Rajasthan High Court - Jaipur
Ramsahay S/O Gangadhar vs Board Of Revenue on 4 September, 2019
Bench: Chief Justice, Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Special Appeal (Writ) No. 734/2014
1. Ramsahay s/o Gangadhar.
2. Ramdhan s/o Gangadhar
3. Prahlad s/o Gangadhar since died through his legal
representative
3/1. Dhapa w/o Prahlad
3/2. Brijendra s/o Prahlad
3/3. Rajendra s/o Prehlad
3/4. Sampat Bai D/o Prahlad since minor through her
mother Dhapa W/o Prahlad
4. Kailash s/o Gangadhar.
5. Kishore s/o Gangadhar
Sr. No.1 to 5 by caste Nath, resident of Pipalwada Nadi,
Tehsil Bonli, District Sawai Madhopur.
6. Kallu s/o Ramsahay (Since Died) through legal heirs
6/1. Bhoti Devi wife of late Kallu
6/2. Hariom Yogi son of late Kallu
6/3. Phoolbai daughter of late Kallu
6/4. Reema daugther of late Kallu
6/5. Phalu daughter of late Kallu
6/6. Goranti daughter of late Kallu
6/7. Rupanti daughter of late Kallu (Minor) through her
natural guardian mother Bhoti Devi
Sr. No.6/1 to 6/7 by caste Nath, resident of Pipalwada
Nadi, Tehsil Bonli, District Sawai Madhopur.
----Appellants
Versus
1. Board of Revenue through Registrar.
2. The State of Rajasthan through Tehsildar Boli, District
Sawai Madhopur.
3. Additional Collector & Executive Magistrate No.1, Sawai
Madhopur.
4. Revenue Appellate Authority, Sawai Madhopur.
5. Gangaram S/o Gopal.
6. Bajaranga S/o Gopal.
7. Ramphool S/o Gopal.
8. Arjun S/o Gopal
9. Motilala S/o Kalyan.
10. Jagdish S/o Kalyan.
11. Kalyani w/o Kalyan (Since Died) Through her legal Heirs
11/1 Jagdish Son of Kalyan
11/2 Ballu Son of Kalyan
Sr. No. 5 to 11 All by caste Bairwa, r/o Bichehudona,
Tehsil & District Sawai Madhopur.
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----Respondents
For Appellant(s) : Mr. Vijay Choudhary
For Respondent(s) : Mr. Anil Mehta AAG
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE INDERJEET SINGH
Judgment Reserved on : 29/08/2019
Judgment Pronounced on : 04/09/2019
(Per Hon'ble Inderjeet Singh,J)
1. This appeal is directed against the order dated 23.09.2013 passed by the learned Single Judge dismissing the writ petition filed by the appellants-petitioners challenging the orders passed by the Board of Revenue dated 22.02.2012 & 16.05.2011, Revenue Appellate Authority dated 02.08.2002, Assistant Collector & Magistrate, Sawaimadhopur dated 02.02.2002 by which the application filed by father of appellants, namely Gangadhar, under Section 19 of the Rajasthan Tenancy Act,1955 (hereinafter to be referred as the "Act of 1955") was rejected & the concurrent finding of fact recorded by the first revenue authority was concurred even upto the stage of writ petition filed by legal heirs of Gangadhar, i.e. present appellants, being dismissed by the learned Single Judge of this Court.
2. The facts in brief are that one Gangadhar, father of the appellants, filed an application under Section 19 of the Act of 1955 before the Assistant Collector, Sawaimadhopur stating therein that his father Bhonrya was recorded as sub-tenant in the Jamabandi of Samwat 2012 and has been in possession of the disputed land even before the commencement of the Act of 1955. It was also stated in the application that Gopal, father of non-applicants, executed an agreement on 01.01.1977 in favour of Gangadhar (since deceased) (father of present appellants) with regard to the land in dispute; and prayed for recording his name (Gangadhar) as Khatedar in the revenue records. The learned Additional Collector & Magistrate, Sawaimadhopur dismissed the application (Downloaded on 05/09/2019 at 09:29:44 PM) (3 of 7) [SAW-734/2014] vide order dated 02.02.2002 holding that the land in dispute was recorded in the name of father of non-applicants who was a member of Scheduled Tribe and the applicant failed to prove that the disputed land was ever recorded in his name; further claim of the applicant for recording his name in the revenue records on the strength of being sub-tenant and in possession of the disputed land, also did not find favour and the first revenue authority recorded a finding of fact that by virtue of Section 42 of the Act of 1955 no right is conferred to claim khatedari rights over the land belonging to member of Scheduled Caste and Scheduled Tribe.
3. During the interregnum, Gangadhar, father of the appellants died, as such proceedings were taken up at the instance of the appellants to the Revenue Appellate Authority and being aggrieved, they preferred appeal to the Revenue Appellate Authority, which affirming the findings of the first revenue authority, dismissed the appeal vide order dated 02.08.2002, thereafter further appeal to the Board of Revenue at the instance of the appellants met with the same fate of dismissal, thereby affirming the findings of two revenue authorities below vide order dated 16.05.2011, against which review petition filed by the appellants was also rejected.
4. Thus a concurrent finding of fact came to be recorded by the first revenue court that the appellants have no case in their favour of claiming khatedari rights and recording the land in dispute in their favour in the revenue records & such concurrent finding of fact was affirmed by all the revenue courts below & that further became the subject matter of challenge at the instance of the appellants before a Single Judge of this Court in a writ petition. The learned Single Judge after hearing the appellants and on perusal of the impugned orders of the revenue authorities below, upheld the concurrent finding of fact recorded by the three revenue courts below and dismissed the writ petition vide order dated 23.09.2013 & observed as under :-
"After hearing learned counsel for the petitioners, this Court is of the opinion that admittedly the names of ancestors of the respondents was in existence in the revenue record before settlement and they belong to (Downloaded on 05/09/2019 at 09:29:44 PM) (4 of 7) [SAW-734/2014] scheduled caste category, therefore, obviously the names of the respondents were entered in the revenue record but the petitioners are claiming their right for correction in the entry of revenue record on the ground that they were in possession of the land in question being sub- tenant and their names were entered as sub- tenant in the Samwat,2012, therefore, their names may be entered in the revenue record. In the opinion of this Court, all the courts below gave finding that under Section 42 of the Rajasthan Tenancy Act, no person of General category can get declaration or correction in the revenue record for the land belong to scheduled caste category. The petitioners themselves are not disputing the fact that the land in question was earlier entered in the names of ancestors of the respondents and they belong to scheduled caste category, therefore, it cannot be said that any error has been committed by all the revenue courts below while giving concurrent finding that land in question belongs to the respondents and they are scheduled category.
In view of above, the concurrent finding given by all the Courts below with regard to right of the respondents who belong to scheduled caste category does not require any interference by this Court. Therefore, this writ petition is hereby dismissed."
5. It is thus the present appeal on behalf of the appellants challenging all such orders by which concurrent finding came to be recorded that the disputed land being of a person belonging to Scheduled Caste/Tribe, no person of other category is conferred right to have such land entered in his name in the revenue records.
6. Learned counsel for the appellants contended that the name of father of the appellants i.e. Gangadhar was recorded as sub- tenant in the revenue record in Samwat 2012 prior to coming into force the Act of 1955 and as per Section 5(43)(i) sub-tenant is also included in the definition of a tenant.
7. Counsel further submits that a joint reading of the provisions under Section 19 & 46A of the Act of 1955 reveals that all sub- tenants entered in the annual registers at the commencement of this Act as sub-tenants were conferred khatedari rights automatically at the commencement of this Act and by operation (Downloaded on 05/09/2019 at 09:29:44 PM) (5 of 7) [SAW-734/2014] of law became khatedar tenants on 15.10.1955 and introduction of Section 46A was no bar to the accrual of khatedari rights in the land belonging to Scheduled Caste or Scheduled Tribe.
8. Counsel further submits that all the courts lost sight of the fact that the non-petitioners' suit for permanent injunction and application under Section 212 of the Act of 1955 was rejected upto the Board of Revenue and they were instructed not to interfere in the cultivatory possession of the petitioners.
9. Counsel further submits that all the courts below have committed error in ignoring the settled provisions by holding that acceptance of the application would cause violation of Section 42 of the Act of 1955 and in fact there is no such violation as no transfer from a member of scheduled caste or scheduled tribe is going to take place but only the rights of the petitioners already accrued to them at the commencement of the Act of 1955 and illegally entered in the name of the non-petitioners in the revenue records were to be confirmed.
10. Counsel further submits that all the courts below have misinterpreted and misconstrued the provisions of Section 42 of the Act of 1955 and Section 42 was amended by the Rajasthan Tenancy (Second Amendment) Act No.28 of 1956 which came into force on 22nd September,1956 and provided that 'no khatedar tenant being a member of scheduled caste or scheduled tribe shall so transfer his interest of his holding to any person who is not a member of scheduled caste or scheduled tribe and the said amendment is not retrospective, therefore transactions prior thereto between Scheduled Caste, Scheduled Tribes and General Caste are not affected.
11. Learned Additional Advocate General Sh. Anil Mehta, appearing on behalf of the respondents submitted that the appeal filed by the appellants deserves to be dismissed as all the courts below i.e. Additional Collector & Magistrate, Revenue Appellate Authority and the Board of Revenue arrived at a concurrent finding of fact that father of the appellants namely Gangadhar was never recorded as Khatedar of the land in dispute and mere recording of an entry in Samwat 2012 will not confer any title on him.
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12. Counsel further submits that as per the provisions of Section 42 of the Act of 1955 no person of general category can get declaration or correction in the revenue record for the land belonging to Scheduled Caste or Scheduled Tribe.
13. Counsel further submits that concurrent finding of fact has been recorded by the courts below including the learned Single Judge of this Court in favour of the private respondents, therefore no interference is called for by this court at this stage.
14. Heard learned counsel for the parties and perused the material on record.
15. These facts are not disputed that name of forefather of the appellants was never recorded as khatedar of the land in dispute and the forefather of the non-applicant (private respondents herein) admittedly belongs to Scheduled Tribe. It is also not the case of the appellants that they belong to a category of Scheduled Caste or Scheduled Tribe. As such the present appeal filed by the appellants deserves to be dismissed for several reasons. Firstly as per the provisions of Section 19 of the Act of 1955 no khatedari rights can accrue in favour of the appellants; secondly name of forefather of the appellants was never recorded as khatedar in the revenue records whereas name of forefather of the respondents who was member of Scheduled Tribe was recorded as khatedar of the land in dispute in the revenue records. The mere an entry of the name of Gangadhar, father of appellants, as sub- tenant in Samwat 2012 will not create any right in favour of the appellants in view of Section 42 of the Act of 1955. Thirdly Section 46A of the Act of 1955 creates a bar on sub-letting of the land belonging to a Scheduled Caste or Scheduled Tribe to any person who is a not a member of Scheduled Caste or Scheduled Tribe. Fourthly the agreement executed between father of the appellants and father of the respondents on 01.01.1977 shows that the land in dispute belonged to the respondents. Lastly all the revenue courts have recorded concurrent findings of fact in favour of the private respondents and the learned Single Judge of this Court also concurred with the same. Therefore in our considered view no illegality has been committed either by the revenue courts below or by the learned Single Judge in dismissing (Downloaded on 05/09/2019 at 09:29:44 PM) (7 of 7) [SAW-734/2014] the writ petition and affirming the findings recorded by the courts below based on sound appreciation of evidence.
16. In the result, the appeal fails and is hereby dismissed.
(INDERJEET SINGH),J (S. RAVINDRA BHAT),CJ
VIJAY/-
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