A.K. Mathur, J.
1. These writ petitions mentioned in the Appendix are disposed of 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 fey 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 and Ors. were taken into consideration.
3. 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 judgment dated 17th November 1980. Thereafter petitioner's name was entered as Khatedar tenant in the record of rights and passbook 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.
4. 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.
5. We have heard learned Counsel for the petitioner and State.
6. 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 with standing 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 the Act not received the assent of the President. Lastly it was contended that the 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.
7. 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 1981 RRD 356. 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 Kb 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 Collector, Tehsildars and Naib-Tehsildars in a sub-division 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.
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 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) where in, 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 for ejectment being paseed 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 decree 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 interefere by a writ of certiorari. The Board's order is just and proper.
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 sub-ordinate Revenue Court, then exercise of its revisions 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 amen ment 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 Revisional 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 revisional 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 1978 WLN (Vol. II) 317, but in this case, scope of Section 221 of the Act was not considered. 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. How ever this controversy now does not survive in view of amendment of Section 232 of the Act where by 'decree' has been added.
8. 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.
9. 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 here in after referred 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 it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) All documents produced for the inspection of the Court; such documents are called documentary evidence.
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 be 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.
10. 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 accordance with law.
11. It is brought to our notice that in cases, namely, S.B. Civil Writ Petition Nos. 1726/86 Smt. Harmat v. State and Ors. (1727/86 Khudhabux v. State of Rajasthan and Ors.) (1278/86 Deenkhan v. State of Rajasthan and Ors. and (1729/86 Idanram v. State of Rajasthan and Ors.) 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.
12. In the result, we allow this writ petition and set aside the order of the Board of Revenue dated 4 the January 1986 and other orders mentioned 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 six 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.