Rajasthan High Court - Jodhpur
Mukhtiar vs State & Ors on 5 November, 2009
Author: N P Gupta
Bench: N P Gupta, Govind Mathur
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
SPL. APPL. WRIT No. 332 of 2001
MUKHTIAR
V/S
STATE & ORS.
Date of Judgment : 5.11.2009
PRESENT
HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI GOVIND MATHUR,J.
Mr. SL JAIN, for the appellant / petitioner
Mr. DALIP SINGH RAJVI, for the respondent
BY THE COURT : (PER HON'BLE GUPTA,J.)
This appeal has been filed by the unsuccessful writ petitioner, seeking to challenge the judgment of the learned Single Judge dated 19.3.2001, whereby the writ petition was dismissed, and the orders of the Board of Revenue dated 30.11.1999, Annex.6, and dated 18.4.2000, Annex.8, whereby the reference made under Section 232 of the Rajasthan Tenancy Act was accepted, and review petition was dismissed, have been upheld.
The facts of the case are, that the petitioner Mukhtiar filed the writ petition, alleging inter-alia that one Santa Singh was allotted lands in Kila No.6 to 10 measuring 5 bighas in Murabba No.36 Chak No.21 PS, which lands were mutated in the name of Santa Singh vide mutation dated 30.10.74. Copy of the passbook has been submitted as Annex.1. 2 Santa Singh was recorded as Khatedar, who transferred the land in the name of the petitioner vide registered sale deed dated 1.5.73, copy whereof has been produced as Annex.2. The petitioner claims to be in cultivatory possession of the land since 1973 as Khatedar.
According to the petitioner, the Tehsildar Raisinghnagar submitted an application before the Collector Sriganganagar for setting aside the allotment dated 15.5.67 made in favour of Santa Singh, and consequent mutation and sale, copy of this application has been produced as Annex.3. The petitioner submitted reply on 11.9.1997, Annex.4, and Additional Collector vide order dated 28.8.98, Annex.5, made a reference to the Board of Revenue for setting aside the allotment, mutation and subsequent sale. The petitioner in para 7 has alleged, that this reference was in relation to lands, bearing Kila No. 21 to 25 of Chak No.21 PS of Murabba No.36, while the lands belonging to the petitioner, are comprised in Kila No.6 to 10. The petitioner has further alleged, that Board of Revenue set aside the allotment by accepting reference, without considering the question that the land allotted to Santa Singh was not the land of Gurudwara, referred to by the learned Member of the Board of Revenue in his order, i.e. Kila No.21 to 25. The lands belonging to petitioner and Santa Singh are in Kila No.6 to 10, and not in Kila No.21 to 25. Lands in Kila No.6 to 10 were never in the name of Gurudwara. Thus, the order was claimed to be without jurisdiction, void and perverse. This is produced as Annex.6. The petitioner then filed a review petition, bringing to the notice of the Board of Revenue, that the lands belonging to Gurudwara were in Kila No.21 to 25, whereas lands allotted to 3 Santa Singh were in Kila No.6 to 10, which was not Gurudwara's land. Copy of review petition has been produced as Annex.7, and it is contended, that the Board of Revenue refused to consider the submissions made in the review application, and has dismissed the same on the ground, that points raised in the review petition are the same, which were argued at the time of decision of the reference, and therefore, the review application does not lie. Copy of this order has been produced as Annex.8. With giving these facts, the orders are challenged only on two grounds, first being, that the Board of Revenue specifically mentioned in the orders that the lands belonging to Gurudwara are situated in Kila No.21 to 25, but lands belonging to Santa Singh are situated in Kila No.6 to 10, thus, lands allotted to Santa Singh could not be said to be Gurudwara land, and the lands allotted to Santa Singh were recorded as Sivay Chak in the revenue record. Thus, the Board of Revenue had no jurisdiction to cancel the allotment made in favour of Santa Singh on 15.5.67, on the ground of the land being belonging to Gurudwara. The other ground given is, that the order passed by the Board of Revenue purports to deprive the petitioner from his property without authority of law, and offends Article 300A of the Constitution.
To put it tersely, the whole challenge to the orders of the Board of Revenue, was only on the ground, that the lands belonging to Gurudwara were comprised in Kila No. 21 to 25, while the land allotted to Santa Singh was comprised in Kila No.6 to 10, which was sold to the petitioner, and that allotment could not be canceled, on the ground of the land being belonging to Gurudwara. Then a look at the order-sheets of the file of S.B. shows, that the matter was listed on 4 12.5.2000 for admission, on which day the learned Single Judge expressed the view, that the case is worth remanding, for the reason, that the only question involved in the case is the dispute of identity of land and nothing else. Thus, Shri Dinesh Maheshwari (now an Hon'ble Judge of this Court) was directed to accept notice on behalf of the respondents.
Originally in the writ petition, four persons were impleaded as respondents, being State, Board of Revenue, Additional Collector, and Santa Singh, however, subsequently, vide order dated 14.12.2000, on the application of Guru Nanak Prabandhak Committee, the said committee was impleaded as party respondent, and vide order dated 12.2.2001 Santa Singh was deleted from array of respondents, as he had died, leaving no legal representatives. Then the matter was argued, and ultimately was decided by the same learned Bench, vide judgment dated 19.3.2001, as noticed above.
A reply to the writ petition was filed on behalf of respondent No.1 on 14.9.2000. The stand taken therein was, that it is incorrect to contend that Santa Singh was allotted land. It was pleaded that Santa Singh was Granthi in the Gurudwara, and no allotment could have been made in his name. The stand taken was, that Santa Singh was recorded only as Gair Khatedar, and that too wrongly. Santa Singh was having no transferable right in him, and sale deed dated 1.5.73 is wholly inconsequential, void and non-est. In reply to para 5 it was pleaded, that it seems that the petitioner, although aware of the correct facts is simply seeking to take advantage of some typographical error. In reply to para 6 it was pleaded, that it is pertinent to mention that the petitioner 5 also could not deny the basic facts. Then in para 7 the mention of Kila No. 21 to 25 was pleaded to be typographical and clerical error, instead of mentioning Kila No.6 to 10, however mere technical error cannot over take the substance of the matter. It was pleaded that the petitioner was aware of the fact that the reference was made on account of Santa Singh having procured allotment of the land of Gurudwara, which could not have been allotted. Then in para 8 it was again reiterated that the petitioner is only seeking to take advantage of typographical error. Then while replying the ground again it was pleaded that land of Kila no.6 to 10 was of Gurudwara, Santa Singh has no right over the same, and in Murabba No.36 there were 25 bighas of land, and after enforcement of Rajasthan Tenancy Act, Gram Sevak Mafidars were made the allotment of land in their possession, free of cost, and Gair Khatedari mutations were made in their favour. However the land of Kila No.6 to 10 in this Murabba was Gurudwara land, the same was not allotted to anybody, however an allotment has been made of this land to Santa Singh on 15.5.67, which could not have been done, and thus, the reference has rightly been made, and has rightly been allowed.
A rejoinder was filed by the petitioner, to this reply, contending, that after execution of sale deed by Santa Singh in favour of petitioner, the allotment of land in favour of Santa Singh was canceled by order of the Addl. Collector dated 25.5.87, for violation of Section 13 of the Colonization Act. An appeal was filed by the petitioner, which was allowed, and the case was remanded to the Addl. Collector, for deciding the matter in the light of Section 13A of the Colonization Act. The petitioner deposited an amount of Rs.7500/- under 6 Section 13A on 28.12.89 vide challan Annex.10. However, the Addl. Collector vide order dated 19.4.95, Annex.11, held that the allotment in favour of Santa Singh was made under Section 193 of the Rajasthan Tenancy Act, and therefore, Colonization Act did not apply, he therefore, dropped the proceedings of cancellation of allotment in favour of Santa Singh. Thus, Santa Singh was allotted land as Khatedar vide Annex.11. It was then pleaded, that since allotment was made under Section 193 of Rajasthan Tenancy Act, there was no question of Gair Khatedari; rather it was of Khatedari. It was also pleaded that it is wrong to contend that petitioner is simply seeking to take advantage of typographical error, rather there is no typographical error. The application filed by the Tehsildar was in relation to lands, which were shown in revenue records as Mandir Mafi lands. The kilas shown as Mandir Mafi land were Kila No.21 to 25, and in support of this stand, the petitioner has produced a copy of the Khatoni of Samvat 2012 to 2015 as Annex.12. Then it is pleaded that it is wrong to contend that instead of Kila No.6 to 10, Kila No.21 to 25 were wrongly mentioned. It was maintained that Mandir Mafi land are recorded in Kila No.21 to 25, and there is no question of any typographical error. It was also maintained that it is wrong to contend that land comprised in Kilas No.6 to 10 is Gurudwara land. It is not so recorded.
Another set of reply has been filed on behalf of newly added respondent, being Nanak Gurudwara Prabandhak Committee, and in this reply it is contended, that in Murabba No.36 in Chak No.21 PS the allotments were made by State of Bikaner as Mafidars in Samvat 1992, and Kila No.1 to 8 was allotted to Roda son of Kharga, by caste Chamar. Then Kila 7 No.9 to 15 was allotted as Mafi Nai (Barber). Then Kila No.16 to 20 was allotted as Khati (Carpenter) and Kila No.21 to 25 were allotted as temple. It is then pleaded that since no temple was existing there, but a Gurudwara was there in the said Chak, the name was transferred in the name of Gurudwara, vide order dated 13.4.50, and Shri Jaimel Singh was Granthi on behalf of Gurudwara, to look-after the Gurudwara as well as land. Copy of the Jamabandi has been produced as Annex.R/1. The stand is, that after Jaimel Singh, Santa Singh was appointed as Granthi somewhere in 1956. It is then pleaded that in the year 1959, Kilas No.6 to 10 were shown as land of Mafi Gurudwara. Annex.R/2 has been produced in this regard, which showed that Kila No.1 to 5 were shown to have been allotted to Harnam Singh (Mafi carpenter). Then Kila No.6 to 10 were shown to be Mafi Gurudwara, temporarily cultivated by Wazir Singh. Then Kila No.11 to 17 were in the name of Jamna, temporarily cultivated by Banta. Then Kila No.18 to 25 were recorded in the name of Mafi Kotwal (Chowkidar), temporarily cultivated by Het Ram son of Kashi Ram. It is then pleaded that in the year 1965, on 30.7.65 Santa Singh moved an application before the SDO, submitting that he is the granthi of Gurudwara and Kilas no.6 to 10 command land was of Mafi Gurudwara, and since the government was then abolishing village grams mafi, Khatedari should be given to him. Copy of this application has been produced as Annex.R/3. Then on 4.12.67 the SDO allotted 5 bighas of land to Granthi Santa Singh, copy of order is produced as Annex.R/4. It is submitted that significantly in this Annex.R/4 there is no description of bigha scheme having been mentioned, i.e. only 5 bighas and Murabba number and chak number have been mentioned. Then it is pleaded that Santa Singh moved an application before the SDO 8 Raisinghnagar that for Mafi Gurudwara land he was ready to pay the market value of the land, and even in this application the details of Kila numbers were not given. The case of the answering respondent further is, that the file was pending before the SDO for depositing the remaining amount as per market value, but then Santa Singh never disclosed to have sold the land to the present petitioner. The copies of the order-sheets have been produced as Annex.R/6. It is contended that Santa Singh was never given Khatedari rights of the land comprised in Kila No.6 to 10, Jamabandies have been produced as Annex.R/7 and 8. However, it is then pleaded that the answering respondent was constituted as Committee, and was registered on 28.11.90 vide Annex.R/9, and the answering respondent filed a complaint before the Tehsildar Raisinghnagar, contending that the land on which the present petitioner is having illegal possession and title, which is void-ab-initio, as the land was of deity and could not be transferred. The Tehsildar submitted an application before the Collector for making reference under Section 232 being Annex.3, and accordingly reference was made, and has rightly been allowed. Then certain preliminary objections have been raised by the answering respondent, viz. that the answering respondent was not impleaded as party despite being a necessary party, the other objection raised was, that the petitioner has concealed the material facts from this Court, the petitioner has not averred, that he is not recorded as Khatedar, and thus, he has suppressed the material facts from this Court. Then para-wise reply has also been submitted, contending inter-alia that the land was of Mafi Gurudwara. Santa Singh moved application in which it was clearly stated that the land was in the name of Mafi Gurudwara, and should be 9 allotted to him vide Annex.R/3. Even in the allotment letter, description of the land has not been given, and the respondent has produced Jamabandi right from 1967 to 1990, in which the petitioner as well as Santa Singh was shown as Gair Khatedar. It was also pleaded that the petitioner is in illegal possession. Then the details of the various Kilas, being allotted to different persons were given, and it is pleaded that though initially Kila No.21 to 25 was in the name of the temple, but subsequently at the relevant time it was the mafi grant, under village grant, as defined in Section 5(45) of the Rajasthan Tenancy Act. In the year 1935 most of the land was though reserved for village grant, but the name of the Khatedar was not shown, but in Jamabandi of 1959 the description of the whole land was given, which is produced as Annex.R/10. The details as cataloged in the earlier part of the reply were reiterated. Then it was pleaded, that this is the only land being comprising in Kila No.6 to 10, which was shown as Mafi Gurudwara, which was allotted to Santa Singh, and Santa Singh himself in his application has also shown the land as Mafi Gurudwara land. It was maintained that petitioner never raised this question before the Collector, and before the Board of Revenue, and that, it is only for the first time that the petitioner has raised this question in the revision (review) petition, which has been dismissed. There is no dispute about identity of the land. Parties are ad idem about identity of the land. Then it is pleaded that the learned Member of the Board of Revenue has rightly set aside the allotment made in favour of Santa Singh, and sale deed in favour of petitioner, after considering that the land is of deity, and could not be transferred, Santa Singh was not even a Khatedar when he transferred the land, and mere mentioning 10 of Kila No.21 to 25 hardly makes any difference. The allotment was made without mentioning of Kila numbers, and in Murabba No.36 there was only 5 bighas of land, which was recorded as Mafi Gurudwara made in 1935, and this was so mentioned by Santa Singh in his application, and that, the petitioner is raising unnecessary dispute. Inter-alia with this it was prayed that the writ petition be dismissed.
The petitioner has also then filed an additional affidavit, inter-alia deposing, that the land had been a subject matter of reference before the Addl. Collector in case No.11/83 "State Vs. Santa Singh" under Section 232. This was decided in favour of Santa Singh, copy of the order dated 6.10.94 has been produced as Annex. A. It was alleged that land allotted to Santa Singh was in Kila No.6 to 10, Jamabandi in this regard has been produced as Annex. B and C, for the Samvat Year 2020 to 2023, and 2024 to 2027, respectively. It is then deposed that during settlement operations also the land of Kila No.6 to 10 was shown in slip dated 20.2.77 in name of petitioner, who stepped in the shoes of Santa Singh, having purchased the land, this has been produced as Annex. D. Then latest Jamabandi of 2056 to 2059 was also produced as Annex. E. This is the entire pleading and material available on record.
A look at the order of the Collector, making reference, being Annex.5 shows, that Khatedari rights were
given to village workers, Gram Sevaks, according to Section 193, but then, the land which was in the name of temple or 11 Gurudwara, in that land Khatedari was not granted to pujaris or granthis. Those lands continued in the name of temple or Gurudwara. It was found by the learned Collector, that the land was in the name of Gurudwara, and could be allotted in the name of Gurudwara, but not in the name of any individual person. Before arriving at this conclusion the learned Collector considered the submissions made on behalf of Gurudwara, including the contention that the land of Gurudwara, Masjid or Mandir could not be allotted to anybody, while the contention raised on behalf of the petitioner were also considered, wherein it was contended that land was never Mafi or Mandir or Gurudwara, rather it was a government land and the allotting authority undertook complete inquiry as contemplated by the Rules, and allotments were made on 9.5.67. Sanad has been granted, and mutations have been effected in the revenue records, then the land has been sold by registered sale deed. Then that being found to be violative of the provisions of Colonization Act, action was taken under Section 13A, the petitioner paid the amount and the land was regularized. Thus the present petitioner is continuing as Khatedar, in possession, which cannot be canceled, nor this reference, nor can such allotment be challenged. The other contention raised was, against the allotment made in favour of Santa Singh, no institution and state ever initiated any proceedings, and the allotment order has become final. Still other contention raised was, that proceedings for making reference were earlier initiated, which were dropped vide order dated 6.10.94, therefore, reference should not been made. It is after considering all these submissions that the reference was ordered to be made, vide order Annex.5. 12
The learned Board of Revenue found, that if the land had been recorded in the name of deity, idol or Gurudwara, then no one can acquire Khatedari rights, while in the present case though the land in question was mafi land, and though Santa Singh was a Granthi, but then it was not a personal grant, rather it was religious and charitable grant, Khatedari rights could not be given to him, nor could the land be allotted to him. Likewise, Santa Singh was not entitled to alienate the land to Mukhtiar (the present petitioner). Consequently the reference was accepted, allotment made in favour of the Santa Singh, and subsequent sale made in favour of present petitioner, were found to be non-est, and entries in the record of right's entries were ordered to be corrected.
It is significant to note, that in the reply submitted on behalf of the petitioner to the reference application of the Tehsildar, before the learned Collector
being Annex.4 also, no dispute was raised about identity of the land, on the anvil, as sought to be raised before this Court, being that the land of Gurudwara was Kila No.6 to 10, and the reference application has been made to land comprising of Kila No.21 to 25. That apart it is still more significant to note, that the positive stand was, that the land in question (आर ज जर बहस) was no manner a mafi land of Gurudwara, rather it was a land allotted to Santa Singh. Then in para 5 of the reply it was categorically contended, that the land in question was allotted after completing all necessary proceedings for allotment, and after considering the eligibility of Santa Singh to be allotted land, and revenue record was accordingly mutated. It was also pleaded, that Sanad with respect to land in question has been issued on 13 11.6.93 in name of Santa Singh. Thus, Santa Singh became Khatedar. Of course in this reply, in additional pleas, it was pleaded, that it is wrong to contend that matter did not come to the notice earlier, as, earlier also application for making reference was filed, which was registered as Case No.11/83 "State Vs. Santa Singh" and was dismissed on 6.10.94. Thus the present proceedings are hit by the bar of Section 11 CPC; but concealing these facts, Tehsildar filed this application, which was required to be dismissed.
A look at the order of the learned Single Judge shows, that the only contention raised before him was, that the land in dispute, which was in possession of the petitioner had never been allotted to temple or Gurudwara, as the land purchased from Santa Singh was in comprised in Kila No.6 to 10, likewise the land allotted to the temple or the Gurudwara was compromised in Kila no.21 to 25, thus the entire proceedings stand vitiated. The next contention raised was, that the petitioner had never been served with the show cause notice in the reference, in respect of the land comprising Kila No.6 to 10, purchased from Santa Singh, and the reference was made with respect to land comprising in Kila No.21 to 25, which is entirely a different land, and the petitioner has no concern with the said land. The other objection raised is, that earlier also the Tehsildar had filed an application before the District Collector to make a reference with respect to the same land, which was rejected in 1994, and as that order acquired finality, the second application is not maintainable. The next contention raised was, that the petitioner had deposited a sum of Rs.7300/- to get regularization of the land in view of the amendment made in 14 1984 in the Colonization Act, providing that if the land had been alienated in violation of the provisions of Rajasthan Tenancy Act, the same could be regularized after making certain payment.
On the other hand, the contention raised on behalf of the State was, about mention of Kila No.21 to 25 to be typographical mistake, rather the petitioner knew it very well, and never raised this objection, either before the Collector, or before the Board of Revenue, and after meeting his waterloo before the Board, for the first time in the review petition the ground was taken, which was rejected. Significantly in the review petition also it was not contended that he had raised this issue earlier, nor is it so contended before this Court, that the petitioner had argued it before the Board even at the stage of review. The next contention raised was, that in para 13 of the rejoinder affidavit, the petitioner himself has described the land of temple to be comprised in Chak No.PH 29 Square No.36, though there is no such land. Thus it was demonstrated, that it was only a typographical mistake, and the parties were fully aware of the identification of the land in dispute, and then have gone to trial knowing the actual controversy very well, as such, the petitioner cannot be permitted to succeed on such technicalities, as the matter is required to be decided on the touchstone of doctrine of prejudice. The transaction of allotment of land in favour of Santa Singh, which land belonged to Gurudwara, is void, and the order of Board of Revenue does not require any interference.
The contention raised on behalf of Gurudwara 15 Prabandhak Committee also was, that the Committee has placed reliance on large number of documents, to show that it was the land of Gurudwara, which stood transferred to the petitioner, and that Santa Singh had no land other than the land in dispute, and that the land allotted to Gurudwara was comprising in Kila No. 6 to 10, which had been transferred to the petitioner, and therefore, the transaction itself was unenforceable, and in-executable.
The learned Single Judge has found, that undoubtedly there has been typographical error in the notice given to the petitioner by mentioning Kila No.21 to 25 and not Kila No. 6 to 10. Then it was observed, that the documents on record, including Jamabandies of Samvat Year 2012 to 2015 clearly show, that Kila No. 6, 7 and 8 had been given under Section 193 to one Harnam Singh as a village Kotwal, similarly, Kila No. 9 and 10 had been given to one Madu Barber, and Kila No. 21 to 25 had been shown in the name of temple. Santa Singh filed application on 30.7.65 (Annex.R/4) clearly stating, that Kila No. 6 to 10 was existing in the name of Gurudwara, and Khatedari rights should be granted therein. Similar application was filed by him on 25.6.65, patta was issued on 25.11.67 in the name of Santa Singh, which does not give any description, and simply provides that Khatedari rights were given in the land measuring 5 bighas in Chak No.21 PS, rather it does not speak of Kila numbers at all. It has also been observed, that as the applications had been filed by Santa Singh, as granthi, there had been a case of creating khatedari rights in favour of Gurudwara. This view has been found to be stood fortified by the application of Santa Singh dated 17.7.71 Annex.R/4/5, wherein without making reference to any 16 Kila number, he referred to land of Gurudwara measuirng 5 bigha, and expressed his willingness to deposit the dues etc. He also filed an application on 30.8.72 for the same purpose, wherein again it was clearly stated, that the land belonged to Gurudwara, and on his application, appropriate orders were passed, and the SDO Raisinghnagar ordered recovery of amount as per law in respect of the land measuring 5 bigha situated in Chak No.21 PS Murabba N.36, and in this also there was no mention of Kila numbers at all. It was then considered, that there is a detailed order of competent authority regarding deposit of revenue etc., wherein again no Kila numbers have been given. Then in Jamabandies of year 1966 to 1970 Santa Singh was shown as a tenant of Kila No. 6 to 10, and subsequently name of present petitioner.
With concluding this the learned Single Judge summarized the undisputed position, which emerged, by cataloging in 10 paras, being, that Kila No.6 to 10 had initially been allotted to the Village Kotwal and the Barber, and stood in their names, while Kila No. 21 to 25 had been shown initially in the name of temple. Then after sometime, Kila No. 6 to 10 had been shown in the name of temple, and at subsequent stage the same was ultimately entered in the name of Gurudwara, and applications had persistently been made by Santa Singh for grant of Khatedari rights, wherein he has shown to be Granthi of the Gurudwara, and the revenue record clearly spelled that he was acting for and on behalf of Gurudwara, and not in his individual capacity. It was also found, that while making reference notice was served on the petitioner in respect of the Kila No. 21 to 25 and not Kila No.6 to 10, however, in reply the petitioner did not take a 17 specific stand, that he had nothing to do with Kila No.21 to 25 and had purchased the land of Kila No. 6 to 10 from Santa Singh, this shows, that the petitioner understood the controversy, and filed the reply in respect of the land in dispute. It was also found, that issue of misidentification of the land, has never been raised by the petitioner; and for the fist time it was taken in the review petition, without stating that at the time of hearing the reference, the issue had been raised, and it had never been the case of the petitioner, that Santa Singh had land other than the land in dispute. With this it was noticed, that Santa Singh had already died when notice was issued by the District Collector for making the reference, but still petitioner impleaded him before this Court, without any explanation. Then in review petition, Gurudwara Prabandhak Committee was impleaded as respondent, while Santa Singh was not impleaded; but then while filing the present writ petition, Gurudwara Prabandhak Committee was not impleaded, and Santa Singh was impleaded, though the committee got itself impleaded. Then it was noticed, that the petitioner has not raised the ground of misidentification of the land, and it was for the first time while filing review application, and that too without mentioning in the review application, that such an averment had been agitated before the Board, and that it was never mentioned anywhere in the petition, that the counsel had argued the issue of misidentification. Then regarding rejection of earlier application, it was held, that though this fact was pleaded, but the petitioner had not produced any document before the Courts below, to show that such an order had been passed, nor could he submit, that it was a part of record before the Courts below. It was also noticed, that pleadings in this case had been complete before this Court 18 much earlier, as the rejoinder affidavit was filed on 11.10.2000, and petitioner did not argue this issue before the Board of Revenue at all, and it is on the date of judgment rendered by learned Single Judge, that at the time of hearing, the petitioner filed the copy of the order, and that the only ground raised in the writ petition deals with the question of misidentification of the land. With this, after discussing various case-laws, the learned Single Judge, for reasons given in the order, did not find any merit in the writ petition. It was noticed, that it was argued on behalf of the petitioner, that the land has been allotted to Santa Singh individually under Section 193 of the Tenancy Act, for rendering services as Granthi and therefore, it cannot be treated as that of Gurudwara, but then it was found, that this issue has been agitated for the first time before this Court, as no such averments had been made before the Court below.
Then aggrieved of this order the present appeal has been filed. This appeal came up for admission on 25.4.2001, on which day it was admitted and interim stay was granted, on the condition of depositing of mesne profits, and making the order peremptory. Thereafter the order was modified, however the time for depositing the mesne profits was extended. Be that as it may.
The appeal came up for hearing before us on 28.7.2009, which hearing continued on 30.7.2009 and on that day learned counsel for the appellant prayed for some time to obtain and produce before this Court some more record, to satisfy this Court, that as on the date of the appellant's moving application for allotment, Santa Singh was holding the 19 land of Kila No.6 to 10 or Kila No.21 to 25 in the capacity of Granthi Mafidar. The matter was adjourned for two weeks.
Then the matter came up on 3.11.2009, on which day the arguments were concluded, and judgment was reserved. However, when the judgment was started to be dictated, it was felt, that it would be appropriate that the matter should be heard again on some aspects, therefore, the matter was got listed in the Court today in the category of "TO BE MENTIONED", but then today, at the request of learned counsel for the parties, the matter was reheard at length.
Arguing the appeal, learned counsel for the appellant read to us the documents Annex.1 to 8 as filed by the appellant in the Single Bench. It may be observed, that in the review petition, Annex.7, a specific ground was taken, that in the reply to the application for making reference it was pleaded by the appellant, that land comprised in Kila No.6 to 10 was allotted to Santa Singh in accordance with law on account of land being recorded as Siyav Chak, and that land has been sold by Santa Singh to the petitioner. Thereupon we called upon the learned counsel for the appellant, to kindly point out this stand to be available in the reply Annex.4, and after reading the entire reply, the learned counsel only submitted, that it was pleaded, that land was allotted after completing all proceedings for allotment, and after finding eligibility of Santa Singh. It appears that, that was the only ground raised in course of argument before the learned Board of Revenue while arguing the review petition, and probably the learned counsel for the petitioner may have been snapped like this only. Be that as it may.
20
Then arguing the appeal learned counsel for the appellant made various submissions, (i) that the land was allotted to Santa Singh after following the due process of law, finding Santa Singh to be eligible, Sanad has been issued and Khatedari has been conferred way-back in 1993, as such it was not open to the learned Collector to make a reference.
The second ground taken was, that Santa Singh was a Granthi and allotment was made to him under Section 193 of the Rajasthan Tenancy Act. The third submission made is, that the application for reference is too much belated, as the present application has been filed on 29.11.95 only, whereas the allotment was of 1967. Learned counsel placed reliance on Division Bench judgment of this Court, in State of Rajasthan Vs. Teja & Ors., reported in 2005 (2) WLC 53.
The fourth submission made is, that in view of earlier application filed by Tehsildar for making reference having been rejected vide order dated 6.10.94, on the principle of res-judicata, the present application filed by the Tehsildar could not be entertained, and reference could not be made, much less could it be accepted. Learned counsel in this regard placed reliance on the judgments of Hon'ble Supreme Court, in Vijaybai & Ors. Vs. Shriram Tukaram & Ors., reported in AIR 1999 SC 431 specially para 8, Hope Plantations Ltd. Vs. Taluk Land Board, and in Peermade & Anr. reported in 1999 (5) SCC 590.
Regarding delay, the learned counsel also referred to one Division Bench Judgment of this Court in Chail Singh & 21 Ors. Vs. State of Rajasthan & Ors., decided on 17.4.2008. Then regarding permissibility of allotment of land to granthi under Section 193 of the Rajasthan Tenancy Act, learned counsel relied upon few unreported judgments of this Court, including those in S.B. C.W.P. No.1053/69 Lal Singh Vs. State, decided on 25.11.71, then a photostat copy of the judgment, particulars whereof are not decipherable. The judgment dated 7.9.73 rendered in bunch of 13 writ petitions led by S.B. C.W.P. No.1603/71 Surya Mal Vs. State, the Division Bench judgment dated 15.10.74, in the appeals filed to challenge the aforesaid judgment dated 7.9.73, dismissing the appeals, the judgment dated 26.11.90, rendered in S.B. C.W.P. No.1924/80 Smt.Shila Vs. State, the judgment dated 22.10.91 rendered in S.B. C.W.P. No.1341/82 Ramprakash Vs. State, another judgment in Ratan Singh Vs. State of Raj., reported in 1983 WLN (UC)-1. Yet another judgment in Sawarn Jeet Singh Vs. State of Rajasthan, reported in 2005(10) RDD 4574 was also relied upon.
Learned counsel for the committee relied upon the judgment of this Court in Savda & 6 Ors. Vs. State of Rajasthan & Ors., reported in 1993(2) WLC (Raj.) 122, and submitted, that provisions of Section 11 CPC are not applicable to these proceedings, and therefore, the bar of res-judicata could not be pressed into service.
We have heard learned counsel appearing, and have perused the record. It may be observed that nobody appeared on behalf of the State, as usual. This Court has often come across such incidents, where despite service, the government counsels do not choose to appear, and at times when sum one is called, he chooses to disown the matter, on the ground of it 22 being not related to his department, some times we felt constrained to even call the Addl. Advocate General, but then that only resulted into simply adjournment of the matter, obviously because of the ground, that even Addl. Advocate General is not aware of the matter. Be that as it may.
At the outset we are constrained to observe, that the way in which the matter has been contested, and the way in which contentions were raised at different stages, project a very strange picture.
To start with, we deal with first two contentions together, and would straightway like to observe, that though contentions are purportedly raised to be in the alternative, but a proper comprehension of the two contentions shows, that they are mutually destructive to each other. To elaborate, it is one thing to say, that the allotment was made to Santa Singh after following the due and prescribed procedure, the land being recorded as Siyav chak and finding Santa Singh to be the eligible person to be allotted the land. Then it is entirely contrary thing to say, that Santa Singh was holding the land as a village servant grant Granthi, and on discontinuance of such village services, by virtue of the provisions of Section 193 of the Rajasthan Tenancy Act, Santa Singh was conferred Khatedari rights. The matter does not end here, inasmuch as, a look at Annex.4 shows, that therein a positive stand was taken about the land having been allotted to Santa Singh after following the due process and finding him to be eligible. Then we asked the learned counsel to show the allotment order, and learned counsel made available for our perusal the original of communication dated 15.5.67, addressed 23 by the SDO to Santa Singh, informing that vide order dated 15.5.67, 5 bighas of land in Murabba No.36 Chak No.21 PS has been allotted to him on permanent basis. It is not clear from this, as to which particular Kilas were allotted, and it is also not clear, as to on what basis, and under what provisions of law, the allotment was made, i.e. whether in accordance with the allotment Rules, or under Section 193. Then a look at the documents filed by the Committee-respondent along with its reply, specially Annex.R4/3, 4 and 5 do make it clear, that even according to Santa Singh, the land was of mafi Gurudwara, and he wanted to be conferred Khatedari rights with respect to that land. It is a different story, that in the application also Kila numbers were not given, but then these applications clearly negative the theory of allotment having been made in accordance with rules for allotment, the land being earlier SIVAY CHAK RAKBA RAJ, and after Santa Singh having been found eligible to be allotted the land. Thus, in our view there is no basis for our coming to the conclusion, that allotment was made to Santa Singh as a regular allotment, in accordance with the rules, after following the prescribed procedure, much less after finding Santa Singh to be eligible, and on the ground of the land being available for allotment as SIVAY CHAK RAKBA RAJ. It is again a different story, that this submission has not been made before the Board of Revenue, or in the writ petition, nor even at the time of hearing before the learned Single Judge. Be that as it may.
So far the contention about the land having been allotted under Section 193 is concerned, we may gainfully reproduce the provisions of Section 193 of the Rajasthan Tenancy Act, which read as under:-
24
"193. Disposal of land when services are no longer required- If the Collector declares that the services rendered by a village servant are no longer required such village servant shall become a 'Khatedar tenant' of his village service grant and shall be liable to pay rent accordingly."
In the above background we may observe, that Section 5(45) defines village service grant. Then Section 190, 191 and 192 make provision for rights of such persons, holding village service grant, and consequences of termination of such village services, and in this sequence the above referred Section 193 finds place. The words used in Section 193 being "of his village servant grant" are of great significance, inasmuch as, under Section 193 Khatedari rights can be conferred only with respect to the land, which was the village service grant of the person, who claims to conferment of Khatedari rights, whose services have been terminated, and should be belonging to a specified category of village servants, which may include Ganthi. It is in this view of the matter, that on 30.7.2009 the learned counsel, sensing the queries of the Court, prayed for time to produce before the Court some more record to satisfy this Court, that as on the date of moving application for allotment, Santa Singh was holding the land in the capacity of Granthi mafidar, obviously as the village service grant, but then no such document has been produced, rather the documents produced by the respondents, and referred to above, project an otherwise picture. The matter does not end here, inasmuch as, even the petitioner himself has produced million dollar document against him, being Annex.12, produced by him along with his rejoinder, which is Jamabandi of Samvat Year 2012 to 2015, and therein it is clearly shown, that the land 25 of Kila No.1 to 5 was recorded as Mafi Kotwal, then Kila no. 6 to 10 was recorded as Mafi Nai (Barber), then Kila No.20 was recorded as Mafi Tarkhan (Carpenter) and Kila No.21 to 25 was recorded as Mafi Mandir Bila Kabja i.e. without possession. This clearly shows, that out of Chak No.21, whichever Kilas were standing as village service grant, they were so recorded in name of different persons, but Kila No.21 to 25 was not recorded as Mafi Granthi, but was recorded as Mafi Mandir. This clearly negatives the contention of the appellant, about his being a village service grant holder of the land in question, as Granthi, so as to entitle him to lay any claim for conferment of Khatedari rights under Section 193. In that view of the matter, we are not inclined to accept these two contentions.
Coming to the question of delay, the judgment in Chail Singh's case does clearly lay down parameters, after discussing entire case-law, as to what would be the reasonable time for making reference, and in our view, in the totality of circumstances, it cannot be said, that the reference is belated. It is a different story, that before the Board of Revenue, or in the writ petition, or even while arguing before the learned Single Judge, this contention was not raised on the side of the appellant at all.
Then we come to the last contention about res-
judicata. At the outset, it may be observed, firstly that for taking a plea of res-judicata, a proper foundation is required to be laid, which in the present case did comprise of production of the application for reference, its reply, and order passed thereon, which should have been produced by the 26 petitioner along with Annex.4, which could have enabled the Collector to find out, as to whether the principles or bar of res-judicata are applicable or not. We at this very stage clarify, that the judgment in Savda's case relied upon by Mr. Rajvi is not applicable, as that case deals with a different situation altogether, and does not cover the controversy involved in the present case, about improper or illegal allotment having been made, which is sought to be got corrected by reference. The broad principles of res-judicata, being based on the Maxim of Roman Jurisprudence being, "interest reipublicae ut sit finis litium", the principles have to be applied, even in the present proceedings.
Then we proceed to examine, as to whether even without proper foundation having been laid, the bar of res- judicata is attracted or not. In this regard, a look at Annex.A, the order dated 6.10.94, produced by the petitioner shows, that in that case, the learned Collector mainly recapitulated the facts and noticed, that the stock argument of various lawyers, appearing on behalf of various persons is, that the land was not of mafi, but since the land revenue was excused, the land was of service of Gurudwara, and in consideration of such services, and since services were discontinued, the Khatedari has been conferred in accordance with Rules, and therefore, no proceedings can be taken. Then it was noticed, that various Khatedars have assailed the justification of demand of price, on the ground of land being given as village servants. After noticing this contention, all that has been found is, that in accordance with the circulars issued on 5.6.1965 and 10.5.1966, the services of village servants were discontinued, and direction were given for 27 moving applications within 30 days before the SDO for obtaining Khatedari rights, but in absence of any provision being made about the price of the land, steps were taken for recovering the complete price, whereupon the demand was assailed, and the High Court ultimately ordered not to recover the price in case of conferment of Khatedari rights under Section 193, rather the only recovery of land revenue should be made, and therefore, it was found, that the matter does not fall within Section 232 of the Rajasthan Tenancy Act or Section 82 of the Land Revenue Act, as Khatedari rights had been conferred free of cost under Section 193, as services of the village servants were no more required, and therefore, reference was not made. In our view, this judgment cannot be said to be operating as res-judicata, because, firstly that the case of the appellant was not about allotment having been made under Section 193, rather in Annex.4 the positive stand was taken to the effect, that the land was recorded as SIVAY CHAK RAKBA RAJ, and was allotted in accordance with the procedure prescribed for allotment, and after finding Santa Singh to be entitled to be allotted land. In that view of the matter, the question requiring to be gone into was as to whether the allotment was made in accordance with allotment rules or not. The finding recorded is, that the land was recorded in the name of Gurudwara, which obviously could not be allotted. On the other hand from the order Annex. A it appears that the question of permissibility of allotment of Gurudwara land to its Granthi was not at all involved before the authority. Likewise from perusal of the order Annex. A is not clear, as to whether the authority has seen the record about land being of Gurudwara, or land being held as village service grant. From the perusal of Annex. A it further 28 transpires, that by passing similar order, a spate of cases has been decided, inasmuch as, it is cyclostyle proforma, wherein columns had been filled in.
Then another aspect is that the application for making reference and the reply has not been placed before any of the authorities below, or even before the learned Single Judge, or before this Court, so as to enable us to comprehend, as to what was the controversy involved, and what had been decided, so as to probably attract the bar of res-judicata.
Then still another aspect of the matter again is, that this was not the stand taken by the appellant, either before the Board of Revenue, or before the learned Single Judge, that the land was a village service grant, which question has been decided, and therefore, the allotment could not be canceled.
Rather as noticed above, in the entire writ petition the sole case made out, or the ground raised for assailing the orders was, that the notice for reference was given with respect to the land comprised in Kila No.21 to 25, and that has been set aside, whereas the land allotted to Santa Singh comprised of Kila No. 1 to 6, which has been purchased by the petitioner, and the petitioner has nothing to do with the land comprising Kila No.21 to 25. That controversy also had been raised for the first time in the writ petition only, and in our view, has rightly been turned down by the learned Single Judge. From a collective reading of the entire record, as available, would show, that the petitioner has contested the litigation consciously knowing well, as to with respect to 29 which land the proceedings had been initiated, and with respect to which land the orders had been passed. Suffice it to say, that if the things were as simple as projected by the petitioner, that since he has purchased Kila No.1 to 6, while in reference, allotment and mutation and sale of Kila No.21 to 25 has been set aside, in which appellant has nothing to do, the appellant would not have even bothered to file a writ petition before this Court, much less the present appeal.
Over and above all this, all said and done, there is yet another aspect of the matter, viz. though not argued, yet even if it were to be assumed, for the sake of argument, that the doctrine of res-judicata was attracted, still in our view, after going through the entire material on record, as available with us, we have no manner of doubt, that the land in question was not held by the appellant as "his village service grant", rather it was a land recorded as land of Gurudwara, and it could possibly not be allotted to the petitioner under Section 193, and it is not shown to have been allotted to him in accordance with the otherwise regular process of allotment, as contended by the appellant in Annex.4. Thus, even without going into the question, as to whether the land of Gurudwara being of deity could be alienated or not, Santa Singh cannot be said to have acquired any right in the land in question, capable of being alienated in favour of the appellant. Obviously therefore, if any interference were to be made in favour of the appellant, on the ground of res-judicata, as sought to be contended, it would result into restoration of another illegality, i.e. illegal allotment of land in favour of Santa Singh, and its alienation to appellant. In our view, as held by learned 30 Single Judge also, and as consistently held by Hon'ble Supreme Court, that where interference under Article 226 jurisdiction results into bringing about such a situation of restoration of another illegality, then interference is required to be declined. In that view of the matter, we do not feel inclined to interfere with the order of the learned Single Judge, declining to interfere under Article 226 jurisdiction.
Then we come to the bunch of cases relied upon be the learned counsel for the appellant, starting from Lal Singh's case to Sarvan Jeet Singh's case. It would suffice to say, that in Lal Singh's case it was not disputed, that the person concerned was holding the land as a mafi, in view of the services rendered to the general public. Then in other cases also various facets have been considered, and in none of the judgments it has been held, that the land standing in the name of Gurudwara, having been either allotted to, or recorded in the name of Gurudwara, could be a subject matter of conferment of Khatedari rights to Granthi, or in favour of Granthi under Section 193 of the Rajasthan Tenancy Act. In that view of the matter, these judgments also do not help the appellant.
Thus taking from any stand point, we do not find any sufficient ground to interfere in favour of the appellant in this appeal. The appeal thus has no force and is dismissed. The parties shall bear their own costs. The amount of mesne profits as deposited pursuant to the order of this Court dated 25.4.2001, as modified on 21.5.2002, shall be paid to the person, who may be entitled to the land in question, consequent upon the dismissal of the present appeal of 31 Mukhtiar, with the finding of allotment in favour of Santa Singh being bad. If the appellant has not deposited the amount of mesne profits for any interregnum period, the same shall be recovered from the appellant by way of attachment, and executing our this order, by the principal civil court of concerned District, and after recovering, the amount be disbursed to the person, as ordered above.
( GOVIND MATHUR ),J. ( N P GUPTA ),J. /tarun/