Mangla and Others vs Board of Revenue and Others

Mohammad Rafiq, J.—This writ petition has been filed by Mangla and four other challenging judgment dated 01.07.1987 passed by Assistant Collector, Jaipur, judgment dated 12.12.2000 passed by the Revenue Appellate Authority, Jaipur, and judgment dated 11.06.2001 passed by the Board of Revenue for Rajasthan, Ajmer, to the extent they declared the land bearing khasra Nos. 523 and 526 total measuring 10 bigha 6 biswa situated in village Bagrana, Tehsil and District Jaipur, as surplus.

Briefly stated the facts of the case are that late Shri Mahadev, father of petitioners, along-with his brothers, was tenant of respondent No. 4 Jorawar Mal S/o. Shri Kistur Mal Patni, who was former Jagirdar. The Jagir was resumed in the year 1958 and father of petitioners and his brothers became khatedar of the lands of Khasra Nos. 523 and 526 measuring 30 bigha 14 biswa situated in village Bagrana, Tehsil and District Jaipur, by operation of law.

Respondent No. 4 filed a suit for ejectment against father of petitioners and other tenants, which was dismissed by learned Assistant Collector, by judgment and decree dated 30.04.1969. In ceiling proceedings, certain excess lands were sought to be resumed. The respondent No. 4 surrendered 20 bigha of land of petitioners. Aggrieved thereby, petitioners filed a suit against the State Government and respondent No. 4 on 26.03.1977 for correction of entry in the record and declaration, in the court of Sub Divisional Officer, Jaipur, which was transferred to the court of Assistant Collector, Jaipur, for decision. Respondent No. 4 remained ex-parte. The suit was dismissed by the Assistant Collector, Jaipur, vide judgment dated 01.07.1987 only on the ground that petitioners did not file appeal against mutation order, whereby the land in question was mutated in favour of the State on the basis of surrender made by respondent No. 4. The petitioners preferred appeal there against, which was also dismissed by learned Revenue Appellate Authority vide judgment dated 12.12.2000. Aggrieved thereby, they preferred second appeal before the Board of Revenue. The second appeal was also dismissed by the learned Board of Revenue vide judgment dated 11.06.2001. Hence this writ petition.

Shri R.K. Goyal, learned counsel for petitioners, has argued that the courts below have committed serious illegality in exercising their jurisdiction and not appreciating that the suit was for declaration and correction of entries. The respondent No. 4 had lost the right over the land in dispute including the land of khasra No. 523 and 526 on resumption of the jagir under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. He had no authority to surrender the same in ceiling proceedings. The State of Rajasthan also could not have accepted the same or entered the same as ''siwai chak'' in the revenue record. The State Government did not acquire any right over the land in dispute, because the petitioners had already acquired the disputed land by provisions of law in Section 19 read with Section 15 of the Rajasthan Tenancy Act. This was because the petitioners were in contextual cultivatory possession of the land in dispute on the date when the Rajasthan Tenancy Act, 1955 came into force. The landlord had played a mischief by surrendering another land, whereas, according to second proviso of sub-section (2) of Section 30E of the Rajasthan Tenancy Act, 1955, he was under obligation first to surrender unencumbered lands. The learned counsel for petitioners, in support of this argument, has cited a judgment of a coordinate bench this court in Kastoor Chand and Others Vs. The State of Rajasthan and Others, (1985) 1 WLN 17 , wherein it was held that surplus land in possession of assessee (transferor) has to be surrendered first and balance shall be taken possession of from transferee. Reliance is also placed on judgment of this court in Banwarilal Nagpal Vs. State of Rajasthan and Others, (1982) WLN 565 , which is also to the same effect.

Learned counsel for petitioners further argued that the courts below have failed to appreciate that the suit for ejectment filed by respondent No. 4 against the petitioners was dismissed by the competent court as far back as on 30.04.1969. The respondent No. 4, who was ex-jagirdar, had full knowledge of the fact that the land in dispute is not belonging to him and therefore he could not have surrendered the land of the petitioners. In the present case, when the issues No. 4 and 5 have been decided in favour of the petitioners, it is clear that the petitioners had been in possession of the suit land since Samvat 2004 or, as per admission of the State Government, since Samvat 2008, which is corresponding to the year 1951, i.e. before coming into force of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. The courts below ought not to have declined desired relief to the petitioners only because in the revenue record the land in question has been entered in the name of the State Government. Mere wrong entry in favour of the State Government, would not confer any right or title in favour of the State Government inasmuch as such wrong entry would not take away the right of legitimate entitlement of the petitioners.

It is argued that the courts below have committed serious error of law as well as facts, which is apparent on the face of the record, by bifurcation of total land of khasra Nos. 523 and 528 measuring 30 bigha 14 biswa in two parts, without any document whatsoever on record, simply on the oral statement of the Patwari that since the land of Khasra Nos. 523 and 526 was entered as ''siwai chak'' in the revenue records and mutation has been attested, the petitioners could not be declared khatedar of the same, because they were in possession of the disputed land much prior to coming into force of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, and the Rajasthan Tenancy Act, 1955.

Shri Jatin Agarwal, learned counsel for respondents, opposed the writ petition and argued that orders passed by the Revenue Appellate Authority and the Board of Revenue are perfectly just and proper and do not call for interference. The land was fallen surplus at the ends of respondent No. 4 and on its surrender by him, it stood vested in the State Government and was rightly recorded in favour of the State Government.

Heard learned counsel for the parties and perused the material on record.

Perusal of orders passed by the courts below indicates that the petitioners had produced sufficient documentary evidence on record to the effect that the land in dispute bearing khasra No. 523 and 526 total measuring 10 bigha 6 biswa, was earlier recorded in the khatedari of respondent No. 4, but, on the basis of ''misal hakiyat'' 1987, ''milan kshetraphal'' and ''khasra girdawari'' of samvat 2008 to 2015, it was clear that Teja Son of Girdhari Meena, the predecessor-in-title of the plaintiff, was in possession over the land in question. Issue No. 1 has been decided by the learned Sub Divisional Officer in favour of the plaintiff holding that he thereby acquired khatedari rights by prescription of law under Section 19 of the Rajasthan Tenancy Act, 1955. This fact has been proved from the testimony of the plaintiff as also Daularam, Ram Sahai and Manak Chand. The first court however failed to appreciate the effect that petitioner/their predecessor had acquired the khatedari rights in the land in question by virtue of Section 19 of the Rajasthan Tenancy Act, which came into force with effect from 15.10.1955. It also did not appreciate that on account of abolition of jagirdari, the respondent No. 4 ceased to be in possession of the land in question, by virtue of Section 4 of the Rajasthan Zamindari and Biswedari Abolition Act, 1959, and he could not be declared as khatedar or khudkasht to have acquired any right or title in property, and therefore, he had no right to surrender the land of the petitioners herein.

The Revenue Appellate Authority has also committed the same mistake. There was no justification for its finding that if the petitioners are in possession, they should have filed objections in the ceiling proceedings before the competent authority. The Board of Revenue has also seriously erred in not to correcting the error committed by the Sub Divisional officer and the Revenue Appellate Authority. Merely because the land in dispute was entered in the revenue record in the name of the State Government or was declared as ''siwai chak'', would not debar the petitioners of their right to retain the land having khatedari rights. The petitioners are khatedars of the land in question and have khatedari rights. They cannot be debarred of their right only because the respondent No. 4 surrendered the land in question by mischief as he had no authority to surrender such unencumbered land. According to second proviso of sub-section (2) of Section 30E of the Rajasthan Tenancy Act, 1955, he was under obligation first to surrender unencumbered lands.

In view of the above, the writ petition succeeds and is allowed. The impugned orders are set aside. The suit is decreed and the petitioners are declared as khatedar tenant of lands bearing khasra Nos. 523 and 526 measuring 10 bigha 6 biswa situated in village Bagrana, Tehsil and District Jaipur.