Bhanwaru Khan and Others vs State of Rajasthan and Others

Sangeet Lodha, J.

This petition is directed against judgment and decree dated 16.2.12 passed by the Board of Revenue Rajasthan, Ajmer, whereby a second appeal preferred by the respondents-defendants against the judgment and decree dated 24.5.02 passed by the Revenue Appellate Authority (RAA), Bikaner, affirming the judgment and decree dated 30.7.91 passed by the Assistant Collector, Sujangarh, decreeing the suit for declaration, partition and correction of entries in the revenue record preferred by the petitioners-plaintiffs against the respondents-defendants in respect of the agriculture land ad measuring 3 bighas 19 biswas comprising khasra No. 52 (new khasra No. 163), has been allowed and accordingly, the judgment and decree passed in favour of the petitioners-plaintiffs stands set aside.

The relevant facts are that Jamal Khan S/o. Jeevan Khan filed a suit for declaration and correction of entries in respect of the agriculture land measuring 3 bighas 19 biswas comprising khasra No. 52 (new No. 163) inter alia against Suleman Khan, Inayat Khan and Ibrahim Khan, sons of Alladin, the respondents No. 5 to 7 herein, in the court of Sub Divisional Officer and Assistant Collector, Ratangarh.

As per the averments made in the plaint, the land in question was in cultivatory possession of the plaintiff and the family of defendants since the time of their father-Jeevan Khan. It was averred that Jeevan Khan during his lifetime divided the land into two parts; southern portion measuring 1 bigha 19 biswas was given to father of defendant No. 1 to 3 and north portion of 2 bighas was given to younger son, plaintiff-Jamal Khan, the father of the petitioners herein. It was averred that Jamal Khan was old and illiterate and therefore, Alladeen Khan and after his death, defendant No. 1 to 3 got the entire land 3 bighas and 9 biswas mutated in their names. It was stated that Jamal Khan came to know about this fact only on 7.5.85 when the defendants No. 1 to 3 tried to encroach upon the portion of the land in possession of Jamal Khan. The defendants No. 1 to 3 refused to get the revenue entries corrected therefore, the suit was filed by Jamal Khan as aforesaid. Jamal Khan died on 5.2.92 and therefore, his sons Bhanwaroo Khan, Yasin Khan, Peeru Khan and Ahmed Khan were substituted as plaintiffs in place of Jamal Khan. Bhanwaroo Khan (since deceased) is represented by his legal representatives petitioners No. 1/1 to 1/8.

The suit was contested by the defendants No. 1 to 3 taking the stand that Jeevan Khan never partitioned the land and nor the possession of 2 bighas land was ever given to Jamal Khan. It was averred that the land in question was always recorded as khatedari land of defendants'' father Alladeen Khan and only in the Jamabandi of Samvat 2018 to 2020, 2 bighas land was shown to be in cultivatory possession of Jamal Khan. It was averred that on the basis of the said entry, khatedari rights were never conferred upon the legal heirs of Jamal Khan.

On the basis of the pleadings of the parties, the trial court framed the issues and parties led their evidence.

After due consideration of the evidence on record, the suit preferred by the plaintiff was decreed by the court of Assistant Collector, Sujangarh vide judgment and decree dated 30.7.91 and the legal heirs of Jamal Khan, the petitioners herein, were directed to be recorded as khatedar tenant of 1/2 portion of the land and the land was directed to be partitioned by meets and bounds. Aggrieved thereby, the respondents-defendants preferred an appeal before the RAA, Bikaner, which stood dismissed vide judgment and decree dated 24.5.02.

Aggrieved thereby, the second appeal preferred by the respondents-defendants has been allowed by the Board of Revenue by impugned judgment and order dated 16.2.12 and accordingly, the suit preferred by the petitioners-plaintiffs stands dismissed. Hence, this petition.

Learned counsel for the petitioners contended that Board of Revenue has seriously erred in holding that merely on the basis of two entries in the revenue record, khatedari rights cannot be conferred upon the plaintiffs. Learned counsel submitted that the Assistant Collector had considered the Jamabandi of Samvat 2014 wherein Alladeen Khan has been shown as Khudkast over 1 bigha and 19 biswas of land comprising khasra No. 52 whereas, remaining 2 bighas of land has been shown in cultivation of Jamal Khan. Learned counsel submitted that from bare perusal of the documents on record, it is manifestly clear that Alladeen Khan was jagirdar having khudkast land of 1 bigha and 19 biswas whereas remaining 2 bighas land was in cultivation of Jamal Khan. Learned counsel submitted that after resumption of jagir, the khudkast land remained with the jagirdar as khatedar whereas, by virtue of provisions of Section 9 of the Resumption of Jagir Act, 1952 (for short "the Act of 1952"), the cultivator of the land become khatedar tenant in respect of such land. Learned counsel submitted that the findings arrived at by the Board of Revenue ignoring this aspect of the matter is ex facie perverse. Learned counsel submitted that the Board of Revenue has seriously erred in observing that the entries in the Jamabandi as well as in the Girdawari of Samvat 2014 to 2017 and khasra girdawari of Samvat 2018 without there being order of any competent authority or court, has no legal sanctity. Learned counsel submitted that the entries in Jamabandi of 2014 manifestly shows that plaintiff Jamal Khan and Alladeen were in cultivatory possession of the land since the time of their father and therefore, the land being ancestral land, 1/2 share of the petitioners therein, cannot be disputed.

On the other hand, the counsel appearing for the respondents submitted that the case set by the petitioners is based on contradictory and inconsistent pleas. Learned counsel submitted that on the one hand, the petitioners have claimed 1/2 share in the land claiming it to be ancestral land alleged to have been inherited by Jamal Khan and Alladen from their father Jeevan Khan and on the other hand, it is claimed that the land in question was jagir land of Alladeen and Jamal Khan was in cultivatory possession of 2 bighas of land and thus, he had acquired khatedari rights over the land in question by virtue of provisions of Section 9 of the Act of 1952. Learned counsel submitted that it is a matter of record that the land in question was the jagir land of Alladeen and after coming into force of the Act of 1952 at the time of settlement, the land was recorded as khatedari land of Alladeen Khan. Learned counsel submitted that the lagaan was also paid by Alladeen in Samvat 2011 to 2013 and thereafter. Learned counsel submitted that it was never a case of the petitioners before the trial court that the land in question being jagir land in the hands of Alladeen, the plaintiff Jamal Khan being in cultivatory possession of 2 bighas of land, had acquired khatedari rights by virtue of provisions of Section 9 of the Act of 1952. Learned counsel submitted that the findings arrived at by the trial court, affirmed by the first appellate court, ignoring the factual position emerging from the record, were ex facie capricious and perverse and thus, the Board of Revenue has committed no error in reversing the findings arrived at as aforesaid. Learned counsel submitted that after objective consideration of the material on record, the judgment and decree passed by the Board of Revenue does not suffer from any infirmity or illegality so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

I have considered the rival submissions and perused the material on record.

Indisputably, as per the Jamabandi of Samvat 2011 to 2013, Samvat 2028 to 2047 and khasra girdawari of Samvat 2013, 2022 to 2025 and 2026 to 2029, the land in question was recorded as khatedari land of Alladeen. It is not in dispute that in Jamabandi of 2014, the land is recorded in the name of Alladeen as Jagirdar, however, in respect of 2 bighas land in the column of ''Kashtkar'', the name of Jamal Khan has been shown. Suffice it to say that the khatedari rights over the land in question were sought by the plaintiff-Jamal Khan solely on the basis of two isolated entries recorded in Jambandi of Samvat 2014 and Girdawari of Samvat 2018 to 2020, wherein also he has not been shown as khatedar of the land. There was nothing on record to show that the land in question was ancestral land inherited by the plaintiff-Jamal Khan and defendants'' father Alladeen from their father Jeevan Khan and therefore, on the basis of two entries made in the revenue record as aforesaid, the plaintiff-Jamaldeen could not have claimed khatedari rights over the land in question. It is not disputed before this court that in the plaint filed, the petitioners have not claimed khatedari rights over the land in question being in cultivatory possession of the jagir land at the time of coming into force of the Act of 1952 and thus, the contention raised by the petitioners before the Board of Revenue claiming khatedari rights over the land in question by virtue of Section 9 of the Act of 1952, has rightly been rejected. Suffice it to say that on the basis of the material on record, the findings arrived at by the Board of Revenue that the land in question is khatedari land of Alladeen exclusively and the plaintiffs have no right to claim khatedari rights over the land in question treating it to be either ancestral or jagir land, do not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

In the result, the petition fails, it is hereby dismissed. No order as to costs.