Janki Lal and Others vs The Revenue Board Rajasthan and Others

Alok Sharma, J—The petitioners-plaintiffs (hereinafter ''the plaintiffs'') challenge the judgment dated 12-12-2000 passed by the Board of Revenue Ajmer (hereinafter ''the Board'') dismissing their second appeal. Also under challenge is the order dated 1-3-2001, whereby the plaintiffs'' review petition against the judgment dated 12-12-2000 was dismissed.

The facts of the case are that the respondent-defendant Gomda (hereinafter ''the defendant''), a scheduled caste, was at the relevant time the recorded tenant of several bighas in khasra No. 189/15 and 209/3.03 situate in village Kadayanohar Tehsil Chhabra. Out of the aforesaid land, the plaintiffs purchased 2 bighas as detailed in the plaint (hereinafter ''the suit land'') from the defendant through a registered sale-deed dated 22-5-1974 for a consideration of Rs. 13000/-, and came into possession. In the year 1986 the plaintiffs filed a suit for declaration and permanent injunction in the court of Sub Divisional Magistrate, Chhabra, District Baran against the defendant alleging that the defendant was threatening to forcibly take back the possession of the suit land. Alternatively adverse possession of the suit land was also claimed since after execution of the registered sale-deed on 22-5-1974 the plaintiffs were in possession of the suit land for over twelve years. The suit was opposed.

Considering the pleadings and evidence of both the parties, the trial court vide judgment dated 7-7-1993 concluded that the sale of the suit land through registered sale-deed 22-5-1974 by the defendant to the plaintiffs was hit by Section 42(b) of the Rajasthan Tenancy Act, 1955 (hereinafter ''the 1955 Act'') as the vendor was of "Nayak" caste--a scheduled one as notified and the purchaser not so. Therefore the sale deed dated 22-5-1974 was null and void. The Tehsildar was directed to initiate proceedings under Section 175 of the 1955 Act for dispossessing both the plaintiffs and the defendant from the suit land.

The judgment dated 7-7-1993 passed by the trial court was assailed both by the plaintiffs (411/1994) and the defendant (205/1993) in appeals before the Revenue Appellate Authority Kota. The plaintiffs aggrieved of the dismissal and the defendant of the action of dispossession for reason of the unauthorised and illegal sale of his khatedari rights. Vide judgment dated 11-7-1997 appeals filed by both the plaintiffs and the defendant were dismissed.

The plaintiffs then preferred a second appeal before the Board, which too vide the impugned judgment dated 12-12-2000 dismissed it affirming the judgments dated 11-7-1997 and 7-7-1993. The review petition filed by the plaintiffs also came to be dismissed on 1-3-2001 holding that the issue of defendant''s caste "Nayak" allegedly not being a scheduled caste but an "Other Backward Class" (OBC) was considered and decided on the basis of notification dated 20-9-1976.

Heard counsel for parties and perused impugned judgments passed by the courts below.

I am of the considered view that the impugned judgments do not suffer from any perversity or misdirection in law. The courts below have rightly held that at the time of execution of the sale deed dated 22-5-1974 by the defendant Gomda, since deceased and now represented through his legal representatives in favour of the plaintiffs, he was a member of the "Nayak" a notified scheduled caste. Consequently the sale-deed was hit by Section 42(b) of the 1955 Act, which reads as under:-

"42. General restriction on sale, gift & bequest-

the sale, gift or bequest by a khatedar tenants of his interest in the whole or part of his holding shall be void, if

(a) xxx-deleted w.e.f. 11-11-1992

(b) such sale, gift or bequest is by a number of Scheduled Caste in favour of a person who is not a member of the Scheduled caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe."

Part XV- Rajasthan in schedule I annexed to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 indicates at Serial No. 57 that the caste "Nayak" is a scheduled caste in the State of Rajasthan. The defendant Gomda admittedly belonged to Nayak caste as established from the evidence on record. Consequently the sale-deed dated 22-5-1974 executed by him was void ab initio and completely null and void. There is no force in the submission of the counsel for the plaintiffs that the defendant''s caste "Nayak" was included in the OBC category, at the time relevant to the registered sale-deed dated 22-5-1974. No evidence of any probative worth has been placed on record on this count. Contrarily evidence otherwise obtains.

Reliance placed by the counsel for the plaintiffs on the judgment in case of Ram Karan Vs. State of Rajasthan, (2014) AIRSCW 4181 : (2014) 8 JT 40 : (2014) 8 SCALE 233 : (2014) 8 SCC 282 to contend that proceedings cannot be initiated under Section 42, 175 of the 1955 Act after inordinate delay, is of no avail as the facts of this case are wholly different from that obtaining before the Hon''ble Apex Court. Proceeding under Section 175 of the 1955 Act can be taken in terms of Section 214 read with Entry 66 of Schedule III appended to 1955 Act upto a period of 30 years from the date of void a transaction in the cross-hairs of Section 42(b) of the 1955 Act resulting from a sale of khatedari rights by a Schedule Caste person to a non scheduled caste person. It is also on record from the judgment of the Sub Divisional Officer Chhabra rendered on 7-7-1993 that the erstwhile kahatedar Gomda had taken proceedings under Section 183 of the 1955 Act against the plaintiffs for their ejectment from the suit land. In the circumstances no question of the plaintiff''s khatedari resulting from adverse possession or delay to the benefit of the plaintiff can arise. Aside of aforesaid, it is inconceivable that the prohibition of Section 42(b) of the 1955 Act could be circumvented by resort to the plea of adverse possession.

Mr. Garg''s reliance on the Tehsildar''s certificate dated 24-9-1998 purportedly relying on the notification dated 6-8-1994 declaring "Nayak" caste to be an "OBC" is of no avail. For one, the said certificate has not been issued on an application of Gomda Nayak and it is extremely odd that it could be so issued with regard to Gonda Nayak at the instance of a third party. Further a certificate of caste based on a purported notification dated 6-8-1994 has no bearing on decided Gomda Nayak''s caste when the registered sale deed was executed on 22-5-1974 nor can it override the notification dated 20-9-1976 including "Nayak" caste as a scheduled caste. Further even the purported notification dated 6-8-1994 was not filed before the courts below or for the matter before this court.

I, am thus of the considered view that the courts below have taken a correct and just view in their impugned judgments and decree. Consequently, there is no occasion to interfere in this writ petition. The writ petition is therefore dismissed.