Rajasthan High Court - Jodhpur
Shakti Nagar Garh Nirman S.S. Ltd vs State & Ors on 24 September, 2008
Equivalent citations: AIR 2009 (NOC) 1007 (RAJ.)
Author: Vineet Kothari
Bench: Vineet Kothari
SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
1. S.B. CIVIL WRIT PETITION NO.330/1996
Ghan Shyam Singh .
Versus
1. The State of Rajasthan through the Tehsildar, Pali.
2. Collector, Pali.
3. Assistant Collector (Revenue), Pali.
4. Board of Revenue for Rajasthan at Ajmer.
5. The Jagir Commissioner, Rajasthan Bank Park, Jaipur.
6. Magha Ram S/O Sh. Chaina Ram
7. Jamna Ram alias Gamna Ram S/O Sh. Kesa Ram.
8. Madho Singh Dewan
9. The Commissioner, Deosthan, Udaipur.
2. S.B. CIVIL WRIT PETITION NO.2834/1997
Shakti Nagar Grih Nirman Sahkari Samiti Limited .
Versus
1. The State of Rajasthan through the Tehsildar, Pali.
2. The Board of Revenue for Rajasthan at Ajmer.
3. Mandir Shri Aimataji
4. Jamna Ram S/O Sh. Kesa Ram.
5. Ghanshyam Singh S/O Prithvi Singh
6. Madho Singh Deewan S/O Hari Singh Rajput.
7. Magha Ram S/O Sh. Chaina Ram Sirvi.
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Mr.L.R.Mehta, }
Mr.T.S.Champawat } for the petitioners.
Mr.J.L.Purohit }
Mr.Vijay Bishnoi }
Mr.V.S.Choudhary } for the respondents.
Mr.O.P.Boob }
SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
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Date of judgment : 24.9.2008
REPORTABLE
BY THE COURT:
1. These writ petitions are directed against the order of Single member of Board of Revenue Annex.21 dated 1.11.1994 and Division Bench order Annex.23 dated 30.5.1995 whereby the Board of Revenue in exercise of their power under sec. 221 of Rajasthan Tenancy Act quashed and set aside the decree of the Assistant Collector, Pali dated 24.4.1973 (Annex.13) in favour of the petitioner Ghanshaym under section 88 of the Rajasthan Land Revenue Act. The Board in exercise of its powers under Section 221 of the Rajasthan Tenancy Act did so on the application of the private respondents, namely, Sh. Magha Ram and Jamna Ram - respondents No.6 and 7 in the present writ petitions.
2. Being aggrieved by the said order, the petitioner has approached this Court by way of present writ petition with the following averments:
(a) The land for which the dispute relates is known as Bera Rodawa Bawadi consists of old survey No.1148 to SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 3/43 1154 and 1156 to 1167 in all 19 survey numbers total measuring 34 bighas and 0.5 biswas of which present survey No.s are 1420 measuring 0.9 biswas, 1421 measuring 1 bigha and 1422 measuring 32 bighas and six biswas total measuring 34 bighas and 0.5 biswas.
(b) These lands were originally granted by the erstwhile sovereign ruler of Marwar State, Maharaja Jaswant Singh in the Samwat year 1936 to the predecessors - forefathers of the non- petitioner No.8 -
Madho Singh Deewan. The family tree of the non- petitioner No.8 so far known starts from Sh. Shivdan Das Ji whose son was Sh. Laxman Das Ji. The aforessaid patta was granted in favour of Sh. Shakti Das mentioning the names of forefathers also.
(c) Shakti Das Ji had a son Sh. Pratap Singh, who succeeded him and from Pratap Singh his son Hari Singh succeeded him. Deewan Madho Singh non-petitioner No.8 was minor at the time of death of Sh. Hari Singh Ji and hence his jagir of which the disputed land was also a part was to be in Court of Wards in the erstwhile State of Marwar under the State Guardianship of Thakur Govidn Singh Ji of Chandawal.
SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
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(d) At the relevant time, the afoersaid lands were shown as the personal properties of the jagirdar in the Court of Wards, in the list of property submitted at that time.
(e) Consequent to the passing of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952, the non-
petitioner Deewan Madho Singh's Jagirs were also resumed on 1.7.1955. Since the aforesaid lands were the personal property of the Jagirdar, the aforesaid land, which is the only personal land of the non-petitioner No.8 in Revenue Villagek Pali, a claim was made for this land before the Jagir Commissioner in form No.5. This land is shown at item No.4, Pali, 15 acres with the income of Rs.201/-. The Jagir Commissioner after enquiring into the full claim came to the conclusion that Bera Rodawa Bawadi Tehsil Pali is the personal property of the non-petitioner Deewan madho Singh, which is liable to be resumed consequent to the Resumption Act. This judgment was passed on 3.1.1958. There is a letter of the Jagir Commissioner on record since 12.9.1958, wherein also at item No.4, it has been mentioned that property Bera Rodawa Bawadi, Tehsil Pali is liable to be SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 5/43 resumed and the petitioner is entitled to be compensation for the same and consequently this Jagir was resumed and compensation was duly determined and paid to Deewan Madho Singh - non-petitioner No.8.
(f) The proceedings for resumption of Jagir relating to the then Jagirdar Madho Singh who was minor and the Jagir of Bilara was administered by the Court of Wards and during the process of resumption of Jagirs, the claim filed by the Court of Wards on behalf of the then Jagirdar before the Jagir Commissioner. The whole record of the resumption of jagir of Ex-Jagirdar Madho Singh Vakey Bilara was with the Jagir Commissioner.
During the process of enquiry the Jagir Commissioner made a detailed enquiry about the jagir of Deewan Madho Singh and framed three questions (1) jagir which is in grant of Deewan (2) jagir which is in the name of Aimataji and (3) other lands and after due enquiry it was held that the land belonging to jagir shall be resumed and the land belonging to Aimataji Vakey Bilara shall be exempted from the resumption and vide Jagir Commissioner order dated 3.1.1958 it was held that Bewari Rodawa situated in Pali shall be resumed. However, inspite of efforts, petitioner could not get the SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 6/43 certified copy of separate order, if any dated 3.1.1958, but the compliance order in pursuance oforder dtd.3.1.1958 was issued on12.9.1958.
(g) So far as finding of Bera Rodawa Bawadi is concerned, the same is given at page 7. Bera Rodawa Bawadi was held to be in personal Jagir of Deewan not the property of Aimataji.
(h) As such the above land was Jagir land as defined under Sub-section 22 of Section 5 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act of 1955) of the then Jagirdar Vader Bilara Deewan Madho Singh. This personal Jagir of Deewan Madho Singh stood resumed by proceedings under the Rajasthan Land Reforms and Resumption of Jagirs Act.
(i) The petitioner Ghanshyam Singh was the tenant in the aforesaid Jagir land of Deewan Madho Singh and consequent to the resumption of the Jagir since he was in continuous cultivatory possession of the aforesaid land much prior to the relevant date, the right as a khatedar tenant stood accrued and conferred upon him by operation of law automatically and hence he moved an SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 7/43 application for correction of the Revenue Record. Since this application related to the Tehsil Pali, the same was sent to the Settlement Officer to the Assistant Land Record Officer, Pali wherein the Kamdar, Toshakhana Badher also filed an application admitting the claim. The learned Assistant Land Record Officer recorded evidence of Jawan Singh and Bhagwati Lal and also perused the relevant Revenue record including the Revenue record Girdawari of samwat year 2009-2015. The learned Revenue ordered that the petitioner Ghan Shyam Singh be entered as a khatedar tenant and in place of Deewan Hari Singh, Deewan Madho Singh be entered as Jagirdar.
(j) Consequent to this decision, the record was duly corrected and the petitioner continued to be in possession as a khateadr tenant and Parcha lagan was issued in the name of Ghan Shyam Singh and Jamabandi continued in the name of the petitioner till 1968.
( k ) Thereafter when the petitioner's name was omitted from the Revenue record, the petitioner filed a Revenue suit under Section 88 of the Act, which was decreed in his favour on 24.4.1973 by the Assistant Collector, Pali. Out of 34 bighas and 0.5 biswas of land in question, the SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 8/43 petitioner is said to have sold 22 bighas and 6 biswas of land of survey No.1422 by registered sale-deed dtd.11.6.1984 in faour of one Sh. Shakti Nagar Housing Cooperative Society Limited, Pali, which is another petitioner before this Court in writ petition No.2834/1997, which is also being disposed of by this common order.
3. The petitioner has further averred in para 16 that despite the private respondents having tried to seek reference to the Board of the Revenue under Section 232 of the Act through Collector, Pali vide reference No.54/87, but the same was dismissed by the learned Collector, Pali vide order dtd.23.4.1991. Another reference, namely, 18/87 in which it was claimed that the land in question belonged to deity Aimataji situated at Bilara was also dismissed on 23.4.1991.
4. The petitioner has also stated in para 19 of the writ petition that another suit has been filed on behalf of deity Aimataji through various persons belonging to Sirvi caste, which is registered as Suit No.1/84, which is still pending with the SDO, Pali.
5. The cause of action to the petitioner arose when these privates respondents filed an application under Section 221 of the Act for quashing of the decree dtd.24.4.1973 and the order passed by the SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 9/43 ARO dated 20.3.1959 and the Board in exercise of its powers under Section 221 of the Rajasthan Tenancy Act which vests the power of general superintendence and control over all the Revenue Courts, quashed and set aside the said decree dtd.24.4.1973. Hence, this writ petition was filed by the petitioner in this Court.
6. Sh. L.R.Mehta assisted by Sh. T.S.Champawat vehemently submitted that the Board of Revenue has grossly erred in invoking its jurisdiction under Section 221 of the Act when earlier the reference for same grievance raised by the respondents had been turned down by the Collector, Pali and that order became final and a very old existing decree dtd.24.4.1973 which concluded the tenancy rights of the petitioners over the land in question, could not be set aside by the Board. He further alleged that the land in question was personal jagir of Deewan Madho Singh's ancestors which stood resumed on 1.7.1955 under the Jagir Resumption Act, 1952 and for which compensation was also determined and paid to the ancestors of Madho Singh vide Annex.4 and office-note Annex.5 and though the original Jagir resumption order dtd.3.1.1958 could not be made available by the petitioner before this Court as he had applied for certified copy of the same, but the same was not made available to him as the relevant record was not traceable, but without referring and quashing and setting aside that Jagir Resumption order dtd.3.1.1958, the Board of Court could not quash and set aside the decree SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 10/43 dtd.24.4.1973. He submitted that though the order of the Division Bench of the Board of Revenue refers on page 4 of the order dtd.30.5.1991 to the Jagir Resumption order dtd.3.1.1958 of the Jagir Commissioner, but the same was not believed because the said order was not produced before the Board of Revenue. He submitted that the said order was clearly Ex.3 on record of the suit in which the decree dtd.24.4.1973 was passed by the learned Assistant Collector, Pali and which decree was being set aside by the Board of Revenue. Therefore, it was incumbent upon the Board of Revenue to refer in detail the said order of Jagir Commissioner and then only on cogent reasons if it could set aside and quash that order, it could do so and thereafter only it could pronounce upon the validity of the decree dtd.24.4.1973. He therefore, prayed that the Board of Revenue has erred in exercising its powers under Section 221 of the Act in absolutely erroneous manner and therefore, the impugned order deserves to be quashed and set aside.
7. These arguments are vehemently opposed by Mr. Vijay Bishnoi, learned counsel appearing for the private respondents No.6 Magharam, who strongly urged taking the Court through various documents, produced with the reply of the respondents that the land in question belonged to deity Ai Mataji and therefore, he submitted that entire land comprised of 327 bighas which vested in deity Aimataji and therefore, the said land could not be held to be personal SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 11/43 Jagir of Deewan Madho Singh's ancestors, namely, Laxman Das, Shakti Das, Pratap Singh and Hari Singh respectively. He referred to following documents in extenso in support of his submission.
S. No. Annexure Documents Page
No.
R6/8 Khewat Khatoni Pali 1571 showing Mandir
Aimata as Khatedar in column No.4 entry of
1 khud kast in column No.5 232
R6/9 Khatauni Mauja Kasba Pali, pertaining to
Samwat year 1881 showing possession and
2 Khatedari of mandir Aimata. 237
R6/10 Khatauni Mauja Kasba Pali pertaining to
Samwat year 1998 showing possession and
3 khateadri of Mandir Aimata. 239
R6/13 Order dated 22.7.1931 passed by Mufi affair
Pali whereby the doli of temple Aimata ji was 4 confirmed for 327 bighas and 16 biswas
8. Mr. Vishnoi further submits that following documents show that the petitioner obtained khatedari rights over the land in question by collusion with Deewan Madho Singh :
S. No. Annexure Documents Page
No.
R6/1 Appliation submitted by minor Ghanshyam
1 Singh for correction of records. 216
R6/2 Copy of the plaint preferred by Ghanshyam 218
U/s 88 of the Rajasthan Tenancy Act before
2 Assistant Collector, Pali ion 19.2.1973.
R6/3 Statement of Prithvi Singh (father of
petitioner) Ghanshyam Singh recorded in suit filed by Ghanshyam Singh vide Annexure 3 R6/2. 221 SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 12/43 S. No. Annexure Documents Page No. R6/4 Copy of plaint preferred by Prithvi Singh (father of petitioner) and Chetan Prakash (brother of petitioner) and petition in S.B. Writ Petition No.2834/90 under Section 80 and 53 4 of Rajasthan Tenancy Act on 26.11.1983 223 5 R6/6 Khasra Milan 229
9. For these documents, averments made in the reply filed by the respondents No.6 and 7 are as follows:
"(a) That the petitioner had filed an applciation before the Assistant Land Record Officer, Pali on 8.1.1958 stating therein that he has been in possession of Khasra No.1148, 1154, 1156 to 1167 and 1625 for last five years and has continuously been cultivating the land, therefore, the entries in the record may be corrected. It was on this application that the order Annexure 9 was passed by the Assistant Record Officer, Pali, which has been quashed by the Board of Land Revenue. It is respectfully submitted that the petitioner has shown his age in the affidavit in support of the writ petition as 48 years in 1996 which means he was born in the year 1948. it is beyond imagination that he was cultivating the land personally in the year 1953 when he was hardly 5 years of age. This alone goes to show that the land of Deity SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 13/43 Shri Aimataji has been sought to grabbed and therefore, the learned Board of Revenue has rightly intervened and has rightly come to the conclusion that the orders dated 20.3.1959 and 24.4.1973 are void ab initio.
( b). That the petitioner has made contradictory statements regarding ownership of the lands inasmuch as in the revenue suit filed by the petitioner before the Assistant Collector, Pali on 19.2.1973 seeking declaration of his khatedari rights over 33 bighas 19 biswas of land, the petitioner had claimed that this land as well as land comprised in khasra No.523 measuring 294 bighas 1 biswa was Jagir lands and the petitioner was a tenant of Jagirdar. In this suit the petitioner himself never appeared in the witness box to support the plaint and instead his father Prithvi Singh appeared in the witness box and deposed totally contrary to the averments made in the plaint inasmuch as Prithvi Singh deposed before the Sub Divisional Officer, Pali on 31.3.1973 that land measuring 327 bighas 16 biswas was purchased by the petitioner from Madho Singh ( non- petitioner No.8).
(c). That the answering respondents have been able to SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 14/43 lay hand on a plaint filed by the father and brother of the petitioner before the Sub Divisional Officer, Pali on 26.11.1983 under Section 88 and 53 of the Rajasthan Tenancy Act for partition of the lands in dispute measuring 33 bighas and 15 biswas comprised in Khasra No.1420, 1421 and 1422 (the part of the land of Deity) wherein the plaintiff's father and brother claimed that these lands belong to Hindu Undivided Family and the plaintiffs are the joint khatedars of the land. This further shows that the another contradictory statements regarding ownership of the land was made by the father of the petitioner by filing the suit, of course, said suit was subsequently withdrawn.
(d). It is wrong to contend that the dispute relates to 34 bighas and 5 biswas of land. In fact, the Deity Shri Aimataji held 327.16 bighas of land only. A copy of the Milan Khshetrapal prepared by Government of Jodhpur in the S.Y.1998 showing the entire land of the Deity Shri Aimataji is submitted herewith and marked as ANNEX.R6/5. The petitioner has claimed Khatedari rights mentinoed in the plaint Annexure-R6/1 to be the owner of 294.1 bighas of alnd comprised in khasra No.523 (formerly known as khasra No.1625) which land SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 15/43 also belongs to the Deity and the entire 327.16 bighas of land was the subject matter of dispute before the learned Board of Revenue, still the petitioner has mentioned in this para that the dispute relates only to 34 bighas 5 biswas only and has intentionally produced partial record. The answering respondents also places herewith Milan Kshetrapal prepared during land consolidation proceedings held in S.Y. 2019, which is marked as Annnexure R/6/6. The petitioner while submitting application before the Assistant Record Officer, Pali Annexure-R/6/1 sought correction of record in Parcha Lagan No.258, a certified copy whereof is submitted herewith and marked as Annexure-R6/7, which also shows the total land to be 327 bighas 16 biswas. All these documents go to show that the land in disptue is 327.16 bighas and not merely 34 bighas 5 biswas as claimed by the petitioner in this para.
In fact the total land measuring 327 bighas 16 biswas was given in Maufi to temple Shri Aimata by the erstwhile State of Jodhpur and was recordd in the States' record.
( e) Firstly this patta was never produced before the SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 16/43 learned Board of Revenue by the petitioner and therefore, this cannot at all be produced before this Hon'ble Court in extraordinary jurisdiction under Article 227 of the Constitution of India. Neither any description of Khasra numbers has been given in the patta nor even the quantum of the land has been given. The answering respondents assert that this Patta does not realte to the land in question.
( f). The petitioner has failed to establish that the land in question was the Jagir land of any of the persons mentioned in this para. In fact, the land in question measuring 327 bigha and 16 biswa is the land of Deity granted to it in Mafi by erstwhile State of Jodhpur Marwar.
(g). The petitioner has not produced any judgment of Jagir Commissioner before the learned Board of Revenue as would be evident from Annexure 23.
(h) The land belonging to the Deity allotted by the Ex-
Ruler of Jodhpur State could never be comprised in Jagir of Deewan Madho Singh. Annexure 4 no where shows the description of land in dispute, however, as submitted SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 17/43 above the land of deity could not be resumed by the Jagir Commissioner. The theory of inclusion of land in question in the Jagir of Deewan Madho Singh has been created as an afterthought. Annexure - 35 does not even disclose the alleged date of decision i.e. 3.1.1958 as claimed by the petitioner in this para. Even the letter of the Jagir Commissioner dated 12.9.1958 no where depicts the details of the land viz. Khasra number, quantum of the land etc. and hence all these documents Annexures -4 and 5 and letter dated 12.9.1958 are wholly irrelevant and do not prove any title of Diwan Madho Singh or his predecessors over the land in question. ( i ) As submitted above, the petitioner has completely failed to establish that the lands in question were the Jagir lands of Diwan Madho Singh. The answering respondents asserts that the land measuring 327 bighas and 16 biswas belonged to Aimataji Bader Bilara. ( j) As submitted above, the land in question having been granted in Mafi to the Deity measuring 327.16 bighas could not be included in the Jagir of Diwan Madho Singh nor there could be any question of resumption of these lands under the Rajasthan Land SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 18/43 Reforms and Resumption of Jagir Act, 1952. The learned Board of Revenue has recorded findings of fact based on the revenue record that the land belongs to Deity Aimataji and this finding of fact does not call for any interference by this Court in certiorari jurisdiction. However, the answering respondents maintain that the petitioner has completely failed to prove the land to be Jagir land and it is established that the land belongs to Deity Shri Aimataji.
(k) As submitted above, the petitioner has shown his age in the affidavit sworn in support of the writ petition as 48 years in 1996 that means he was born in 1948. The Jagir Act came into force in the year 1952 and the petitioner claims resumption of Jagir on 1.7.1955 and at that time, the petitioner was 7 years of age then how he was a tenant or was he cultivating the land personally.
(l) At this junction, it may be submitted that the petitioner had filed the suit before the Assistant Collector, Pali for declaration of his khatedari rights ( a certified copy whereof has been submitted as Annexure R/6/2). In that suit the petitioner himself never appeared to support the averments of the plaint nor there is any SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 19/43 written statement on behalf of the State on record, document Ex.1 (Khatoni S.Y.2019) did not even contain the name of Dewan Madho Singh (respondent) who was arrayed as defendant No.1, Ex.3 (Annex.6) produced by the petitioner before the trial Court was merely a notice of Jagir Commissioner still the learned Assistant Collector decreed the suit treating Annexure 6 to be judgment of Jagir Commissioner or which decree certainly was a nullity and the learned Board of Revenue has very rightly set aside the same vide its order dated 1.11.1994 after detailed and critical examination of all the facts holding it to be illegal, perverse and void ab initio. The special appeal before the Division Bench of the learned Board of Revenue has also been dismissed by a well reasoned order.
( m) So far the application for correction of revenue record (Annexure -8) is concerned, suffice it to submit that the entire land was recorded in the name of Temple Shri Aimataji right from 13.12.1895 corresponding to S.Y. 1954 (as is evident from Annexure-R/6/8) and thereafter from S.Y. 2016 to 2031 the land was entered in the Revenue record as Mandir Shri Aimataji Bhogta and Ghanshyam Singh son of Prathvi Singh Khatedar. SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 20/43 Copies of Khatoni of S.Y.1998 and Khatoni of S.Y. 2019 are submitted herewith and marked as Annexure R/6/9 to R/6/11. It is pertinent to submit here that in Parcha Lagan No.258 the entire land in question was entered in the name of Deity Shri Aimataji cultivating the land personally (Makbuja khud) which clearly means Khud Kasht, which Parcha Lagan was the subject matter of correction before the Assistant Land Record Officer and thereon the impugned order dated 20.3.1959 Annexure -9 was illegal, violative of principles of natural justice and void ab initio and the learned Board of Revenue has rightly set aside the said order. It is pertinent to submit here that the reliance placed by the Assistant Land Record officer on the evidence of Kamdar Jawan and Bhagwati Lal totally ignoring the revenue record was mis-conceived. Without impleading Temple Aimataji, whose name was very much there on revenue record, no correction of entry could be ordered. It is also interesting to note that Diwan Madho Singh is none else than the real material cousin of the petitioner. The entire proceedings before the learned Assistant Land Record Officer, Pali clearly appear to be collusive. ( n) It is interesting to note that in the application the SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 21/43 petitioner prayed for entering the name of Dwan Madho Singh as land holder and his name as Khatedar, whereas, in the revenue suit, it was averred that his name alone should have been entered in the revenue record. All this goes to show that the petitioner in collusion with Dewan Madho Singh who was nothing more than a decendent of Pujari of Shri Aimataji wanted to grab the land of the Deity. But the learned Assistant Land Record Officer, Pali being wholly unmindful of the fact had directed for entering the name of the petitioner as Khatedar vide Annexure 9 and the learned Board of Revenue has rightly quashed and set aside the order Annexure-9. ( o ) The decision Annexure-9 was completely erroneous and contrary to the facts and law and the learned Board of Revenue has critically examined the entire matter and has rightly come to the conclusion that the order annexure-9 was void ab initio and has very rightly quashed and set aside it.
( p) The petitioner being minor could not be cultivating the land personally as claimed by him in this para. However, a look at Annexure 11 and 12 would reveal that the land stood entered in the name of Mandir Shri SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 22/43 Aimataji and Hari Singh S/O Sh. Pratap Singh was merely a Pujari and a tenant of Mandir Shri Aimataji cannot be Khatedar of the land of Deity who is a perpetual minor. In the Girdawri of S.Y. 2011 and 2012 (Annexure -11) even the Deity itself has been described as Khatedar and therefore, the claim of the petitioner that he alone had cultivated the land is totally false. ( q ) The petitioner has not produced any revenue record showing that his name was deleted and therefore only he filed regular revenue suit. In fact, the petitioner had filed the revenue suit No.9/73 in the Court of Assistant Collector, Pali claiming himself to be Khatedar of respondent No.8. It is interesting to note that the petitioner did not even implead the Deity in whose name the land stood recorded through Pujari Hari Singh son of Pratap Singh. It is well settled law that no Khatedari rights can be conferred on any person in respect of land belonging to Deity. The learned Board of Revenue has critically examined the entire state of affairs and thereafter had come to the conclusion that the decree was void ab initio and no Khatedari right can accrue on the land of Deity and has directed for entering the land in the name of Deity.
SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 23/43 It is interesting to note that in the revenue suit No.9/73 the petitioner had made submission that the name of Hari Singh son of Pratap Singh as Pujari Dolidar was entered in the revenue record in the pass book, whereas, Hari Singh was never impleaded as party and in the prayer clause it was prayed that the name of Madho Singh be deleted from the pass book. It is pertinent to submit here that the name of Madho Singh never appeared in pass book as Dolidar Pujari. This also goes to show that a decree was obtained fraudulently which has rightly been set aside by the learned Board of Revenue.
( r ) The entire proceedings entering the name of the petitioner as Khatedar of the land belonging to Deity are illegal and void.
(s) When the petitioner himself had no valid title over the land nor could he derive any such title, the sale of a part of the land in dispute was also void and ineffective so far as the rights of the Deity who is a perpetual minor are concerned. All subsequent proceedings pursuant to illegal sale of land by the petitioner in favour of SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 24/43 Cooperative Society being wholly illegal are of no consequence and are ineffective. The petitioner has no right to retain even an inch of land of the Deity even for a moment and is liable to be evicted. The petitioner has claimed to have constructed house over part of the land in the year 1953. As submitted above, in the year 1953, he was hardly 5 years of age and how can he construct the house or establish a factory. The answering respondents have come to know that the petitioner is in service of Dena Bank at Jamnagar, Gujarat for last many years and is serving there even till today.
(t) The petitioner has not disclosed in this para that the learned Collector had declined reference on technical grounds and had gone into the merits of the case. Again it may be submitted that the learned Collector has not at all gone into the merits of the case and declined reference on technical grounds by observing that since in this matter the interest of Mandir Shri Aimataji is involved and the temple could initiate proceedings in the competent Court. It was in these circumstances that the answering respondent invoked the extra-ordinary jurisdiction of the learned Board of Revenue under Section 221 of the Rajasthan Tenancy Act, 1955 and the learned Board of Revenue has passed the impugned order SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 25/43 Annexure 21 and Annexure 23.
(u). That para 18 of the writ pettion so far as order of Additional Divisional Commissioner is concerned is not disputed. The answering respondent No.6 had preferred a revision petition before the learned Board of Revenue against the order of the Assistant Commissioner but since subsequently the learned Board of Revenue quashed the decree obtained by the petitioner on 24.4.1973 as also the order dated 20.3.1959 obtained by the petitioner for correction of entires in the Revenue record vide order Annexure 21 and 23, the challenge to subsequent proceedings of mutation had become meaningless and therefore, the answering respondent No.6 has withdrawn the revision petition No.58/90 from the learned Board of Revenue.
(v) That para 19 of the writ petition is denied.
However, proceedings if any initiated by other devotees of the Deity have become redundant on account of the impugned orders Annexures 21 and 23 passed bythe learned Board of Revenue whereby the entire game played by the petitioner to grab the land of the Deity has been put to an end.
SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 26/43 (w) That so far as para 20 of the writ petition is concerned, the petitioner has not produced the copy of the Trust deed and therefore, no effective reply can be given. However, it was the respondent No.8 and his family members who were the Karta Dharta of the Aimataji temple and might have got the trust registered and the respondent No.8 is none else than the maternal cousin of the petitioner and the decree set aside by the learned Board of Revenue was obtained collusively by the petitioner in collusion with respondent No.8 himself.
The answering respondents do not know whether the land in dispute were shown by the respondent No.8 or his family members in the Trust deed or not or was intentionally kept out.
(x). That para 21 of the writ petition is denied in view of the submissions made in the preceding paragraphs. If the respondent No.8 is the Chairman of the Trust and the collusive decree obtained by the petitioner which has been set aside by the learned Board of Revenue speak in themselves about non-inclusion of lands in the Trust deed.
SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 27/43 (y). That para 22 of the writ petition is denied. The contentions raised in this para are misconceived and misplaced. The supervisory jurisdiction of the learned Board of Revenue under Section 221 of the Rajasthan Tenancy Act, 1955 for correction of the illegality cannot be curtailed by provisions of Public Trust Act. In the present case the matter relates to illegal conferment of Khatedari rights over the land belonging to the Deity who is a perpetual minor.
(z). That para 23 of the writ petition is denied. Since the orders passed by the Assistant Land Record Officer dated 2.3.1959 and the decree passed by the Sub Divisional Officer, Pali dated 24.4.1973 were obtained illegally, collusively and were void ab initio, the learned Board of Revenue rightly entertained the application of the answering respondent and passed the impugned orders Annexure-21 and 23. So far as non-impleading Shakti Nagar Housing Cooperative Society Limited, Pali suffice it to submit that the learned Board of Revenue has critically examined this aspect and has come to the conclusion that all proceedings subsequent to the decree dated 24.4.1973 were consequential matters and once the decree itself is a nullity, no rights whatever of the SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 28/43 subsequent purchaser of the land survive. It is settled law that a purchaser cannot derive a better title than seller and if the title of the seller is void ab initio, no title passes on the subsequent purchaser.
10. Mr. Vijay Bishnoi, the learned counsel for the respondent No.6 has also filed written submissions and has contended as under:
a) The total land in question involved in the dispute is 327 bighas and 16 biswas. The land in question earlier falls in 19 kharas, later on converted in 20 khasras and at presen converted in 4 khasras.
b) From the documents Annex.R6/8 (page 232), R6/9 (Page 237), R6/10 (page 239), R6/13 (page 243), it is clear that land measuring 327 bighas and 16 biswas is recorded in the name of Mandir Aimata since long time.
c) The said entries in the revenue record were changed and the name of Mandir Aimata was deleted without making Mandir Aimata as party by the Assistant Record Officer vide order dtd.20.3.1959 (Annex.9) and thereafter by Sub-Divisional Officer, Pali by decree dated 24.4.1973 (Annex.13).
SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 29/43
d) Earlier the disciples of Mandir Aimata has got the matter referred to the Board of Revenue under Section 232 of the Rajasthan Tenancy Act. Once the Collector, Pali vide order dated 18.9.1986 has referred the matter to the Board of Revenue, but later on vide order dtd.10.5.1988 the earlier order of reference dated 18.9.1986 was recalled, the matter was again heard and the Collector, Pali vide order dated 23.4.1991 has refused to refer the matter to the Board of Revenue on the ground that the word "decree" was not there in Section 232 in the year 1973 and it was added only in the yea 1981, therefore, the decree passed by the SDO, Pali date 24.4.1973 cannot be referred under Section 232. The order of the Collector, Pali dated 23.4.1991 is Annex.16 (page 113). When the Collector, Pali has refused to refer the matter to the Board of Revenue under Section 232, then only the respondent No.6 along with Jamna Ram respondent No.7 (now died) has approached the Board of Revenue, Ajmer under Section 231 of Rajasthan Tenancy Act, 1955 by making an application (Annex.19). In the Annex.19 every detail was given, the petitioner has filed reply before the Board of Revenue, Ajmer vide Annex.20 and the Board of Revenue after hearing all the parties has SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 30/43 passed the order (Annex.21). An appeal before the Division Bench was referred by the petitioner Ghanshyam Singh which was alsodecided vide order dated 10.5.1995 (Annex.23) and the Board of Revenue has ordered for quashing the order dated 24.4.1973 (Annex.13) and 20.3.1959 (Annex.9).
e) Before the Board of Revenue as well as before this Court, the petitioner has utterly failed to prove that the land in question was personal jagir of respondent No.8 Jagirdar Madho Singh. In the para No.2 and 3 of the writ petition, it is clearly mentioned by the petitioner that the land in question was granted to the forefathers of respondent No.8 Madho Singh vide Annex.2. From the bare perusal of Annex.2, it is clear that it is not a grant of jagir as alleged by the petitioner, but it is a sale deed. A sale-deed cannot be termed as a jagir in any manner.
f) That from the other documents (Annex.3, 4, 4A, 5 and 6), it is nowhere borne out that the land in question is the personal jagir of respondent No.8 Madho Singh. On the other hand, from the documents annexed with the reply (Annex.R6/8, R6/9, R6/10 and R6/13), it is clear that the land in question, as described by the petitioner in SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 31/43 para No.2 of the writ petition, is the land recorded in the name of Mandir Aimata since beginning.
It is further submitted that from the documents on which the petitioners are placing reliance such as Annex.8 (the application moved by the minor Ghanshyam Singh), Annex.9 (the order of the Assistant Record Officer dated 20.3.1959), Annex.13 (the judgment and decree assed by the SDO, Pali), it is clear that the land in question is the very same land which was recorded in the name of Mandir Aimata. In the Annex.8 all the khasras numbers are mentioned in para 1 and 3 of the application. In the Anex.9, the khasra numbers are mentioned in operative portion of the order. In Annex.13 in the very beginning of the order, it is mentioned that the total land in question is 327 bighas.
g) The order passed by the Assistant Record Officer dated 20.3.1959 (Annex.9) is absolutely illegal and without jurisdiction because neither Mandir Aimata was made party before the Assistant Record Officer nor the State Government was made party. It is pertinent to note here that as per the case of the petitioners, the personal Jagir of respondent No.8 Madho Singh was resumed on SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 32/43 1.7.1955 and vest in the State Government, then any correction in the revenue record for the said land cannot be made without making the State of Rajasthan as party.
It is an admitted position that till the passing of the order dated 20.3.1959 (Annex.9) in the revenue records, it is clearly mentioned that the land is cultivated by Mandir Aimata itself and in the name of column pertaining to cultivator (krashak) Makbuja Khud is mentioned. The name of the Krashak has been changed by the Assistant Record Officer vide order dtd.20.3.1959 without making Mandir Aimata as party and solely on the basis of consenting written statement (iqbali Jawabdawa of respondent No.8). It is further submitted that at the time when the application (Annex.8 and Annex.R6/1) was made before the Assistant Record Officer, Pali, Shri Ghanshyam Singh was a minor aged about 7-9 years and it is impossible to believe that he was cultivating the land in question.
h) In the year 973, Shri Ghanshyam Singh has filed a suit under Section 88 of Rajasthan Tenancy Act and prayed for declaration of the land of khasra No.1422, 1421, and 1420 as his khatedari. In the said suit also, Mandir Aimata was not made party and the respondent SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 33/43 No.8 only Madho Singh and the State of Rajasthan were made parties. The suit was field on 19.2.1973 and was decreed on 24.4.1973. The respondent No.8 has filed a consenting written statement in the said suit and the State of Rajasthan has not filed any reply. It is very interesting that in the said suit petitioner Ghanshyam Singh has not deposed before the Court but his father Prithvi Singh has given his statement on 21.3.1973 (Annex.R6/3 page 221). In the said statements, Prithvi Singh has claimed that his son Ghanshyam Singh has purchased 327 bighas and 16 biswas of the land from the respondent No.8 Madho Singh which was his personal jagir. In the year 1983, Prithvi Singh father of petitioner and Chetan Prakash brother of the petitioner have filed a suit funder Section 88 and 53 of the Rajasthan Tenancy Act before the SDO, Pali (Annex.R6/4 page 223). in the said suit, they claimed that the land in question is ancestral property of them, but the same has wrongly been recorded only in the name of Ghanshyam Singh whereas they are having share in the land. In the said suit one of the disciple of Mandir Aimata has moved an application for being impleaded as party on 22.5.1984 and on the very next date on 31.5.1984 Prithvi Singh and Chetan Prakash have withdrawn the said suit. In such SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 34/43 circumstances, it is clear that every time the petitioner and his relatives are taking different stands regarding the land in question and have grabbed the land in connivance with respondent No.8 who was the trustee of the Mandir Aimata.
i) The petitioner cannot be declared as khatedar of the land in question either by filing of application before the Assistant Record Officer or by filing a suit under Section 88 of the Rajasthan Tenancy Act, 1955. The petitioner could get a declaration as khatedar of the land in question by making an application under Section 15 of the Rajasthan Tenancy Act, 1955.
j) During the course of arguments, it was argued on behalf of the petitioners that the land pertaining to khasra No.1420, 1421 and 1422 has wrongly been entered in th name of Mandir Aimata and in fact the said land was personal land of respondent No.8 Madho Singh. It is submitted that at no point of time Shri Madho Singh has ever raised the said objection before any of the authorities and has never claimed that the land of khsra No.1422, 1421 and 1420 has wrongly been recorded in the name of Mandir Aimata and the said land is SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 35/43 belonging to him only.
So in all these circumstances, it is clear that the land in question belongs to Mandir Aimata and the Board of Revenue after considering all these facts and circumstances, has rightly allowed the application under Section 221 of the Rajasthan Tenancy Act preferred by the respondent No.6 and Jamna Ram and has not committed any illegality and there is no force in the writ petition and therefore, it is most respectfully prayed that the same may be dismissed."
11. As against this, the learned counsel for the petitioners in their written submissions made to this court urged that : --
(a). That it is not in dispute that the aforesaid land was Jagir land of Bader Bilara resumed ion 1.7.1955 and as hereinabove submitted the Jagirdar of Bader Bilara i.e. Madho Singh has not produced any order of the competent authority under the Jagir Act that the aforesaid land was his khudkasht land but has admitted the petitioner as tenant of the disputed land before the Assistant Land Record Officer (Annex.9 page 92 to 95).
SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 36/43 As per the judgment delivered by Hon'ble Supreme court in B.O.R. For Rajasthan V/s Rao Baldev Singh and ors. reported in AIR 1968 SC 898, so far as determinatino of the land i.e. property being Khudkasht is within exclusive jurisdiction of Jagir Commissioner, however, under Sec. 125 and 136 of the Land Revenue Act which relates to mere entries in the revenue records i.e. Annual register, as well as record of rights, the recording of entries stand on different footings.
(b). After perusal of the aforesaid laws Jagir Resumption Act, 1952 and the notifications issued thereunder (at page 465 S.No.24 Vol.16), not a single religious Jagir was resumed prior to 1.11.1958, admittedly Madho Singh Deewan's Jagir of Bader Bilara was resumed on 1.7.1955 as being his personal Jagir, not the Jagir of Religious Deity Aimata Ji Bader Bilara and on the date of resumption aforesaid Jagir was under
management of the Court of Wards under the guardianship of Govind Singh Ji appointed of Court of Wards. Hence aforesaid Jagir was personal Jagir of Madho Singh Deewan.
It is relevant to mention her that as per SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 37/43 defenating Jagirdar in Sec.3(1) Court of Wards Act, 1923 the holding of religion Jagir like Mafi Doli etc. are not Jagirdar for the purposes of Court of Wards taking over management of such Jagir's only which are held by natural person and juristic person. Therefore, deity Jagir's are not taken voer by Court of wards since Madho Singh was minor when his Jagir including Bera Rodawa was resumed from 1.7.1955 vide order dt.3.1.1958 while it was under Court of Wards of Jagir. Had Bera Rodawa been the Jagir Deity (Aimataji) could not be resumed on 1.7.1955 and it could be resumed only in subsequence years.
(c) The land in dispute, known as and in the name of Bera Rodawa was part and partial and Jagir land of Madho Singh Deewan, which was resumed with effect from 1.7.1955. In pursuant to order of Jagir Commissioner dated 3.1.1958, which is clearly established by document Annexure 6 dated 12.9.1958 (order of Jagir Commissioner page 84-85) describing Bera Rodawa as part of Jagir of Madho Singh which was resumable, the then Jagirdar Madho Singh had received compensation vide Annex.4A at page 69-75, aforesaid property Bera Rodawa is shown at serial No.5 at page 74.
SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 38/43 The State Government had legislated the Jagir Lands Resumptions (Validation) Act, 1957 by which validation of resumption of Jagirs of certain Jagir lands were validated and shall be deemed to be validly resumed on the appointed date for resumption, further more by another legislature the Rajasthan Jagirdars Compensation and Rehabilitation Grants (Final Orders Validation) Act, 1959, all decisions given by the Officers for assessing the compensation for Jagir lands has been validly made by them and no such final order shall be liable to be called in question in any tribunal or Court. As such in entries made in Annex.4A regarding Bera Rodawa are conclusive, regarding the nature of Jagir land, as being resumed on 1.7.1955.
Here it is further relevant to submit that the Bera Rodawa was further identified in the judgment Annex.9 passed by the Assistant Land Records Officer in which Bera Rodawa has been clearly mentioned as and identified. As such the petitioner was given Khatedari rights validly because the then Jagirdar had admitted him as a tenant.
It is further relevant to submit that in SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 39/43 pursuance of order dt.20.3.1959 order passed by the Assistant Land Record Officer, the petiinoer's name was entered in Parcha Lagan Annexure 10 at page 96 and 97 in which petitioner's name was entered as "Krishak" Khatedar tenant, thereafter the name of the petitioner was continued as khatedar tenant in subsequent record of rights (Jamabandis) copy of record of rights of Samvat years 2019 on record as Annexure R6/11 at page 241, in which petitioner's name was shown as khatedar tenant and in the column of Bhogta i.e. Jagirdar name of Aimataji Bader Bilara Ba Atmam Mahant Hari Singh was written, but in subsequent year 2027 to 2031 record of rights Anenxure 10B at page 100, the entry of Aimata Bader Bilara Ba atmam mahant Hari Singh was wrongly entered in the column of Khatedar alongwith Ghanshyam Singh S/O Prithvi Singh khatedar - tenant and in the column of Bhogta State of Rajasthan was written therefore, petitioner had to file suit for correction of entries in the record of rights under Section 88 of Rajasthan Tenancy Act which was allowed vide order dated 24.4.1973 Annexure 13 page 104 to 106 and it was held as per exhibit P3 that this is Jagir land of Madho Singh Ji and not of Aimataji.
SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 40/43
12. In the opinion of this court, from the aforesaid contentions and arguments of the learned counsels and perusal of the impugned orders of the Board of Revenue and other relevant documents, this Court is of the opinion that the learned Board of Revenue has decided the application under Section 221 of the Act in rather hasty manner without referring to the relevant documents and record of the case produced by either side. In the absence of order dtd.3.1.1958 passed by the Jagir Commissioner though not made available for perusal by this Court and the same appears to have not been perused even by the Board of Revenue as the impugned order merely refers to it and disbelieved though it was available as Ex.-3 of the revenue suit on which decree dated 24.4.1973 was passed, it raises a doubt as to how without identification of the land in question being personal jagir of Deewan Madho Singh's ancestors, and assuming it to be not so, it could be taken away from them and held to be belonging to deity Aimataji.
13. Since the petitioner has contended that said Deewan Madho Singh's ancestors held three types of land, namely, their personal jagir including Bera Rodawa land in question and also as manager of Deity Aimataji in which upon Tenancy Act coming into force in the year 1955, those who were cultivating the land, their names were to be entered as khatedar tenants and therefore, the petitioner had applied for correction of entries in the Revenue Record SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 41/43 for his name to be included as khatedar tenant and it was so corrected by the ARO by order dtd.20.3.1959 and without coming to a firm conclusion that the land in question now claimed to be vesting in the petitioner as khatedar - tenant and Shakti Grih Nirman Society another petitioner upon sale of it being the same land which originally and throughout belonged to deity Aimata only, to the exclusion of personal Jagir of ancestors of Deewan Madho Singh, how the learned Board of Revenue could set aside the decree dtd.24.4.1973 which only reconfirmed and declared the tenancy rights of the petitioner on the basis of Jagir having been resumed under the Jagir Resumption Act of 1952 on 1.7.1955.
14. Inherent and wide powers conferred under Section 221 of the Tenancy Act could not be lightly invoked and disposed of to set aside a validly granted decree in a suit by the competent Court of Additional Collector which became final, without resort to appellate and revisional channel provided under the Act. The power of superintendence and control over the Revenue Courts of course including over the Court of the Assistant Collector also, is the residuary power and does not confer the Board of Revenue with power to set aside the decree granted by the Assistant Collector in a light manner. Wider the power, greater is the circumspection required.
15. This Court is not satisfied as to how without going into SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 42/43 the impact of Jagir Resumption Order dtd.3.1.1958 and identifying that land to come at the conclusion that the same land was the land belonging to the deity Aimata ji or not, the Board of Revenue could set aside that decree dated 24.4.1973 which prima facie related to the land of personal jagir of ancestors of Deewan Madho Singh through whom not only the present petitioner Ghanshyam Singh, but purchaser Shakti Grih Nirman Cooperative Society claims.
16. Therefore, this Court is inclined to remand the matter back to the Board of Revenue for decision afresh in accordance with law after going into the entire evidence once again and arrive at appropriate and reasoned finding of facts. The Board being final adjudicating authority under the Rajasthan Tenancy Act as well as Rajasthan Land Revenue Act, is bound to assign reasons for any finding which it gives. Even though it is an order in exercise of powers under Section 221 of the Act, one cannot escape the fact that in the present case, an earlier application seeking reference against that very decree of the Additional Collector under Section 232 of the Act had failed. That should have given the finality to the decree and rights of the petitioner. However, since it also cannot be disputed and denied that the Board of Revenue has power of general superintendence under Section 221 of the Act, this Court without saying that Board of Revenue had no jurisdiction to pass the impugned order rests content with setting aside the impugned orders SBCWP NO.330/1996 - GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 :
JUDGMENT DTD.:24.9.2008 43/43 dtd.1.11.1994 and 30.5.1995 passed by the Single Bench and Division Bench of the Board of Revenue, Annex.21 and 23 respectively with a direction to the Board of the Revenue to decide the whole case again after going through the relevant documents, orders and evidence of contemporary period including the order of the Jagir resumption dtd.3.1.1958 and such other evidence which either side may even now present before it and also impact of relevant statutes and case laws and then decide the case again de novo.
17. Accordingly these writ petitions are allowed and the impugned orders dtd. 1.11.1994 and 30.5.1995 (Annex.21 and 23) are quashed and set aside and the Board of Revenue is directed to decide the case again afresh preferably within a period of six months from today. It is needless to say that party aggrieved of the said order shall be at liberty to approach this Court by way of a fresh writ petition. No order as to costs.
[ DR. VINEET KOTHARI ], J.
ss/-