provision of Land Acquisition Act. The learned counsel for
respondent presented the judicial pronouncement RRT 2007(1) page 3. In
that case, the Hon'ble Revenue Board decided that if the land has been
acquired for public purpose, then no khatedari rights can be provided and if
there is any dispute regarding compensation, then it is required that the

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party should apply before the Land Acquisition Officer for compensation
and get the matter referred before the competent civil court for the relief
asked for. If there is any dispute in respect of title, then the case has to be
filed under section 30 and 31 of the Land Acquisition Act in civil court and
as such, the appeal was dismissed.

3. We have heard learned counsel for the appellant and perused

the record.

4. The learned counsel for the appellant argued that both the
learned lower courts have failed to appreciate the relevant provisions of
law. They failed to appreciate the fact that the land for which the suit has
been filed, is agricultural land and no civil court can decide the dispute
regarding title or possession of the revenue land. If land has been acquired,
then also the parties are having right to file the suit for declaration of their
rights before the learned revenue court. In the case of Munna Devi Vs.
Smt. Manbhar 2012(2) RRD page 432, it was specifically held that even
after acquisition of land, revenue court can determine the right and share of
the parties to get the compensation. The appellant had share in the land
acquisitioned or not, has also to be examined by the revenue court. As
such, the dismissal of the suit or appeal under Order 7 Rule 11 is erroneous.
In the matter of Ganpat Lal & ors. Vs. State of Rajasthan 2010(1) DNJ
(Raj.) 191, the Hon'ble Rajasthan High Court held that the land was
acquired by the Rajasthan Housing Board; a suit was filed by the
petitioners which was dismissed under Order 7 Rule 11 on the ground that
notice under section 50 Rajasthan Housing Board Act, 1970 was not given.
The Hon'ble High Court held that petitioners are not challenging any action
of Housing Board regarding acquisition, but they are asking for the relief
for declaration as khatedar-tenant and looking into the nature of lis, notice
under section 50 was not necessary. As such, the petition was allowed and
matter was remanded back to decide it on merit. The learned counsel for
the appellant also argued that in the matter of 2010(2) DNJ Rajasthan page
776, it was specifically held that the civil court is having no right to decide
the suit for declaration and permanent injunction relating to agricultural
land under sections 207, 88 and 188 of the Rajasthan Tenancy Act, 1955.
The khatedari rights on the basis of adverse possession can be declared by

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only the revenue court and the suit is triable in respect of agricultural land
only in revenue court and not in civil court. The learned counsel referred
the judicial pronouncement AIR 2010 Rajasthan page 12 Abdul Fazal Vs.
M/s S.J. Marble Mines and argued that at the time of rejection of plaint,
only averments made into the plaint have to be seen. The leaned lower
courts failed to appreciate this legal requirement also. Other legal
pronouncement Teja Ram Vs. Beerbal Ram 2004 WLC Rajasthan UC 391
was referred and it was argued that only the statement made in the plaint
has to be seen. If there is no pleading in the application that suit is barred
by any law, then application has to be rejected. The learned counsel argued
that in this case, the application under Order 7 Rule 11 has not disclosed
any ground upon which the suit was barred by law and when the suit is not
barred by law, then it cannot be dismissed. It was also argued that the
Land Acquisition Officer or the civil court is having no right to decide the
share of the parties. Only revenue court can determine the right and share
of the parties. In this case, the relief asked for can be decided only by the
revenue court. As such, the order of the learned Assistant Collector dated
15.11.2010 and that of the learned R.A.A. dated 05.3.2012 are erroneous
and liable to be rejected. The matter has to be referred for fresh
consideration on merit before the learned trial court.

5. After hearing the arguments of the learned counsel and going

through the matter, the question for consideration before this Board is
whether a suit filed after the acquisition of the land for determination of
plaintiff's tenancy right for getting compensation is maintainable or not?
We are of the considered opinion that rejection of the plaint under Order 7
Rule 11 in this case is not proper. The Land Acquisition Officer is having
no right to determine the share or decide the rights of the parties under
sections 88 and 188 of the Rajasthan Tenancy Act. This power is only with
the revenue courts. When the parties not challenging the acquisition but
only asking for determination of their shares, this suit is maintainable as
held by the Hon'ble Board in the case of 2012(2) RRT 1431. It is the
established principle that for the public purpose, land can be acquired under
the Land Acquisition Act, 1894. Under section 4 the proceeding for the
acquisition will be started, under section 5 objections have to be taken,
under section 6 after considering the objections- appropriate decisions have

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to be taken and thereafter under section 9 notice has to be issued. When
once the notification has been issued for the acquisition, then the
acquisition proceedings cannot be challenged and their finality has to be
assumed. But so far the determination of rights is concerned, the right to
get compensation has to be decided by the court competent to determine
their share and rights. In a series of judgments, it has been held that cases
which arise because of the acquisition cannot be challenged before the civil
court. Land was acquired after following the procedure under Land
Acquisition Act. In such a case, civil court has no jurisdiction to question
the acquisition proceedings. As such, no injunction can be granted against
the acquisition. The Hon'ble Supreme Court specifically held it in 1995
DNJ (SC) 310 State of Bihar Vs. Dhirendra Kumar & ors. As such, it is
the established law that acquisition proceeding cannot be challenged; but so
far determination of right to get compensation is concerned, only revenue
court is competent to decide the rights of the parties who are having right to
get compensation. As such, we are of the considered opinion that the
matter may be remanded back to the learned trial court. In the result, the
appeal is accepted and the order of learned Assistant Collector, Jaipur-I
dated 15.11.2010 and that of learned Revenue Appellate Authority, Jaipur
dated 05.3.2012 are hereby quashed. The matter is remanded back to the
learned trial court. The registry is directed to send the files to the
concerned officials without any delay. The appeal is disposed of
accordingly.

Pronounced in open court.

(DR. SHAMSUDDIN KHAN) (SATISH CHAND KAUSHIK)

Member Member

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