Rajasthan High Court - Jaipur
Kedar Mal Through Lrs vs . The Board Of Revenue Ajmer & Others on 28 October, 2014
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER Kedar Mal through LRs Vs. The Board of Revenue Ajmer & Others (S.B. Civil Writ Petition No.4625/1994) Date of Order: October 28, 2014. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Ms. Gayatri Rathore, for the petitioners. Mr. Dharmendra Pareek, GC for respondents. BY THE COURT:
This petition under Article 227 of the Constitution of India challenges the order dated 27-10-1993 passed by the Board of Revenue Ajmer (hereinafter `the Board') allowing the appeal filed by Sarpanch Gram Panchayat Niwai and another and setting aside the order dated 31-1-1986 passed by the Revenue Appellate Authority Jaipur (hereinafter `the RAA') in appeals No.19/1984 and 29/1984 while substantially restoring the judgment dated 28-5-1984 passed by the Sub Divisional Officer Nawalgarh District Jhunjhunu (hereinafter `the SDO') dismissing the plaintiff's suit for declaration as khatedar of 12 bigha 6 biswa agricultural land in khasra No.238 village Niwai Tehsil Nawalgarh District Jhunjhunu.
The facts of the case are that the respondent plaintiff Kedar Mal, now deceased and represented through his legal representatives 1/1 to 1/7 (hereinafter `the plaintiff') filed a suit before the SDO on 1-6-1972 regarding khasra No.238 admeasuring 12 bighas 6 biswas in village Niwai stating that his and prior to him that of his ancestors possession of the suit land dated back to several decades. It was stated that the plaintiff's great grand father, one Boyat Ram, had been allotted the land in issue by then jagirdar Bisau. The land was inter alia used for grazing cattle. After promulgation of the Jagirdari and Biswedari Abolition Act, 1952 the land continued in possession of the plaintiff, although the rent thereon had never been paid. It was alleged that subsequently owing to an error in the course of Settlement operations the suit land had been wrongly recorded as charagah, although it was never used as such by the generality of villagers for grazing their cattle, nor was it ever in the control of the Panchayat. It was stated that it was only on receipt of a notice under Section 91 of the Rajasthan Land Revenue Act,1956 (hereinafter `1956 Act') that the plaintiff came to know that the suit land was recorded in revenue records as pasture land. It was therefore prayed that the plaintiff be declared as khatedar of the suit land.
One of the non-government defendant in the suit, one Har Chand resisted it. The other defendants, the Tehsildar Udaipurwati and Gram Panchayat Niwai through its Sarpanch also filed written statement in opposition. It was stated that the suit land was not agricultural land as per revenue record and in fact was used at all times as pasture land. It was submitted that in the circumstances, Section 16 of the Rajasthan Tenancy Act, 1955 (hereinafter `the 1955 Act') negated the plaintiff's case whereunder khatedari rights in respect of pasture land could not be granted. It was prayed that the plaintiff's suit be dismissed.
The SDO framed eight issues. On the evidence before the SDO, the suit was dismissed vide judgment dated 10-3-1980. On appeal, the RAA vide judgment dated 20-12-1982 remanded the matter for reconsideration on the basis of certain fresh documents filed in appeal. Two additional issues were also framed by the RAA for decision by the SDO on readjudication directed following the remand. Yet, vide judgment dated 28-5-1984, the SDO again dismissed the suit filed by the plaintiff. Yet in respect of 10 biswa land, over which the plaintiff had constructed a house, steps for regularisation as abadi were directed to be taken by the SDO.
Two appeals under Section 223 of the 1955 Act followed before the RAA, one by the plaintiff Kedar Mal (29/1984) and the other by the defendant Har Chand (19/1984). The plaintiff submitted that the trial court SDO had erred in failing to consider the oral evidence and additional documents which had been presented and proved and the suit land was wrongly found to be pasture land. The case of defendant Har chand, in his appeal before the RAA was that the suit land having been found to be pasture land as per revenue record for the use of the village community, in no circumstance trespass over such land could be regularised and a direction in that regard by the SDO albeit only in respect of 10 biswas land, over which Kaidar Mal had allegedly constructed a residential house, was wholly illegal and liable to be set aside.
Vide judgment dated 31-1-1986, the Revenue Appellate Authority accepted the plaintiff's appeal (29/1984) and declared him as khatedar of the suit land. The defendant's appeal (19/1984) was dismissed. The Gram Panchayat Niwai and another aggrieved of the judgment dated 31-1-1986 passed by the RAA approached the Board by way of a second appeal.
The Board has on consideration of the matter allowed the appeal against the judgment dated 31-1-1986 passed by the RAA allowing Kaidar Mal's appeal (29/1984) declaring him khatedar of suit land. The Board has also in the process set aside the SDO's direction in his order dated 28-5-1984 to the extent that 10 Biswas of suit land over which the plaintiff had built a residential house be regularised.
Heard learned counsel for the parties Ms. Gayatri Rathore on behalf of the plaintiff-petitioner, Mr. Dharmendra Pareek, on behalf of defendant- respondent and perused the Board's impugned order dated 27-10-1993.
From the record of the case it is evident that the plaintiff Kedar Mal had been unable to discharge his burden and produce any evidence of probative worth to the effect that his predecessors were granted the suit land by the erstwhile Jagirdar Bisau by way of Patta or that rent had ever been paid qua the suit land. Ex.P-32, a photo copy of the patta purportedly issued by the erstwhile jagirdar Bisau to a predecessor of Kedar Mal was faint, quite illegible and not the original. No reliance could be placed on such an illegible photo copy of the purported patta. Further Kedar Mal had not been able to prove payment of rent either by his predecessors or by himself as no copy of rental receipts were produced before the courts below. Tenancy is a form of contract and the plaintiff had not been able to prove such a contract by any admissible evidence.
The question that remains is whether the suit land in issue was pasture land. Ex.P-1, a decision of Nayab Tehsildar recommending Kedar Mal's case as a trespasser for regularisation, Ex.P-3 and P-4, notices under Section 91 of the 1956 Act, Ex.P-5 letter of Sarpanch Niwai to Tehsildar seeking his assistance to remove trespassers on the suit land, and Ex.P-29, P-30 and P-31 to the same effect all commutatively pointed to the fact that the land over which khatedari rights were claimed by the plaintiff was consistently recorded in revenue records as pasture land. The suit land was thus indeed pasture land, as also evident from the various documents relied upon by Gram Panchayat before the SDO including Ex.D-1, D-2 and D-4. Similarly Ex.D-9 and D-11 clearly proved that Section 91 proceedings were initiated against the plaintiff as a trespasser over pasture land.
In the circumstances, there is no warrant to interfere with the conclusion of the Board that even though the plaintiff appeared to be in possession of the suit land, his status could not evolve from that of a rank trespasser to one of a khatedar. Section 16 of the 1955 Act prohibits grant of khatedari rights over pasture land. The suit for declaration of khatedari rights filed by the plaintiff in the circumstances was liable to fail. The RAA had erred in decreeing the plaintiff's suit and declaring him to be a khatedar of land recorded in revenue records as pasture land. The Board by allowing the Panchayat's appeal thereagainst has rectified it, and dismissed the plaintiff's suit. Consequently, I find no force in the writ petition. It is, therefore, dismissed.
Counsel for the petitioner Ms. Rathore, has emphatically submitted that the plaintiff-petitioner is a poor person and in the event the order passed by the Board were to be upheld even with regard to setting aside of the direction for regularisation of 10 biswas land, over which the plaintiff constructed residential house, by the SDO in his order dated 28-5-1984, the petitioner would suffer great irreparable injury in being rendered homeless and a destitute. Be as it may, a writ court cannot issue a direction contrary to provisions of Section 16 of the 1955 Act prohibiting conferment of khatedari rights over pasture land. The prayer of counsel for the petitioner therefore cannot be accepted.
However the petitioner would be free to move an application before the State Government requiring it to consider converting ten biswas of pasture land in issue into abadi and thereafter, in the event of conversion as per extant rules, to further consider regularisation of petitioner's possession over 10 biswas of land in issue over which the plaintiff has constructed a residential house and has been living for decades. But, I would hasten to add that the aforesaid liberty to file a representation/ application to the State Government is not a recognition of any legal right inhering in the plaintiff. The representation made/ application filed by the petitioner shall be decided in the lawful discretion of the competent authority in accordance with law.
The writ petition accordingly stands dismissed.
(Alok Sharma),J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.