Judgment:
N.P. Gupta, J.
1. This appeal seeks to challenge the judgment of the learned Single Judge dt. 06.07.2000 dismissing the writ petition. The appellant is unsuccessful defendant, who has lost all through, right from the learned trial Court till before the learned Single Judge.
2. The submission made before us, for assailing the impugned judgments is, that suit was filed on 15.05.1992, while as found by the learned trial Court, that settlement operations were under taken in the yer 1979, and in view of the provisions of Schedule III of the Rajasthan Tenancy Act, even the suit under Section 183 could be filed within 12 years of the arising of the cause of action, and by virtue of Section 63(1) (iv), since the plaintiff was admittedly deprived of possession, and since his right to recover possession got barred by limitation, per force of language of Section 63(i) the interest of the tenant, in his holding or a part thereof as the case may be, stood extinguished. It was also submitted that as a matter of fact the present suit was misconceived, as the suit was required to be filed under Section 187 instead of Section 183, and limitation for the suit under Section 187 was only 3 years from the date of dispossession, and therefore, the provisions of Section 63(1)(iv) are application with greater force. It was then submitted that the plaintiff in the present case had filed application for correction of entry in the year 1987, which was dismissed in default in the year 1991, therefore, the matter of entries in the revenue record stood concluded, as such the present suit could not be entertained from any stand point, and all the Courts below were in error in adjudicating the dispute.
3. Learned Counsel for the respondent, on the other hand, supported the impugned judgment, and contended, that all these submissions are new submissions, and have been raised for the first time before this Court, and had never been raised before any of the Courts below including the learned Single Judge, and they are not open to be raised by the appellant before this Court now. Learned Counsel for the respondent also tried to take us through some of the findings of the learned Courts below.
4. We have heard learned Counsel for the parties, and have considered the submissions, and have also gone through the papers available on record.
5. The necessary facts are, that the private respondent filed a suit under Section 88 and 183 of the Rajasthan Tenancy Act, alleging interalia, that Khasra No. 9 measuring 54 bighas 7 biswas belonged to one Pep Kanwari, who sold it to the plaintiff on 05.08.1975 by registered sale deed. It is then alleged that some years earlier settlement operations were undertaken, in which process Khasra No. 9 was assigned new Khasra No. 236, but area of the land being 54 bighas 7 biswas, was instead entered as 7.07 hectares, which equals to 44 bighas 3 3/4 biswas. Thus, 10 bighas land stood reduced without any cause, and it could not be so entered in the revenue record. It is then alleged, that defendant's land is situated towards the south, which was Khasra No. 10, and in the new settlement that was assigned two numbers being Khasra No. 231 and 230, and Khasra No. 231 was shown to be measuring 3.82 hectares, while Khasra No. 230 was shown to be measuring 4.17 hectares. It is alleged that the plaintiff filed application for correction of entries being Application No. 94/87, but unfortunately that was dismissed as the learned Counsel pleaded no instructions on 20.12.1991. It is alleged, that being motivated by this improper and illegal proceeding, the defendant has taken over possession of 10 bighas towards the south of the land being Khasra No. 236, and declined to return the same to the plaintiff. Then, in para-9 it is pleaded that some 7-8 years ago Khatedari was conferred on the defendants regarding Khasra No. 231 and 230, and since they declined to agree for correction of entries, the application was filed being Application No. 94/87. In those proceedings on 17.07.1991 the Tehsildar had measured the land on spot and submitted inspection report which establishes that 10 bighas land has been encroached by the defendants. It is pleaded that it is on account of the defendant having obtained wrong Patta in collusion with the settlement, some 7-8 years ago, have trespassed over the land now. Consequently, the plaintiff is entitled to get back the possession, and in para-11 cause of action was pleaded to have arisen some 7-8 years ago, when the defendant illegally obtained Khatedari, and taken over possession. Interalia with these proceedings the suit for possession, and declaration was filed.
6. The defendants contested the suit, denied the factum of sale, by pleading that Pep Kanwar was a Pardanasheen lady who had never cultivated, and other facts were denied for want of knowledge. Regarding settlement operations it was pleaded that settlement authorities measured the land on spot, and assigned khasra number, and measurement as found on the spot was recorded. Thus, it was specially pleaded that settlement authorities had not reduced any land rather the land is shown as existed on the spot. Then, regarding Khasra No. 231 and 230 it was pleaded that of course Khasra No. 10 was assigned new Khasra No. 230 and 231. However, whatever area belonged to Khasra No. 10 was only assigned to Khasra No. 231 and 230. It was pleaded that in view of the dismissal of the application No. 94/87 the plaintiff is estopped from filing the present suit. Settlement proceedings were supported to be correct. Then, in para-7 it was denied that the defendants are in possession of excess land, because between Araji No. 9 and 10 there exists old Math, whereon big trees are standing which are 30-40 years old. Thus, pleadings have been taken by the plaintiff only to harass the defendant. It was maintained that the defendants have not encroached upon any portion of the land of the plaintiff. Then, it was also pleaded that the plaintiff never asked the defendants to return any land, and obviously since the defendants had not encroached upon any land there was no occasion for the plaintiff to ask. The factum of existence of old Math, and old trees was repeated good number of times. Then, replying para-11 it was denied that cause of action arose some 7-8 years ago, rather it was maintained that the defendants have not encroached any portion of plaintiff's land, and therefore, no cause of action arises. Then, in additional pleas it was pleaded firstly that the State Government is a necessary party. Then, the factum of existence of Math, and old trees to be there since life time of Pep Kanwar was reiterated, with pleading that Pep Kanwar's husband had died 50 years ago, and she was not cultivating personally. The defendant related his possession to the existence of Math itself. The plea of estoppel was also taken, and it was pleaded that the suit is barred by time.
7. It is on these pleadings that the learned S.D.O. found that it is established that the defendant is in possession of 10 bighas of excess land, and it is not clear as to since when he is in such possession, and what is the nature of the possession. However, it was found that it is not established that the Math exists for the last 50-60 years rather even according to the defendant's witness D.W. 2 Joga Ram it is recent one, and there is nothing to show that the defendant is in possession for the last 40-50 years, and the plea of adverse possession is not established. Various other findings were also recorded regarding merits of the suit, and the suit was decreed. It is obvious that this decree was upheld as noticed above all through.
8. Learned Single Judge at page-3 of the order has reproduced the concurrent findings recorded by the three Courts below.
9. In this background coming to the submission of the learned Counsel for the appellant, at the outset it may be observed firstly that, the submission proceeds on the assumption about the findings of the Courts below including that of learned Single Judge to be wrong, and also with the assumption that the defendant's adverse possession continued for the last more than 12 years. We are afraid the assumption is misplaced, and rather stands negatived by the findings noticed above, and the quoted by the learned Single Judge. Obviously since 12 years have not expired, to debar the plaintiff from maintaining the suit under Section 183, the provisions of Section 63(1)(iv) are at all not attracted.
10. So far as the contention about the suit being required to be filed under Section 187 is concerned, that aspect has not been agitated by the appellant anywhere so far, and has been raised for the first time before us only, even though such ground is not taken in the memo of appeal. In our view, if the ground had been taken before the original Court, we would have had the advantage of opinion of the authorities below about the scope and purport of Section 187, and the distinction between the suit to be maintained under Section 183 and 187. In absence of that we are not inclined to allow the appellant to raise this contention at this juncture, for the first time.
11. Much was sought to be argued that the settlement operations were undertaken in the year 1979, while the suit is filed in 1992, and thus by itself the suit is barred by time. We find on record that in the year 1979 it appears that the provisional entries were made, and as appears from para-6 of the additional pleas of the written statement that in the year 1979 Kacha Parcha was distributed, to which the plaintiff did not raise any objection, and it is not shown nor is there anything on record to show, as to when the final settlement was made, much less to show that, that was made before expiry of period of limitation of 12 years. Thus, this contention also lacks merit.
12. The net result of the aforesaid discussion is that we do not find any force in the appeal, and the same is, therefore, dismissed. The parties will bear their own costs.