Juglal and Others vs The Board of Revenue and Others

Sangeet Lodha, J.�This writ petition is directed against the order dated 12.10.98 of the Board of Revenue Rajasthan, Ajmer whereby a second appeal preferred by the respondents No. 4 and 5 herein under Section 224 of the Rajasthan Tenancy Act, 1955 ("the Act") against the judgment and decree dated 18.10.95 passed by the Revenue Appellate Authority ("RAA"), Hanumangarh affirming the judgment and decree dated 13.3.91 of Sub-Divisional Officer ("SDO"), Nohar dismissing the suit preferred by the respondents-plaintiffs, has been allowed and accordingly the respondents-plaintiffs have been declared Khatedar of the suit land and the petitioners-defendants are directed to be ejected.

The relevant facts are that the respondents-plaintiffs preferred a suit under Section 88 r/w Section 183 of the Act against the petitioners-defendants with the averments that the land admeasuring 50 bighas and 19 biswas comprising old Khasra No. 260, corresponding new Khasra No. 605 measuring 34 bighas of Village Bad Virana was Khatedari land of their father Kanaram as per Jamabandi of the Samvat year 2012 to 2015. After the death of Khatedar Kanaram in Samvat 2015, the land was being looked after by their mother Kheti. Both their father and mother had been getting the land cultivated through Khumanaram, father of the petitioners herein. It was averred that their mother Kheti expired 10 years prior to the filing of the suit on 4.9.98. it was alleged that the land has not been vacated by the petitioners and therefore, they had become trespasser. Accordingly, it was prayed by the respondents-plaintiffs that they may be declared Khatedars of the suit land and the petitioners-defendants may be ejected. That apart, it was prayed that the names of the petitioners-defendants appearing in the record of rights as Khatedars be cancelled and the land may be recorded in their name in the revenue record.

The suit was dismissed by the SDO, Nohar vide judgment and decree dated 13.3.91 holding that the land was never in cultivatory possession of the plaintiffs'' mother and on the basis of the documents produced, her right over the land in question is not proved. Aggrieved thereby, the respondents-plaintiffs preferred an appeal before the RAA, Hanumangarh. The RAA declined to interfere with the judgment and decree passed by the SDO and accordingly, the appeal was dismissed vide judgment and decree dated 18.10.95. Aggrieved thereby, the respondents-plaintiffs preferred a second appeal before the Board of Revenue Rajasthan, Ajmer which stands allowed by the impugned judgment dated 12.10.98 and the suit preferred by the respondents-plaintiffs has been decreed as prayed for. Hence this writ petition.

Learned counsel for the petitioners submitted that the Board of Revenue has seriously erred in interfering with the concurrent findings arrived at by the Courts below after due appreciation of the evidence on record. Learned counsel submitted that from the documentary evidence produced by both the parties, it was established beyond doubt that the land in question was in physical and cultivatory possession of the petitioners and their father Khumanaram. Learned counsel submitted that in Samvat 2000, the land was in cultivatory and physical possession of the petitioners'' father and he was recorded as Gair Khatedar of the land in the revenue record. Learned counsel submitted that for last 60 years, the land remained in possession of the petitioners and their father and they paid the rent, and therefore, for all intent and purposes, they have to be treated as Khatedar tenant of the land by operation of law. In this regard, learned counsel has relied upon a decision of this Court in the matter of Balveer Singh and Others Vs. Board of Revenue and Others, and a decision in "Puransingh and ors. v. State of Rajasthan and Another", 1966 (16) ILR Rajasthan, 1105. Learned counsel submitted that if the possession of the land is retained after expiry of the lease or sublease, a tenant holding over or a Gair Khatedar becomes Khatedar tenant and the suit for ejection against him must fail. Learned counsel submitted that admittedly Smt. Kheti widow of Kanaram executed a deed in favour of petitioners'' father Khumanaram in Samvat Year 2016 and the suit was filed in the year 1989 i.e. after a lapse of more than 35 years and therefore, the same was barred by limitation. Learned counsel submitted that the land in question was in possession of the petitioners and their father for last more than 50 years, but no attempt was made by the father or mother of the respondents No. 4 and 5 to get the possession back and therefore, the protection under Section 46 of the Act was not available. Accordingly, learned counsel submitted that the impugned judgment passed by the Board of Revenue without appreciating the law applicable in correct perspective is not sustainable in the eyes of law.

On the other hand, the counsel appearing for the respondents supporting the impugned judgment passed by the Board of Revenue submitted that the land was in possession of the petitioners'' father and thereafter the petitioners, but after the death of Smt. Kheti, the possession was illegal and without authority of law and therefore, the petitioners have rightly been treated as trespassers over the land in question. Learned counsel submitted that in terms of provisions of Section 5(44) of the Act, a person who takes or retains possession of the land without authority or should prevent another person from occupying the land duly let out to him, is treated to be trespasser. Learned counsel submitted that though the possession of the petitioners'' father till the death of Smt. Kheti was permissible but after her death, they become trespasser over the land in question and therefore, they have rightly been directed to be evicted. Learned counsel submitted that the Division Bench of the Board of Revenue has rightly rejected the plea of adverse possession keeping in view the provisions of Section 46(d) of the Act which provides special protection to the widows. Accordingly, learned counsel submitted that the respondents'' father being Khatedar tenant of the land, the khatedari rights of the respondents after the death of their father and mother shall not stand extinguished merely because the petitioners'' father remained in permissive possession of the land for all these years. Accordingly, it is submitted that the impugned judgment and decree passed by the Board of Revenue taking into consideration the totality of the facts and circumstances of the case and the law applicable does not warrant any interference by this Court in exercise of its supervisory jurisdiction.

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

It is a common ground between the parties that in the Jamabandi of Samwat 2012, the respondents'' father was recorded as Khatedar tenant of the land and the petitioner No. 1 Juglal S/o Khumanaram was shown to be in cultivatory possession of the land admeasuring 35 bighas and one Shri Birbal S/o Chanan was shown to be in cultivatory possession of land measuring 15 bighas 19 biswas. Obviously, after the death of Kana, the land should have devolved on his heirs, his widow Smt. Kheti and the two daughters the respondents No. 4 and 5 herein, however, no mutation was attested in this regard and the land continued to be recorded in the name of Kana till the names of the petitioners appeared as Gair Khatedar during the settlement operation.

It is pertinent to note that since the land was being cultivated by the defendants even after the death of Kana in Samwat 2015 and therefore, after his death, they procured an agreement in writing from Smt. Kheti, the widow of Late Shri Kana wherein it was specifically mentioned that she had given the land to Juglal S/o Khumanaram for cultivation. By virtue of provisions of Section 46(d) of the Act, the restriction imposed by Section 45 on letting by a holder of Khudkast and on subletting by a tenant was not operative till the death of Smt. Kheti, the widow of Late Shri Kana, but after her death, the petitioners could not have remained in cultivatory possession of the land on the strength of agreement executed in their favour by Smt. Kheti during her life time. Moreover, Sub-Section (2) of Section 46 of the Act specifically provides that a lease or sublease which would have been invalid but for the provision of Sub-Section (1) of Section 46 shall not remain in force for more than two years after the lessor dies or cease to come within any of the descriptions specified therein. In this view of the matter, Smt. Kheti having expired around the year 1979, the agreement alleged to have been executed by her in favour of the petitioners came to an end by operation of law in the year 1981 and thereafter, the possession of the petitioners over the land being without authority of law, has rightly been treated by the Board of Revenue to be that of trespassers. The contention of the learned counsel for the petitioners that the agreement having been executed in their favour by Smt. Kheti in the Samvat year 2016, the suit filed after lapse of about 35 years was barred by limitation is also devoid of any merit inasmuch as by virtue of provision of Section 46(2) of the Act, the agreement executed by Smt. Kheti came to an end in the year 1981 and thereafter the suit preferred by the respondents-plaintiffs in the year 1989 i.e. within 12 years was well within limitation. The petitioners being in permissive possession of the land in question, by no stretch of imagination, their possession can be considered to be adverse so as to confer title in their favour. Moreover, the petitioners had never claimed title over the land in question by adverse possession and therefore, the contention sought to be raised by the petitioners in this regard before this Court cannot be entertained.

Coming to the alleged possession of the petitioners'' father over the land in question since Samvat 2000, suffice it to say that no evidence whatsoever was produced establishing the claim and therefore, the findings arrived at by the Board of Revenue in this regard cannot be said to be capricious or perverse.

In view of the discussion above, the decisions of this Court relied upon by the counsel appearing for the petitioners do not help them in any manner.

Thus, the impugned judgment and decree passed by the Board of Revenue does 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.

The writ petition, therefore, fails. It is hereby dismissed. No order as to costs.