Arun Bhansali ORDER
Arun Bhansali, J.
1. This writ petition is directed against the judgments dated 16/4/1979 passed by the S.D.O., Barmer, 29/9/1995 passed by the Revenue Appellate Authority and 2/4/1997 passed by the Board of Revenue, whereby, the suit filed by the petitioners and appeals filed by them were dismissed respectively. Further, order dated 30/9/1997 dismissing the review petition filed by the petitioners before the Board of Revenue has also been challenged.
2. The plaintiff Badiya filed a suit under Sections 88 and 188 of the Rajasthan Tenancy Act, 1955 ('the Act, 1955') on 29/8/1973 inter alia seeking a declaration regarding ownership of land situated at village Shiv, correction in the revenue record and injunction against the respondents from interfering in his possession and not to allot the land to anyone else. Whereafter, the suit was amended and respondent Nos. 3 and 4, Jagmal Singh and Mishra Ram, were impleaded as parties to the suit and cancellation of allotment made in their names was sought. The amended plaint was filed on 13/2/1974. It was claimed in the suit that the land comprised in khasra Nos. 557, 717, 776 and 690 was in possession of the plaintiff and was standing in his name in the revenue record. It was also claimed that on account of repeated drought in village Shiv, the plaintiff in Samvat Year 2024 took his livestock and went to Gujarat on account of which the Patwari collusively made a report that plaintiff had gone to Pakistan and based on that report, the Tehsildar, Shiv declared the land as government land, of which the plaintiff was unaware, no notice was given to him nor the notice was affixed on the land. It was claimed that when the plaintiff returned back after three years from Gujarat and started cultivating the land, Patwari objected and threatened dispossession. The plaintiff filed the suit on 1/10/1971, which was rejected for absence of notice under Section 80 CPC and on account of the fact that a case under Section 25A was pending. It was alleged that the allotment made to respondent Nos. 3 and 4 was incorrect and the plaintiff continues to be in possession of the land in question. Based on the said averments, the reliefs as indicated hereinbefore were claimed.
3. Written statement was filed by the State inter alia indicating that as the plaintiff had migrated to Pakistan, after undertaking due process the competent authority under the provisions of Section 63(1)(viii) of the Act by his order dated 14/6/1968 declared the land as government land and the same has been recorded as such in the revenue record. The proceedings were conducted in accordance with the law, now the petitioner has returned back from Pakistan and wants to grab the land. The possession of the plaintiff was denied and it was indicated that the land in question was in possession of the allottees. It was prayed that the suit be dismissed.
4. On behalf of the defendant initially a written statement contesting the suit was filed by Mishra Ram, whereafter application was filed inter alia claiming that as the land is in dispute, he may be allotted another land.
5. On behalf of Jagmal Singh, written statement was filed claiming that he was in possession of the land and, therefore, the suit was liable to be dismissed. In additional pleas, it was submitted that as the plaintiff has only sought declaration without consequential relief of possession, the suit was not maintainable and was liable to be dismissed.
6. The S.D.O. framed five issues including issues pertaining to the fact as to whether the plaintiff did not go to Pakistan and whether for not seeking consequential relief of possession the suit was not maintainable. The S.D.O. by his impugned judgment came to the conclusion that the plaintiff has not challenged the order dated 14/6/1968 passed under Section