Mohan Lal and Others vs State and Others

Mohammad Rafiq, J—This writ petition filed by the petitioners Mohan Lal and Mst. Pushpa Bai respectively son and widow of late Shri Nand Kishore seeks to challenge the judgements passed by Assistant Collector dated 17.1.1977, Revenue Appellate Authority dated 31.8.1983 dismissing the first appeal and Board of Revenue dismissing the second appeal by judgement dated 26.7.1990 and review petition by judgement dated 25.9.1996.

Facts of the case are that late Nand Kishore, predecessor in title of the petitioners died on 1.4.1992 during proceedings before the Board of Revenue. He instituted a suit on 19.1.1961 in the Court of Assistant Collector, Kota against the State of Rajasthan for declaration under Section 88 of the Rajasthan Tenancy Act to the effect that he is the khatedar-tenant of the land bearing khasra No. 848 measuring 62 bigha 7 biswa, khasra No. 387 measuring 42 bigha 13 biswa, khasra No. 411 measuring 15 bigha 20 biswa total area 120 bigha 2 biswa situated in village Luavad Tehsil Pipalda. He prayed for declaration that the entry in the parcha settlement with regard to these khasra numbers be corrected. Laxmi Shankar, whose legal representatives are respondent Nos. 5 to 8, was made party in the suit on 21.7.1964, likewise Madho Koli whose legal representatives are respondent Nos. 9 and 10 was made party on 19.12.1963 in the suit. Both of them died during the proceedings before the Revenue Appellate Authority. Navneet Lal, the brother of Nand Kishore was also party to the proceedings. His legal representatives are respondent Nos. 11 and 12 herein. According to petitioners, the land in dispute was muafi land of late Shri Laxmi Shankar. Late Nand Kishore was cultivating the land of khasra No. 848 measuring 62 bigha 7 biswa, khasra No. 387 measuring 42 bigha 13 biswa and khasra No. 411 measuring 15 bigha 2 biswa total area 120 bigha 2 biswa situated in village Luavad Tehsil Pipalda. Nand Kishore had got his share in partition 23 years before the registration of the suit. The remaining 118 bigha 8 biswa land came to the share of his brother Navneet Lal. Total joint land was thus 238 bigha 10 biswa comprising of khasra Nos. 387, 403, 404, 411, 635, 848, 849 and 851. The land of muafi was resumed under the provisions of Rajasthan Land Reforms and Resumption of Jagirs Act with effect from 1.7.1958. Since plaintiff-Nand Kishore was cultivating the land of his share as khatedar tenant, he acquired khatedari rights under the Rajasthan Tenancy Act. Plaintiff came to know that the Tehsildar had notified the land to be auctioned treating it as non-occupied land. Plaintiff made a request not to auction the same and claimed that he was khatedar of the land. It so happened that in parcha settlement of Svt. 2011, the land of khasra Nos. 387, 403, 404, 411 and 635 were shown as khudkasht of Navneet Lal, brother of the plaintiff in one share and remaining half was shown as ''maqbuja sarkar'', which necessitated filing of the suit by Nand Kishore.

The defendant-State of Rajasthan contested the suit denying the allegations in the plaint. Laxmi Shankar also contested the suit alleging that the land is khudkasht land and he became khatedar-tenant on resumption of his muafi. The defendant-Madho Lal had claimed his right of tenancy only on khasra No. 848 measuring 62 bigha 7 biswa as per provisions of Section 15 of the Rajasthan Tenancy Act. The SDO vide judgement and decree dated 17.1.1977 dismissed the suit holding that plaintiff and defendants-Laxmi Shankar and Madho are not entitled to get any relief. Successive appeals filed there against were dismissed by the Revenue Appellate Authority and Board of Revenue. The Board of Revenue even dismissed the review petition filed thereagainst by the petitioner.

Shri M.M. Ranjan, learned senior counsel for the petitioners has argued that the three courts below have committed a serious mistake of law in taking the crucial date of acquiring khatedari right by the plaintiff-Nand Kishore as 1.7.1958, the date on which the muafi of Laxmi Shankar was resumed. In this connection, the date of commencement of provisions of the Rajasthan Tenancy Act, which is 15.10.1955 is significant and for that purpose the khasra girdawari and jamabandi of Svt. 2012 would be relevant. The plaintiff had claimed khatedari rights on the ground that he had been cultivating the disputed land of khasra Nos. 387 and 411 since many years before Svt. 2012. He filed the certified copy of jamabandi of Svt. 2012 before the SDO, in which Nand Kishore and Navneet Lal have been recorded as ''Jaili'' in respect of four khasra numbers, area of which was 113 bigha 18 biswa. The Jaili-tenant has the status of sub-tenant and this was the status of the plaintiff in respect of lands of khasra No. 235 and 277, out of which the new khasra Nos. 387 and 411 have been carved out. Learned senior counsel argued that the Board of Revenue in its judgement has given a finding that the status of Nand Kishore has been mentioned as that of Jaili, which proves that Nand Kishore and his ancestors were up-krishak in the disputed land since Svt. 1993. The land was shown to have been in possession of Nand Kishore from Svt. 2012 to 2015. Even then the learned Board of Revenue did not analyse the fact of Section 15 and 19 of the Rajasthan Tenancy Act whereunder the plaintiff was entitled to get khatedari rights by presumption of law. The Board of Revenue erred in law in holding that those provisions are not applicable to the land in question and that khatedari rights in such land can be acquired only under the provisions of Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (in short-''the Act of 1952''). The Board took wrongly 1.7.1958 as the crucial date for the khatedari rights in the act of 1952 and proceeding on the footing that the plaintiff should have proved his tenancy right on 1.7.1958. The finding of the Board that Section 15 and 19 of the Tenancy Act are not applicable is wholly perverse. If a persons happens to get khatedari rights under the provisions of Section 15 and 19 of the Rajasthan Tenancy Act 1955, there is no need for him now to fall back up on the provisions of the Act of 1952. The entry in parcha settlement Annexure-2 in favour of plaintiff''s brother that he is tenant of half share and one half was ''Maqbuja Sarkar'' is certainly wrong. The plaintiff-Nand Kishore and Navneet were two real brothers and they have joint right in cultivation. The remaining half have to be recorded in the name of Nand Kishore and not ''Maqbuja Sarkar''.

It is argued that a Jaili-tenant in so far as Kota State is concerned, has been held to be a subtenant. When the Tenancy Act of 1955 came into force i.e. in Svt. 2012, the plaintiff-Nand Kishore was recorded as sub-tenant of old khasra No. 235 and 277, which are new khasra Nos. 387 and 411 respectively.

It is argued that actual date of acquiring khatedari rights under the Act of 1952 is 18.2.1952 and not 1.7.1958. It is contended that after commencement of the Act of 1952, the Rajasthan Tenancy Act, 1955 has been enacted and has come into force with effect from 15.10.1955. No exception has been made in respect of Jagir land in Section 15 and 19 of the Rajasthan Tenancy Act. Learned senior counsel in support of his arguments has relied on the judgment of Supreme Court in Deepa Vs. State of Rajasthan and Others, (1995) 9 JT 173 : (1995) 7 SCALE 253 : (1996) 1 SCC 612 : (1995) 6 SCR 780 Supp : (1996) 1 UJ 191 and Vijay Kumar v. Board of Revenue & Ors.-WLN (UC) 1976 page 16.

Per contra, Shri Sanjay Mehrishi and Shri Rinesh Gupta, learned counsel for the respondents opposed the writ petition and submits that the three courts have concurrently decided the suit against the petitioners. The findings recorded by the courts below especially by the Board of Revenue are neither perverse, nor erroneous so as to warrant interference by this Court. It is wrong to suggest that the land measuring 120.2 bighas came to the share of the plaintiff and 118 bigha 8 biswa to his brother Navneet Lal.

Shri Sanjay Mehrishi, learned counsel for the respondents submits that respondent Nos. 11 and 12 were neither parties in the suit before the ACM, Kota, therefore, their impleadment before the High Court is not competent. The findings of ACM, Kota on Issue No. 1 and 2 is based on numerous documents especially the khasra girdawari Ex.4- in column No. 6 the entry khud kasht is found for khasra Nos. 387, 403, 404, 411 and 635 and the name of mafidar''s was entered. The name of plaintiff-Nand Kishore was for the first time entered in khasra girdawari of Svt. 2015 corresponding to 6.10.1958 after the resumption of muafi and that too he has been entered as gair khatedar and as share cropper with Prabhu Meena. The means of cultivation namely; bullocks and cart are with Prabhu Meena. Similarly, against khasra No. 411, plaintiff shares cultivation with Dhanna Lal, but rest of the land was never shown in the possession of plaintiff. In Svt. 2016 also plaintiff was shown as co-sharer in the cultivation. While the plaintiff has asserted that he has been cultivating the land for the post of 37 years, the earlier record he has produced is of Svt. 2015, therefore, the finding given by the Revenue Appellate Authority at page 10 of its judgement and the findings given by the Board of Revenue in para 6 of the judgement dated 26.9.1970 are not correct.

It is contended that the provisions of Section 15 and 19 of the Rajasthan Tenancy Act, 1955 cannot be applied to the lands of Jagir/muafi where the only provision that is applicable is Section 13. Plaintiff has certainly failed to prove before any courts below that he was in cultivatory possession of the disputed land when the Rajasthan Tenancy Act, 1955 is enforced on 15.10.1955. The entry of jamabandi of Svt. 2012 (Annexure-13) shows the name of plaintiff-Nand Kishore and Navneet Lal in column No. 4, which is wholly false, fake and fraudulent. Plaintiff Nand Kishore at that time happened to be the Sarpanch of the Gram Panchayat and he abusing the official possession during Svt. 2015-17 got interpolation in the revenue record. No reliance can be placed on such report. Nand Kishore never remained in possession of the disputed lands prior to Svt. 2012 or upto Svt. 2014. His name could not be entered in the jamabandi of Svt. 2012, which is a highly suspicious document. Plaintiff-Nand Kishore never pleaded in the suit that he and his brother Navneet Lal were inducted as tenants or sub-tenants of the disputed land by the muafidar in Svt. Year 2012 and, therefore, such entry would have no value. It is contended that according to Section 9 and 10 of the Act of 1952, which is a special law and Section 13 of the Rajasthan Tenancy Act, 1955, only 1.7.1958 is the date of abolition of muafi and not the date of the commencement of the Rajasthan Tenancy Act, 1955, which would be crucial for deciding whether or not the plaintiff gets khatedari rights. All the three courts below have decided against the petitioner on this aspect.

Shri Sanjay Mehrishi, learned counsel for the respondents has relied on the judgements in The J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. The State of Uttar Pradesh and Others, AIR 1961 SC 1170 : (1961) 2 FLR 529 : (1961) 1 LLJ 540 : (1961) 3 SCR 185 , Ravi Dutt Sharma v. Swaran Kaur- AIR 1984 SC 967 , The Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur, AIR 1975 SC 1039 : (1975) 4 SCC 22 : (1975) 3 SCR 743 : (1975) 35 STC 413 : (1975) 7 UJ 267 , C. Rajagopalachari Vs. Corporation of Madras, AIR 1964 SC 1172 : (1964) 53 ITR 454 : (1964) 6 SCR 962 , Ramchandra v. Board of Revenue- RRD 1986 page 546, Satra v. Kapoor Chand-RRD 1987 page 190, Ram Pratap & Anr. v. Board of Revenue & Ors.-1993 (1) RLR 307 , Sadhana Lodh Vs. National Insurance Company Ltd. and Another, (2003) 1 ACC 33 : (2003) ACJ 505 : AIR 2003 SC 1561 : (2003) 6 JT 126 : (2003) 1 SCALE 739 : (2003) 3 SCC 524 : (2003) 1 SCR 567 and Sameer Suresh Gupta Tr. PA Holder Vs. Rahul Kumar Agarwal, (2013) 3 SCALE 275 : (2013) 9 SCC 374 .

I have given my thoughtful consideration to the rival submissions and perused the material on record.

The ACM, Kota in his order dated 17.1.1977 has referred to six documents produced by the plaintiff namely; (1) khasra girdawari, Svt. 2015 to 2017 and 2018, (2) Girdawari slip, (3) jamabandi for Svt. 2012 to 2015 and 2019 to 2022, (4) attestation by panchayat, (5) settlement parcha and (6) receipts of land revenue. Then he has analysed each document. Regarding khasra girdawari referred to supra, he has mentioned that in respect of khasra No. 387, 403, 404, 411 and 635, name of mafidar appeared therein. Name of plaintiff-Nand Kishore appeared in Svt. 2015 i.e. 6.10.1958 after the resumption of muafi as gair khatedar and share cropper with Prabhu Meena. The means of cultivation were shown of bullocks and cart, which were provided by Prabhu Meena. Similarly, against khasra No. 411 also he shares cultivation with Dhanna Lal, but rest of the land was not shown in the possession of the petitioner. In Svt. 2016 also, Nand Kishore was sharer in cultivation. The assertion of the plaintiff that he was cultivating the land for the past 37 years in collaboration with his father has been found to be not substantiated. Plaintiff could produce earlier records pertaining to Svt. 2015 in which his name was recorded as gair khatedar after resumption of muafi. It was held that to become a khatedar, he was required to prove tenancy before 1.7.1958, the date of resumption of muafi. The khasra girdawari relates to khasra No. 848, 849 and 851. The entry against 848 shows the cultivatory possession of Nand Kishore and Navneet Lal with their partners in cultivation being Madho. Ex.6 showed half the lands in Navneet Lal''s khata and other half in Makbhuja Sarkar. It was held that plaintiff filed to produce the milan kshetraphal to substantiate that numbers in the documents are the corresponding new or old numbers of the land in dispute. This finding was given because in jamabandi of Svt. 2012 to 2015, khasra numbers of the disputed land were not shown. The jamabandi of Svt. 2019 to 2022 did not prove the plaintiff contention because it did not indicate his name. Learned ACM held that as per the evidence of the parties, the partition in the family took place in Svt. 2000, but for the first time name of the petitioner is shown in the land records of Svt. 2015 in respect of 120 bighas and 2 biswas. There was no proof that he had been cultivating this land for 23 years. Mere entry as gair khatedar does not confer any title or tenancy right on the plaintiff. On Issue No. 6, the ACM has recorded the finding that plaintiff as Sarpanch manipulated entries by misusing his office. He was never mentioned as tenant before or during the resumption in any dependable land records, but his name was straightway shown in khasra girdawari without any corresponding entries in the jamabandis to establish his legal right. It was a really explainable otherwise as to how he had become a gair khatedar suddenly in Svt. 2015.

The Revenue Appellate Authority has affirmed the findings recorded by the ACM and held that plaintiff failed to prove that he was personally cultivating the land at any point of time. The crucial date for deciding the khatedari rights would be 1.5.1958 when the muafi land was resumed. There is no evidence either documentary or otherwise to prove that plaintiff was actually cultivating the land either independently or for Makbhuja Sarkar whose name was shown in column No. 2 of khasra girdawari of Svt. 2014 as kudhkasht. As per Section 13 read with Section 5(3) of the Rajasthan Tenancy Act, those who were themselves cultivating the land would be considered as khudkasht. Therefore, by virtue of Section 5(23), his legal heirs were liable to be accepted as khatedar held the Revenue Appellate Authority. The Board of Revenue also maintained both the orders passed by the ACM and Revenue Appellate Authority that Jagir was resumed by virtue of Act of 1952, despite the fact as to who was in possession of the land when the Jagir was resumed on enforcement of Act of 1952. The khasra girdawari produced by plaintiff-Nand Kishore from Svt. 1993 indicate his entry as Jaili/up-krishak. He claims possession on the basis of entries made in jamabandi of Svt. 2012 to 2015, but there is no proof of the fact that on 1.7.1958, he was having possession over the land as jaili. He has failed to prove his possession by any reliable evidence. The Board of Revenue held that petitioner would not get any khatedari rights by prescription of law under Section 15 and 19 of the Rajasthan Tenancy Act because the land being a Jagir land of muafi, the khatedari rights could also accrue only under the provisions of the Act of 1952. Since it has not been proved that Laxmi Narain was in possession of the land in 1958, the land on that date was not khudkasht land with him and, therefore, khatedari rights could not be granted. The Board further held that since the revenue suit was not filed by legal heirs of Laxmi Narain, therefore, no declaration can be made in their favour and if they want to establish their right, they have to institute a separate suit and khatedari rights cannot be granted to them in these proceedings.

The cited judgement of Supreme Court in Deepa, supra cannot be applied to the present case because therein Deepa''s father had been given the land for cultivation on "panti basis'' as crop sharer, whereas in the present case actual cultivator was Prabhu Meena with their own bullocks, whereas name of the petitioner was shown as jaili. Besides, the judgement of Supreme Court has only analysed the provisions of Rajasthan Tenancy Act. In that case, the respondent-Ram Chandra had once accepted the petitioner as tenant. When the proceedings under Section 177 of the Tenancy Act was initiated, it was held that Ram Chandra had no locus to file suit as Jagir stood abolished by force of Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. Subsequently, the respondent-Ram Chandra again filed application before the Collector under Section 82 of the Rajasthan Land Revenue Act for making a reference to the Board of Revenue, which was allowed. The Board did not accept the plea of res judicata and took a view that appellant''s right were not heritable and transferable and granted prayer of the respondent. Such are not the facts in the present case. Besides Section 13 of the Rajasthan Tenancy Act has not been noticed in the aforesaid judgement of Supreme Court, which inter alia provides that on the resumption of an estate under any law in force in the whole or any part of the State, the estate holder holding Khudkasht shall become a khatedar tenant thereof and shall be entitled to all the rights conferred, and be subject to all the liabilities imposed, on a khatedar tenant by or under the said Act.

Section 15 of the Rajasthan Tenancy Act, 1955 provides that subject to the provisions of Section 16 and Section 180(1)(d) every person who, at the commencement of this Act, is a tenant of land otherwise than as a sub-tenant or a tenant of Khudkasht or who is, after the commencement of this Act, admitted as a tenant otherwise than a subtenant or tenant of Khudkasht or an allottee of land under, and in accordance with, rules made under section 101 of the Rajasthan Land Revenue Act, 1956 or who acquires Khatedari rights in accordance with provisions of this Act or of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 or of any other law for the time being in force shall be a khatedar tenant and shall, subject to the provision of this Act be entitled to all the rights conferred; and be subject to all the liabilities imposed on Khatedar tenants. In so far as sub-tenants or tenants of khudkasht are concerned, they have been excluded from the purview of Section 15 and what has been provided is that those who acquires the khatedari rights in accordance with the provisions of the Act of 1952 shall be khatedar tenant, but subject to provisions of Rajasthan Tenancy Act be entitled to all rights conferred and be subjected to all liabilities imposed on khatedar by the Act of 1955. Section 19 of the Rajasthan Tenancy Act, 1955 also in Sub-section (1)(b) also excluded the tenant of khudkasht and sub-tenant of land other than grove land for conferment of khatedari rights. It is therefore that the Courts have concurrently held that in respect of jagir land, the khatedari rights would not straightaway accrue by virtue of Section 15 and 19 of the Rajasthan Tenancy Act and would be decided according to provisions of the Act of 1952. In this connection, Section 9 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 provides that every tenant in a jagir land who at the commencement of this Act is entered in the revenue records as a khatedar, pattedar, khademdar or under any other description implying that the tenant has heritable and full transferable rights in the tenancy shall continue to have such rights and shall be called a khatedar tenant in respect of such land. Section 10 of the Act provides that as from the date of resumption of any jagir land, any khudkasht land of a jagirdar shall be deemed to be held by the jagirdar as a khatedar tenant and shall be assessed at the village rate. In view of specific provisions, the plaintiff-petitioner could not be granted khatedari rights under Section 15 or 19 of the Rajasthan Tenancy Act. Even otherwise on facts, plaintiff-petitioner failed to prove his cultivatory possession on the date of commencement of Rajasthan Tenancy Act. The findings recorded by the three courts in this respect do not suffer from any legal infirmity or error apparent on the face of record.

There is no merit in this writ petition, which is accordingly dismissed.