- Bookmark
- Share
- CaseIQ
Saukhan v. State Of Rajasthan & Others
Judgment Summary (A.K. Mathur, J.)
Factual and Procedural Background
These writ petitions were heard together because they raised a common question of law. To exemplify the factual matrix, the Court considered D.B. Civil Writ Petition No. 1786/86 (Saukhan v. State of Rajasthan & Others). The petitioner, a resident of Jaisalmer, filed a revenue suit under section 88 of the Rajasthan Tenancy Act in the Court of Assistant Collector, Pokaran, concerning Khasra No. 101 (160 bigha) in village Dhoorsar. After notice under section 80 of the Code of Civil Procedure, the Assistant Collector, by judgment dated 17 November 1980, decreed the suit and held the petitioner to be Khatedar; the petitioner's name was recorded in the record of rights and a pass-book issued. No appeal was preferred, but the Collector, Jaisalmer, referred the matter to the Board of Revenue under section 232 of the Rajasthan Tenancy Act on the ground that the Assistant Collector had decided the matter on oral evidence without documentary proof. The Board of Revenue set aside the Assistant Collector's decision, concluding that documentary proof of tenancy was missing. The petitioner challenged the Board's order by filing these writ petitions. The State, in its return, supported the Board and stated that the petitioner had not been given any patta nor entered in any revenue record as tenant of the State or Jagirdar.
Legal Issues Presented
- Whether the Collector is competent to make a reference under section 232 of the Rajasthan Tenancy Act, particularly when the Collector was a party before the Assistant Collector.
- Whether the Board of Revenue, in exercise of its powers (including under section 221), could set aside a decree or order passed by a subordinate revenue court.
- Whether the Board committed an error by holding that, in absence of documentary evidence, a decree based on oral evidence should be set aside.
- Whether the amendment to section 232 of the Act (adding the expression "decree") received the assent of the President (challenge raised by counsel).
Arguments of the Parties
Petitioner's Arguments
- The Collector could not make a reference under section 232 of the Rajasthan Tenancy Act; his exercise of that power in this matter was incompetent.
- Even after amendment to section 232, the Collector lacked jurisdiction to make a reference because he had been a party before the Assistant Collector and therefore could not sit in review over an order in which he had been a party.
- The Collector's references were made inconsistently in different cases (allegation of discriminatory practice).
- The amendment to section 232 did not receive the assent of the President (challenge to the validity of the amendment).
- The Board of Revenue erred in holding that an Assistant Collector's decree founded on oral evidence must be set aside merely because documentary evidence was not produced; oral evidence is admissible and can support a decree.
Respondent's (State) Position
- The State filed a return supporting the Board of Revenue's judgment and asserted that the petitioner had not been given any patta nor entered in any revenue record as a tenant of the State or Jagirdar.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Fatehkhan v. State of Rajasthan | Establishes that the Board of Revenue possesses general superintendence (under section 221 of the Rajasthan Tenancy Act) and, in that capacity, can interfere with orders passed by subordinate revenue courts, including setting aside decrees in appropriate cases. | The Court relied on the Division Bench's reasoning in Fatehkhan to conclude that the Board's power of superintendence makes the Collector's competence to make a reference under section 232 of limited relevance; where illegality is apparent, the Board can interfere under section 221. |
| Harchand v. Rajasthan Revenue Board | Illustrates that exercising supervisory/revisional powers can extend to setting aside an illegal decree (example: decree by Divisional Officer set aside under section 12 of the Ordinance). | The Court cited Harchand as authority that the supervisory power extends to setting aside illegal decrees and used it to support the principle that the Board may set aside illegal decisions of subordinate revenue authorities. |
| Karan Singh v. State Of Rajasthan | Distinguishes between 'decree' and 'order' and notes that, in that decision, the expression 'decree' did not appear in section 232; thus, the Collector could not make a reference under the unamended provision. | The Court observed that Karan Singh did not consider section 221; it noted the distinction made there but explained that the controversy was overtaken by the amendment to section 232 which added 'decree', so Karan Singh's reasoning was not decisive for the present matter. |
Court's Reasoning and Analysis
The Court's analysis proceeded in two main parts: (A) the competence of the Collector to make a reference under section 232 and the Board's power to interfere; and (B) the correctness of the Board's approach in rejecting a decree because the petitioner had not produced documentary evidence.
A. Competence of Collector and Board's Supervisory Power
The Court examined the Division Bench authority (Fatehkhan) and the statutory provision conferring superintendence: section 221 of the Rajasthan Tenancy Act (quoted in the opinion). Relying on Fatehkhan and Harchand, the Court held that the Board of Revenue has a general power of superintendence and control over subordinate revenue courts and, in the exercise of that power, can set aside orders or decrees where there is a clear breach of law or where the decree is illegal. The Court emphasized that this supervisory power may extend to setting aside illegal decrees and that it is not rendered ineffective merely because a reference was made by the Collector. The Court also noted the caution that such power should be exercised sparingly and only in extraordinary circumstances.
On that basis the Court concluded that arguments focused on the Collector's competency to make the reference under section 232, or on the procedural question of presidential assent to the amendment to section 232, were of limited relevance for deciding the present petitions; once the Board is seized of a matter and finds an illegality by a subordinate revenue court it can exercise its revisional/supervisory jurisdiction.
B. Admissibility and Sufficiency of Oral Evidence
The Court turned to the Board's substantive conclusion that, because no documentary evidence was produced, the Assistant Collector's decree was invalid. The Court explained statutory definitions under the Evidence Act, 1872 showing that "evidence" includes both oral and documentary evidence and that the law does not prohibit deciding rights on the basis of oral evidence. The Court found that the Board was under a misconception to treat the absence of documentary evidence as a reason to reject all oral evidence and to set aside the decree. The Court observed that oral evidence, if admissible and found credible by the trial court, can support a decree; conversely, the trial court may reject oral evidence if found untruthful or unreliable. The Court also noted that the State, which was a party before the Assistant Collector, had not produced documentary evidence to contest the petitioner's claim.
Given these conclusions, the Court held that the Board's orders demonstrated an apparent error in law by treating absence of documentary evidence as fatal to a decree based on oral testimony.
Holding and Implications
Core Ruling: The writ petitions were allowed. The Court set aside the order of the Board of Revenue dated 4th January 1986 and other orders mentioned in the writ petitions and remanded the matters to the Assistant Collector, Pokaran, for fresh trial.
Direct consequences ordered by the Court:
- The Assistant Collector is directed to permit the parties (both the petitioner and the State) to lead proper evidence — whether oral or documentary — and to decide the matters afresh in accordance with law and the observations contained in the judgment.
- All remanded cases are to be tried afresh by the Assistant Collector-Pokaran and decided in accordance with law and the Court's observations within a period of "sbi months" from the date of the judgment (as stated in the original order).
- The parties were directed to appear before the Assistant Collector on 27th August, 1990. No order as to costs was made. A copy of the order was to be sent to the Assistant Collector for compliance.
The Court also reiterated a cautionary implication: while the Board of Revenue has supervisory and revisional jurisdiction (under section 221), that power should be exercised sparingly and only in extraordinary circumstances. The judgment rectified the Board's approach on admissibility of oral evidence and emphasized that absence of documentary evidence does not automatically invalidate oral testimony admissible under the Evidence Act, 1872.
Note: The summary above is confined strictly to the matters and reasoning expressly contained in the provided opinion.
A.K Mathur, J.:— All these writ petitions mentioned in the Appendix are disposed of by the common order as all the learned counsel have submitted that they involve common question of law, therefore, arguments were heard of the learned counsel on this common question of law and they are disposed of by this judgment.
2. In order to appreciate the controversy involved, the facts of D.B Civil Writ Petition No. 1786/86 Saukhan v. State Of Rajasthan & Others were taken into consideration. Petitioner is a resident of Jaisalmer and he filed a Revenue suit under section 88 of the Rajasthan Tenancy Act in relation to Khasra No. 101 measuring 160 Bigha situated in village Dhoorsar, Tehsil Pokaran, District Jaisalmer after giving notice under section 80 of the Code of Civil Procedure in the Court of Assistant Collector, Pokaran. It is alleged in his suit that the petitioner is in possession of this field since generation as tenant. It is alleged that the petitioner was paying rent of the land to the Ex-Jagirdar. It is alleged that after trial, suit was decreed and the Assistant Collector, Pokaran held that the petitioner is Khatedar of aforesaid land by his judgement dated 17th November, 1980. Thereafter petitioner's name was entered as Khatedar tenant in the record of rights and pass-book to this effect was issued to the petitioner. Petitioner since then started paying the rent. No appeal against this judgment of Assistant Collector was preferred before the Revenue Appellate Authority but the Collector Jaisalmer in exercise of its power under section 232 of the Rajasthan Tenancy Act XXX made the reference to the Board of Revenue on the ground that the learned Assistant Collector, Pokaran had decided the matter on the basis of the oral evidence and no documentary evidence was produced to show the tenancy of the petitioner. The learned Board of Revenue on this reference, after hearing both the parties, came to the conclusion that the Assistant Collector has not correctly decided the matter as no documentary evidence was produced by the petitioner to show that the petitioner at any point of time was entered as a tenant of the then Jagirdar. Aggrieved against the order of the Board of Revenue dated 4.2.1986 the present writ petition has been filed.
3. Return has been filed by the respondent and they have supported the judgment of Board of Revenue. It was stated there in that petitioner has not been given any patta, nor he has been entered in any Revenue record as tenant of the State of Rajasthan or Jagirdar.
4. We have heard learned counsel for the petitioner and State.
5. The submission of learned counsel for the petitioner is that Collector cannot make a Reference under section 232 of the Rajasthan Tenancy Act (here in after to be referred as ‘the Act’). Learned counsel further submitted that even after the amendment of section 232 of the Act the Collector has no jurisdiction to make a reference as he was party before the Assistant Collector in suit. It is alleged that the Collector cannot sit over the order where he him self was party and this is highly improper. It was contended that in some cases the Collector has not made a Reference not withstanding that the cases were decided on the basis of the oral evidence, therefore, thus action is discriminatory. Next it was contended that the amendment under section 232 of Act not received the assent of the President. Lastly it was contended that Board of Revenue has erred in holding that without documentary evidence. Assistant Collector should not have decreed the suit of petitioner on the basis of oral evidence alone.
6. We have heard both the learned counsel and perused the record. So far as the first question regarding the competency of the Collector under section 232 of the Act is concerned, that the Court in Fatehkhan v. State of Rajasthan (1). A similar question came up before Division Bench of this Court in which it was contended that the Collector has no power to take a Reference, under section 232 of the Act where a decree is passed by a Revenue Court. (Though it was un-amended provision of section 232 of the Act, the expression ‘decree’ was not included but the expression ‘decree’ was subsequently added by the Act No. 14 of 1981 published in Rajasthan Gazette Part IV Kh dated 5th October, 1981). The Division Bench after considering the arguments came to the conclusion that under section 221 of the Act, the Board of Revenue has a power of Superintendence and in exercise of that power they can interfere with the order passed by the Assistant Collector x x x x Section 221 of the Rajasthan Tenancy Act reads as under:
“221 Subordination of the Revenue Courts — The General Superintendence and control over all the Revenue Courts shall be vested in, and all such Courts shall be subordinate to the Board; and subject to such superintendence, control and subordination—
(b) all Additional Collectors, Sub-Divisional officers, Assistant Collectors and Tehsildars in a District shall be subordinate to the Collector thereof;
(c) all Assistant Collectors, Tehsildars and Naib-Tehsildars in a subdivision shall be subordinate to the Sub-Divisional Officer thereof; and
(d) all Additional Tehsildars and Naib-Tehsildars in a Tehsil shall be subordinate to the Tehsildar thereof.”
7. The Division Bench observed as under:
“We are, therefore, of the opinion that even in cases where the Collector is not empowered to make reference under section 232 of the Act, or the Board does not have the revisional jurisdiction, the Board is empowered to set aside the orders, if a clear breach of provisions of law comes to its notice, and it considers it expedient to use its power of superintendence and content. Such power extends to setting aside illegal decree also, as is clear from the decision in the case Harchand v. Rajasthan Revenue Board (supra) wherein, decree by the Divisional Officer was set aside in exercise of powers under section 12 of the Ordinance;
Keeping this legal position in mind, it is to be seen whether in the instant case there were extra ordinary circumstances, where the Board should have exercised its power under section 221 of the Act. The perusal of the impugned order discloses that the land in question was “Gochar land, for which Khatedari rights cannot accrue to any body.” The suit was decreed because true facts about the land being “Gochar Land”, and the proceedings under section 91 of the Land Revenue Act having been initiated by the Tehsildar, and the order of ejectment being passed by him, were concealed from the Assistant Collector. Hence, the decision of the Assistant Collector declaring the petitioner Khatedars of the disputed land was illegal. The conduct of the petitioners in concealing the true facts in the plaint and the irresponsibility displayed by the Tehsildar in filing a vague written statement was also an important factor which weighed with the Board to exercise its supervisory jurisdiction. At any rate, the Board had jurisdiction under section 221 of the Act to set aside the illegal decreb of the Assistant Collector. It is of no significance that the order was passed on a reference made by the Collector. In such circumstances when the petitioner are guilty of playing fraud on the court by suppressing material facts and there has been no failure of justice by the impugned order, they cannot ask us to interfere by a writ of certiorari. The Board's order is just and proper.”
8. Therefore, since the Board of Revenue has a power of superintendence, as such the argument that the Collector is not competent to make a Reference under section 232 is of hardly any relevance. Once the Board of Revenue is seized of the matter and it is satisfied that certain illegality has been committed particularly by subordinate Revenue Court, then exercise of its revisional jurisdiction, the Board of Revenue can interfere. But a word of caution has been added by their Lordships that this power is to be exercised sparingly and in extra ordinary circumstances. Therefore, the argument of the learned counsel regarding the competency of the Collector to make a Reference under section 232 of the Act and the question of assent of the President of the amendment in section 232 of the Act is concerned, is not required to be examined in the present case. Suffice it to say that the Board of Revenue has a Revisionai jurisdiction and, if it is satisfied that the order/decree passed by the subordinate Revenue Court is illegal, without jurisdiction or prima facie unjust, than it is always open for the Board of Revenue to interfere in its revisionai jurisdiction. In this view of the matter, the argument of the learned counsel regarding Collector's incompetency and its challenge to the amendment of section 232 of the Act has hardly any relevance. Our attention was also invited to D.B judgment of this Court given in Karan Singh v. State Of Rajasthan (2), but in this case, scope of section 221 of the Act was not conside red. A distinction was made between decree and order and it was pointed out that expression ‘decree’ does not find mention in section 232 of the Act. Therefore, Collector cannot make reference. But the attention of Hon'ble Court was not invited to section 221 of the Act. However this controversy now does not survive in view of amendment of section 232 of the Act whereby decree has been added.
9. The next question is regarding the order passed by the Board of Revenue on the merit. It was contended in all these writ petitions before us, as mentioned in the Appendix to this judgment that the Revenue Board has committed an apparent error in exercise of its jurisdiction by holding that since petitioner has not led any documentary evidence, therefore, the order passed by the Assistant Collector is invalid. The Collector also observed in its order under Reference that no documentary evidence has been led by the petitioner to show their Khatedari rights in the land in question.
10. We have gone through the orders passed by the Board in all the writ petitions and we find that in all the judgments given by the Board they are labouring under the misconception that in absence of documentary evidence, the rights of the parties cannot be adjudicated is wholly incorrect premises. The “evidence” has been defined under the Evidence Act, 1872 (herein after refferred to Act, 1872) which reads as under:
“Evidence” “Evidence means and includes”:—
(1) all statements which the Court permits or requires to be made before if by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidehc;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.”
11. That evidence consistent of two kinds, namely, oral or the documentary evidence is dealt in Chapter IV of the Act, 1872 and the documentary evidence has been mentioned in Chapter V of the Act, 1872. Therefore, it is wrong to say that the matter cannot be decided on the basis of the oral evidence. It is a different matter that the oral evidence led by petitioner may not be accepted by the trial court for good reasons, but to say that no documentary evidence has been led, therefore, all the oral evidence is to be rejected and the decree passed by the competent Revenue court is to be set aside, is wholly erroneous. It is a matter of common experience that in cases of long possession, it is difficult to get a documentary evidence, but if oral evidence is truthful and is admissible under the Act, 1872, then it is wrong to say that since documentary evidence has not been produced, therefore, oral evidence is to be rejected. If the Assistant Collector finds that oral evidence is not truthful, or unreliable, then in that case he may not place reliance on such oral evidence and can reject the suit. But if he finds that oral evidence is a truthful, admissible under the law and is reliable, then in that case, it is always open for the trial court to act upon the oral evidence and decree the suit as the case may be, but unfortunately the learned Board under the misconception that since no documentary evidence has been led, therefore, suit is rejected, has committed an apparent error. We are sorry to say that we do not agree with this approach of the learned Member of the Board of Revenue. At the same time, we regret to say that no documentary evidence has been produced by the State was equally party before the Assistant Collector in suit filed by the petitioner, if there was some documentary evidence available with the State so as to negative the claim of the petitioner, then they could have led the same in evidence in accordance with law, but that has also not been done. Instead of going into this aspect here, we deem it proper that let both the parties may produce a proper evidence at the proper forum so that the issue can be debated objectively in the light of the observations made aforesaid.
12. In the result we allow this writ petition and all the writ petitions mentioned in the Appendix and quash the orders of the Board of Revenue and the judgment passed by Assistant Collector and remand this case back to the Assistant Collector so as to permit the petitioner as well as the State to lead the proper evidence i.e the oral or documentary and let the Assistant Collector may decide the matter afresh in accodance with law. It is brought to our notice that in cares, namely, S.B Civil Writ Petition Nos. 1726/86 Smt. Harmat v. State, (1727/86 Khudhabux v. State of Rajasthan), (1278/86 Deenkhan v. State of Rajasthan and (1729/86 Idanram v. State of Rajasthan) the parties had led documentary evidence. Since we are remanding all the matters for fresh trial for the reasons mentioned above, therefore, it will not be proper to separate these cases from the bunch of these cases and adjudicate on merit.
13. In the result, we allow this writ petition and set aside the order of the Board of Revenue dated 4th January 1986 and other orders mentione in the writ petitions, mentioned in the Appendix, and remand all these cases for the fresh trial to Assistant Collector-Pokaran to decide the matter in accordance with law and observation made above within a period of sbi months from today. The parties shall appear before him on 27th August, 1990. No order as to costs. Copy of this order should be sent to the Assistant Collector, Pokaran, for compliance.
Alert