Rajasthan High Court - Jodhpur
Jansu Lal & Ors vs State & Ors on 22 September, 2016
Author: Sangeet Lodha
Bench: Sangeet Lodha
CIVIL WRIT (CW) No.5062 of 1999
Jansu Lal vs.State of Rajasthan & ors.
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
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CIVIL WRIT (CW) No.5062 of 1999 PETITIONERS:
1.Jansu Lal son of Nagji Ram Baser
2.Sunder Lal son of Banshi Lal Baser
3.Manohar Lal alias Mahendra son of Banshi Lal Baser all residents of Begun, Dist. Chittorgarh versus RESPONDENTS:
1.State of Rajasthan through Tehsildar Begun
2.Board of Revenue for Rajasthan, Ajmer
3.Addl. Collector (Land Revenue), Chittorgarh
4.Sub Divisional Officer, Begun
5.Tehsildar, Begun Date of Order: 22.9.2016 HON'BLE MR.SANGEET LODHA,J.
Mr. B.R.Mehta, for the Petitioners.
Mr. O.P.Boob, Government Counsel.
1. This petition is directed against order dated 2.5.99 of the Board of Revenue Rajasthan, allowing the reference made by the Additional Collector (Land Acquisition), Chittorgarh, under Section 82 of CIVIL WRIT (CW) No.5062 of 1999 Jansu Lal vs.State of Rajasthan & ors. 2 Rajasthan Land Revenue Act, 1956 (for short "the Act of 1956") and Section 232 of Rajasthan Tenancy Act, 1955 (for short "the Act of 1955") in respect of the land ad measuring 8 bighas 19 biswas comprising arazi no.31, 32, 33, 34 and 35 of village- Basota Patwar Halka-Rajgarh, Tehsil-Begun, District Chittorgarh.
2. The relevant facts are that the land ad measuring 8 bighas 10 biswas comprising arazi no.31, 32, 33, 34 & 35 of village Basota, was khatedari land of one Shri Onkar s/o Khana . The petitioners were recorded as sub tenant of the land in the revenue record since samvat 2005. Onkar, the khatedar tenant of the land, died issue less and had no legal representatives. The father of petitioner no.1-Nagji continued in cultivatory possession of the land as on the date of coming into force of the Act of 1955 and thereafter the petitioners. The petitioners filed a suit for declaration of khatedari rights by CIVIL WRIT (CW) No.5062 of 1999 Jansu Lal vs.State of Rajasthan & ors. 3 virtue of provisions of Section 15 and 19 of the Act of 1955 before the Sub Divisional Officer, Begun. The suit was decreed vide judgment and decree dated 22.5.89 and accordingly, the land was mutated in the names of the petitioners vide mutation no.89 dated 17.6.92. After a lapse of about 9 years since passing of the decree by the SDO, Begun, the Additional Collector (Land Acquisition), Chittorgarh, made a reference to the Board of Revenue Rajasthan, under Section 82 of the Act of 1956 and Section 232 of the Act of 1955 for setting aside the decree, stating that after the death of khatedar tenant Onkar, he having died issue less, the land stands vested in the State and he being a member of Scheduled Caste, by virtue of provisions of Section 42 of the Act of 1955, nobody can claim khatedari rights over the land on the basis of possession.
3. The Board of Revenue observed that as per the jamabandi of the land for Samvat 2028 to 2031, the CIVIL WRIT (CW) No.5062 of 1999 Jansu Lal vs.State of Rajasthan & ors. 4 land was entered in the name of Onakr s/o Khana and in the column of name of khatedar, the factum of death of the agriculturist was recorded. The Board observed that even in khatedari of Samvat 2049 to 2052, the land is entered in the name of Onkar s/o Khana. In this view of the matter, the Board arrived at the conclusion that after death of Onkar,the land stood vested in State and could have been disposed of only by way of allotment and accordingly, while setting aside the mutation effected in the name of the petitioners, the land was ordered to be recorded in the revenue record as Government land. Hence, this petition.
4. Learned counsel appearing for the petitioners contended that it is a matter of record that the petitioners' ancestor Nagji was recorded as sub tenant of the land in Samvat 2005 and the petitioners were in continuous cultivatory possession of the land. Learned counsel submitted that the CIVIL WRIT (CW) No.5062 of 1999 Jansu Lal vs.State of Rajasthan & ors. 5 factum of death of khatedar tenant before the Samvat 2009 having been proved before the revenue court of competent jurisdiction and the petitioners having declared khatedar tenant of the land by virtue of provisions of Section 19 of the Act of 1955, no reference could have been made by the Additional Collector (Land Acquisition), Chittorgarh, either under Section 82 of the Act of 1956 or Section 232 of the Act of 1955. Learned counsel submitted that the decree passed in the suit preferred by the petitioners was appealable and therefore, if aggrieved, nothing prevented the State from filing the appeal before the Revenue Appellate Authority. Learned counsel urged that the decree passed in favour of the petitioners having attained finality, the same could not have been interfered with by the Board of Revenue in exercise of the reference jurisdiction.
5. On the other hand, learned Government CIVIL WRIT (CW) No.5062 of 1999 Jansu Lal vs.State of Rajasthan & ors. 6 Counsel submitted that the decree passed by the SDO being in violation of the provisions of Section 42 of the Act of 1955, the same has rightly been set aside by the Board of Revenue accepting the reference made by the Additional Collector (Land Acquisition), Chittorgarh. Learned counsel urged that even in jamabandi of Samvat 2028 to 2031 and thereafter, jamabandi of Samvat 2049-52, the land was entered in the name of Onkar s/o Khana and therefore, the claim of the petitioner that they were in cultivatory possession of the land as sub tenant since Samvat 2005 has rightly not been accepted by the Board of Revenue.
6. I have considered the rival submissions and perused the material on record.
7. It is not disputed before this court that the land Onkar s/o Khana was the khatedar tenant of the land in question and the father of petitioner no.1-Nagji was recorded as sub tenant of the land in question CIVIL WRIT (CW) No.5062 of 1999 Jansu Lal vs.State of Rajasthan & ors. 7 since Samvat 2005. The specific case set out by the petitioner that Nagji had expired before Samvat 2009 was found proved. Though, the respondents have come out with the case that even in jamabandi of Samvat 2028 to 2031 and thereafter of Samvat 2049 to 2052, Nagji has been recorded as khatedar tenant but then, it is not disputed that he was shown to be dead. It is not the case set out by the respondents before the Board of Revenue that Nagji did not expire prior to Samvat 2009. Be that as it may, the fact remains that the petitioners were in cultivatory possession of the land as sub tenant and Nagji having expired issue less with no legal representatives, the petitioners as sub tenant sought declaration for khatedari rights and they were declared as khatedar tenant of the land by virtue of provisions of Section 19 of the Act of 1955 vide judgment and decree dated 22.5.99 passed by the revenue court of competent jurisdiction. Admittedly, CIVIL WRIT (CW) No.5062 of 1999 Jansu Lal vs.State of Rajasthan & ors. 8 the decree passed in favour of the petitioners has attained finality inasmuch as, it was not appealed against by the State by availing a remedy of appeal available under the relevant statute. Strangely enough, while cancelling the mutation effected in favour of the petitioners on the basis of the entries in jamabandi of 2028 to 2031 and 2049 to 2052 in the name of Nagji, the Board of Revenue has not assigned any reason whatsoever as to why the decree passed in favour of the petitioners by virtue of provisions of Section 19 of the Act, is not sustainable in the eyes of law. As on the date of coming into force of the Act of 1955, the right of the petitioners to acquire the khatedari rights having been adjudicated by the court of competent jurisdiction, the subsequent amendment introduced in the Act of 1955 imposing restriction on transfer of khatedari rights over the land belonging to Scheduled Castes and Scheduled Tribes to other CIVIL WRIT (CW) No.5062 of 1999 Jansu Lal vs.State of Rajasthan & ors. 9 than members of Scheduled Castes or Scheduled Tribes, also does not come in the way of the petitioners. Thus, viewed from any angle, the Board of Revenue was absolutely unjustified in accepting the reference made by the Additional Collector (Land Acquisition), Chittorgarh, ignoring the decree passed by the revenue court of competent jurisdiction in favour of the petitioners declaring them khatedar tenant of the land in question by virtue of provisions of Section 19 of the Act of 1955.
8. In the result, the petition succeeds, it is hereby allowed. The order impugned dated 2.5.99 of the Board of Revenue Rajasthan, accepting the reference made by the Additional Collector (Land Acquisition), Chittorgarh, in respect of the land ad measuring 8 bighas and 19 biswas comprising arazi no.31, 32, 33, 34 and 35 of village-Basota Patwar Halka-Rajgarh, Tehsil-Begun, District-Chittorgarh, is set aside. The mutation of the land effected in the names of the CIVIL WRIT (CW) No.5062 of 1999 Jansu Lal vs.State of Rajasthan & ors. 10 petitioners shall stand restored. No order as to costs.
(SANGEET LODHA),J.
Aditya/