Kamal Singh and Others vs The Board of Revenue and Others

M.N. Bhandari, J.�By this writ petition, a challenge is made to the orders dated 17.10.1994 passed by the Collector, Bharatpur, 14.12.2012 & 25.04.2013 passed by the Board of Revenue.

Out of three orders under challenge, order dated 17th October, 1994 was passed by the Collector, Bharatpur to refer the case to Board of Revenue. The other two orders were passed by the Board of Revenue on reference and review.

Learned counsel for the petitioner/s submits that impugned orders have been passed in ignorance of the fact that a suit was decreed in favour of the petitioner/s by the SDO Court followed by dismissal of appeal by the Revenue Appellate Authority in the hands of the private respondent/s. The reference of case on account of decree passed by the SDO Court and acceptance of it by the Board of Revenue was without considering that the order of the SDO Court merged in the order of Revenue Appellate Authority, thus no reference was either permissible or made against the order of Revenue Appellate Authority. In view of above, the reference so as its answer by the Board of Revenue, are illegal.

I have considered the only argument raised by the learned counsel for the petitioner/s to challenge the order of reference so as the order passed by the Board of Revenue. The reference of case by the Collector is in view of sale of land from Scheduled Caste and Scheduled Tribes candidate to a general caste candidate in violation of Section 42 of Rajasthan Tenancy Act, 1955 (for short "Act of 1955"). As per Section 42 of the Act of 1955, any sale, gift and bequest from SC and ST candidate to other caste candidate is void. Learned counsel submits that no sale, gift or bequest took place so as to refer Section 42 of the Act of 1955. In fact, transfer of rights are in pursuance of the compromise decree passed by the SDO Court and up-held by the Revenue Appellate Authority.

To appreciate both the arguments, reference of Section 42 and 42(b) are relevant, thus quoted hereunder:

"42. General restrictions on sale, gift and bequest - The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void, if -

(a)...........

(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."

The perusal of Section 42 of the Act of 1955 shows general restrictions on sale, gifts and bequest of any interest of Khatedari rights in whole or part by the SC/ST candidate in favour of a candidate of other caste. It is, no doubt true that a suit was preferred by the petitioner/s and was decreed by the SDO Court but then the copy of the plaint and the order passed in the said suit has not been placed on record to show that claim therein was not based on a sale, gift or bequest of the property. Learned counsel for the petitioner/s submitted that decree therein was based on compromise.

I find that if argument is raised to challenge the reference so as the order of Board of Revenue on the ground that transfer was not as an outcome of sale, gift or bequest, the petitioner should have placed on record copy of the plaint so as the order passed on the suit but both are missing herein, thus adverse presumption has to be drawn. The plea of the nature raised herein was also not raised before the Court below in specific term. In the background aforesaid, it cannot be said that transfer of land from Scheduled Caste and Scheduled Tribes candidate/s to other caste was not out of sale, gift or bequest. Accordingly, first argument raised by the learned counsel for the petitioner/s cannot be accepted.

The other ground is regarding the order passed by the SDO Court followed by dismissal of appeal by the Revenue Appellate Authority.

The aforesaid issue has been considered by the Collector and therein, it was found that respondent/s could not produce the order passed in appeal by Revenue Appellate Authority. The learned counsel for the petitioner was asked to refer the order passed in appeal by the Revenue Appellate Authority but the copy thereof has not been placed on record. The only two documents have been shown to indicate the decision on appeal. The aforesaid is not sufficient to draw any inference in favour of the petitioner/s because copy of the order passed on appeal was required to be placed on record. The initiation of proceedings for reference of case was on account of a decree, which was not permissible in view of Section 42 and 42(b) of the Act of 1955. The transfer of land by way of sale, gift or bequest is not permissible from Scheduled Caste and Scheduled Tribes to other caste and is void. In the background aforesaid, not only the reference was rightly made by the Collector but the Board of Revenue had rightly answered the reference holding that transfer of land through a compromise decree was void and not permissible. The argument that there was no sale, gift or bequest so as to apply Section 42 of the Act of 1955 was not urged before the Court below, however, it was raised before this Court, thus has been dealt with.

Learned counsel for the petitioner/s had even raised an issue of adverse possession on the ground that period of 12 years had passed before the reference.

I find that factual matrix of claim adverse possession was not made by the plaintiff before the Court below. The argument of adverse possession has been raised for the first time in the High Court. It is not permissible because it is question of fact, thus should have been raised and proved before the Court below.

In view of the discussion made above and as the order passed by the Board of Revenue does not suffers from any illegality so as the order of Collector for making reference, the writ petition preferred by the petitioner is dismissed. This disposes of the stay application as well.