Rajasthan High Court - Jodhpur
Lrs Of Kanhiya Lal And Ors vs B.O.R.,Raj.Ajmer And Ors on 11 October, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 585/2007
Lrs Of Kanhiya Lal S/o Late Shri Manohar Lal Expired His Legal
Representatives:-
1/1. Jagdish S/o Late Sh. Kanhaiya Lal
1/2. Mst. Phoolibai Wd/o Late Sh. Kanhaiya Lal
1/3. Smt. Dariyav
1/4. Smt. Kalawati
1/5. Smt. Kalawati
1/6. Smt. Indu Bala
1/7. Smt. Geeta
1/8 Smt. Shanta
1/9. Smt. Rekha
1/10. Smt. Chandra
1/11. Smt. Indra
All D/o Late Sh. Kanhiya Lal
3. Sunder Lal S/o Sh. Manohar Lal Sethi
4. Surya Prakash S/o Mishri Lal Sethi
5. Shanker Lal S/o Sh. Pratap Teli
All R/o village & Tehsil Gogunda
District Udaipur.
----Appellant
Versus
1. Board of Revenue, Rajasthan, Ajmer.
2. Additional Collector, Udaipur.
3. Tehsildar, Gogunda, Distt. Udaipur.
4. HIMMAT SINGH S/O BHERU SINGH EXPIRED HIS LEGAL
REPRESENTATIVES:-
4/1. Mst. Shela Kanwar Wd/o Late Himmat Singh
4/2. Sh. Rohitash Singh S/o Late Himmat Singh
Both resident of village & Tehsil Gogunda
District Udaipur.
5. Vikraram Singh S/o Bheru Singh
R/o Gogunda Distt. Udaipur.
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6. State of Rajasthan, Through
Secretary, Revenue Department, Jaipur.
7. Forest Officer, Udaipur.
----Respondent
For Appellant(s) : Mr. Sudhir Sharma
For Respondent(s) : Mr. Sandeep Shah, Senior Advocate-
cum-AAG, with Mr. Abhimanyu Singh
Mr. Rajeev Purohit
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR Judgment 11/10/2022 REPORTABLE The instant intra court appeal is directed against the order dated 07.05.2007 passed by the learned Single Bench dismissing the S.B. Civil Writ Petition No.5560/1994 preferred by the petitioners.
Through the writ petition, the petitioners sought to assail the order dated 30.10.1982, whereby reference was made for cancellation of mutation entry made in favour of the petitioners, the order dated 13.07.1989, whereby the Board of Revenue accepted the reference, and the judgment dated 23.09.1994, whereby D.B. of the Board of Revenue dismissed the Appeal preferred against the acceptance of reference.
Brief facts relevant and essential for disposal of the appeal are noted hereinbelow.
Late Shri Bhairo Singh was the erstwhile Jagirdar of the Village Majawad, Tehsil Gogunda, District Udaipur. It is claimed that land bearing Khasra No.20 ad measuring 158 bigha 9 biswa and Khasra No.23 ad measuring 296 bigha 8 biswa in Village Majawad was the Khud Kast land of Shri Bhairo Singh and was in (Downloaded on 26/12/2022 at 02:43:40 PM) (3 of 8) [SAW-585/2007] his possession, for which entry was made by the Settlement Department in Samwat Year 1995. With coming into force of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, Shri Bhairo Singh became Khatedar of the land in question. At the time of coming into force of the Rajasthan Tenancy Act in the year 1955, the land continued to be in his possession and was entered in the Revenue record as Khud Kast land of Thikana Gogunda. Thus, Shri Bairo Singh claims to have acquired Khatedari rights by virtue of Section 15 of the Rajasthan Tenancy Act. A parcel of land from these two Khasras was transferred to the appellant writ petitioners by virtue of registered sale deed executed in the year 1963. The disputed mutation entry No.95 was sanctioned as a consequence of the registered sale deed. However, long before that in the year 1945 and 1946, the Government of Mewar issued the notifications dated 21.10.1945 and 27.12.1946 declaring the lands of the questioned Khasras in the Village Majawad to be Forest area. The Additional Collector, Udaipur issued notices to the petitioners (purchasers) calling upon them to show cause as to why reference be not made for cancellation of the mutation entry No.95 on the basis of the notifications dated 21.10.1945 and 27.12.1946. This action was taken on the application of the Forest Department authorities, which banked upon the gazette notifications dated 21.10.1945 and 27.12.1946 issued by the then Mewar Government declaring the land in question to be Forest land. Accordingly, reference was made vide order dated 30.10.1982. The Board of Revenue accepted the reference by the order dated 13.07.1989 and declared the mutation entry to be illegal as the land could not have been transferred by Shri Bhairo Singh, who had no title thereof. The appellants unsuccessfully (Downloaded on 26/12/2022 at 02:43:40 PM) (4 of 8) [SAW-585/2007] challenged the order dated 13.07.1989 by filing an appeal, which came to be rejected by Division Bench of the Board of Revenue by order dated 23.09.1994. Having failed before the Revenue courts, the petitioners approached this court by filing a writ petition, which has been dismissed by the order dated 07.05.2007, which is assailed in this intra court appeal.
Learned counsel Mr. Sudhir Sharma, representing the appellants, vehemently and fervently contended that :-
(1) That as per the settlement records, entry of the Khasra numbers in question stood in the name of Thikana Gogunda in the Samwat Year 1995 and the same position continued till the Samwat Years 2013 and 2014.
(2) No description of the land was set out in the notifications dated 21.10.1945 and 27.12.1946 and thus, it is apparent that the land in question, which was sold to the petitioners by the Shri Bairo Singh, Jagirdar, Gogunda, was different from the one which was notified as forest by the above notifications. (3) He further urged that the findings which have been recorded in the analogous ceiling proceedings fortify the claim of the appellants that the land was lawfully sold to them by the Jagirdar.
On these grounds, he implored the court to accept the appeal, set aside the impugned orders and affirm the mutation entry No.95 made in favour of the petitioners, who are the bonafide purchasers of the land in question.
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Per contra, Mr. Sandeep Shah, learned Senior
Advocate-cum-AAG, assisted by Mr. Abhimanyu Singh Rathore, appearing for the Forest Department, vehemently and fervently opposed the submissions of the petitioner's counsel. He urged that the lands of Jagir of Thikana Gogunda were under the dominion of the then Government of Mewar, which issued the notification Annex.R/1 dated 21.10.1945 declaring the land ad measuring 270 bigha 17 biswa and 28 bigha 2 biswa of Village Majawad to be Forest land. The said notification was supported by a Ferhist Nishanat (Identification List), wherein the boundaries and identification marks of the land were clearly indicated. He referred to Section 4 of the Rajasthan Forest Act, 1953, and urged that there is no requirement in the statutory procedure that precise Khasra numbers of the land proposed to be declared as Reserved Forest should be mentioned in the notification. He further submitted that in the list of private properties of Jagirdar Gogunda approved by the Jagir Commissioner by order dated 15.04.1963, the land of the notified forest area of the Village Majawad is not included and as such, there is no merit in the claim of the appellant-petitioners that they lawfuly purchased the land owned by the Jagirdar.
Mr. Rajeev Purohit, learned counsel representing the respondent No.4, private respondents, being the descendants of Jagirdar Shri Bhairo Singh, supported the arguments of Mr. Shah and urged that as a matter of fact, the sale of the disputed land was made inadvertently and in ignorance of the above mentioned notifications. The properties owned by the Jagirdar were clearly mentioned in the order of the Jagir Commissioner and therein the disputed lands did not figure. They, thus, urged that the view (Downloaded on 26/12/2022 at 02:43:40 PM) (6 of 8) [SAW-585/2007] taken by the learned Single Bench dismissing the writ petition of the petitioners is absolutely unassailable on facts as well as on law and implored the court to dismiss the appeal.
We have heard and considered the submissions advanced by the learned counsel for the parties and have gone through the material available on record.
Three main contentions referred to supra were advanced by Mr. Sharma for assailing the findings recorded in the order of the learned Single Bench and in the orders dated 13.07.1989 and 23.09.1994 passed by the Board of Revenue. It may be mentioned here that the Revenue record, which was heavily relied by Mr. Sharma, just shows cultivatory possession on the land in question. The only document which provides legal evidence regarding the title of the properties owned by the erstwhile Jagirdar of Thikana Gogunda is the declaration made by the Jagir Commissioner. The judgment of the Jagir Commissioner dated 15.04.1963, contains a comprehensive list of private properties of Jagirdar of Thikana Gogunda. In this list, the disputed land of Village Majawad which was declared as Forest land way back in the year 1945 is not included. Pertinent finding was recorded in this order regarding the land of Village Majawad that the SDO has reported that some of the lands had been sold and others were in possession of cultivators and thus, could not be declared to be personal property of the Jagirdar. It is not in dispute that pre-independence, the questioned village areas were under the domain of the Mewar State, which was competent to issue directions for setting aside of its lands for appropriate use. The notifications dated 27.12.1946 were issued by the Government of Mewar declaring the lands of Village Majawad to be (Downloaded on 26/12/2022 at 02:43:40 PM) (7 of 8) [SAW-585/2007] Forest areas. This declaration was preceded by proper enquiry, wherein the land in question was identified by metes and bounds. As per Section 4 of the Rajasthan Forest Act, which reads as below, there is no requirement to give a precise identification of the land in question and it is sufficient to describe the limits of the Forest by roads, rivers, ridges and other well-known or readily intelligible boundaries. Such boundaries are clearly set out in the list annexed to the notifications supra.
4. Notification by 1[State Government].-- (1) Whenever it has been decided to constitute any land a reserved forest, the 1[State Government] shall issue a notification in the 2[Official Gazette]--
(a) declaring that it has been decided to constitute such land a reserved forest;
(b) specifying, as nearly as possible, the situation and limits of such land; and
(c) appointing an officer (hereinafter called "the Forest Settlement-officer") to inquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any person in or over any land comprised within such limits or in or over any forest-
produce, and to deal with the same as provided in this Chapter.
Explanation.--For the purpose of clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries.
(2) The officer appointed under clause (c) of sub- section (1) shall ordinarily be a person not holding any forest-office except that of Forest Settlement-officer. (Downloaded on 26/12/2022 at 02:43:40 PM)
(8 of 8) [SAW-585/2007] (3) Nothing in this section shall prevent the 3[State Government] from appointing any number of officers not exceeding three, not more than one of whom shall be a person holding any forest-office except as aforesaid, to perform the duties of a Forest Settlement- officer under this Act. State Amendment.
Thus, it is clear that the sale was made by the erstwhile Jagirdar of Gogunda of the lands of Khasra Nos.20 and 23 referred to supra to the appellants/their predecessors, was void ab initio because the land had already been declared to be that of Forest Department by notification referred to supra.
Learned Single Member of the Board of Revenue discussed the entire factual and legal scenario in extenso and answered the reference in favour of the Department by a well- reasoned judgment dated 13.07.1989, which has been affirmed by the two Member Bench of the Board of Revenue in special appeal vide judgment dated 23.09.1994. These concurrent findings of facts and law have further been cemented by the learned Single bench of this court while dismissing the writ petition preferred by the petitioner appellants by a well-reasoned and detailed judgment dated 07.05.2007. The concurrent findings of fact so recorded in the aforesaid three judgments do not suffer from any infirmity or illegality warranting interference in this intra court appeal, which fails and is dismissed as such.
No order as to costs.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
2-Pramod/-
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