Ramdeen and Others vs Board of Revenue and Others

Sangeet Lodha, J.�This writ petition is directed against order dated 23.1.95 of Board of Revenue, Rajasthan, whereby while accepting the reference made by the Additional Collector, Jodhpur under Section 232 of the Rajasthan Tenancy Act, 1955 (for short "the Act of 1955"), the judgment and decree dated 12.10.81 passed by the Sub Divisional Officer, (SDO), Jodhpur in Revenue Suit No. 26/81, declaring the petitioner as Khatedar tenant of the land ad-measuring 6 bighas 19 biswas, 7 bighas 19 biswas and 2 bighas 8 biswas comprising Khasra Nos. 638, 639 & 640 respectively and issuing permanent injunction against the State Government, stands set aside and the disputed land is directed to be entered as ''Rakba Raj'' from very inception.

The relevant facts in nutshell are that the petitioner No. 1- Ramdeen and one Shri Joga Ram, now represented by his legal representatives, the petitioners No. 2/1 & 2/2 herein, preferred a suit under Section 88, 91 and 92A of the Act of 1955 before the SDO, Jodhpur for declaration and permanent injunction claiming that their forefather Shri Nararam S/o Kanaram Jat was in possession of the land comprising Khasra Nos. 638, 639 & 640 ad-measuring 6 bighas 19 biswas, 7 bighas 19 biswas and 2 bighas 8 biswas respectively, situated in Revenue Village-Jodhpur since the time of erstwhile Jodhpur State. On the basis of the long continuous possession, the plaintiffs claimed Khatedari right over the land in question, by virtue of provisions of Section 10 of Marwar Tenancy Act, 1949 ("Act of 1949") and Section 15 of the Act of 1955.

The suit was contested by the respondent-State by filing a written statement thereto, taking the stand that the disputed land is recorded in the revenue record as ''Siway Chak'' and since the land falls within the municipal limit of Jodhpur City, no Khatedari rights could be conferred upon the plaintiffs. The respondent contended that if any Khatedari right had accrued to the plaintiffs, under the provisions of the Act of 1949, then nothing prevented them from approaching the Court of competent jurisdiction for enforcement of their right. However, the facts regarding continuous possession over the land in question as pleaded by the plaintiffs were not specifically denied.

On the basis of the pleadings of the parties, the trial court framed the issues and parties led their evidence.

After due consideration of the documentary evidence on record, the trial court arrived at the finding that the petitioners herein are entitled to be declared Khatedar tenant of the land in question under Section 19 of the Act of 1955. Accordingly, the suit was decreed and the petitioners were declared Khatedar tenant of the disputed land and the respondent-State was restrained from interfering with the cultivatory possession of the petitioners.

After a lapse of about four years, the State Government through Tehsildar preferred an application under Section 232 of the Act of 1955 seeking reference to the Board of Revenue for cancellation of the judgment and decree dated 12.10.1981 passed as aforesaid, by the SDO, Jodhpur in Revenue Suit No. 26/81 in favour of the petitioners. The application was contested by the petitioners by filing a reply thereto. The Additional Collector opined that the petitioners were in possession of the land as trespasser and the petitioners not being the admitted tenant, cannot claim Khatedari rights over the land in question. It was observed that the tenancy rights of the petitioners having not been proved, they cannot claim Khatedari rights by operation of law in terms of Section 15 of the Act of 1955. Accordingly, vide order dated 23.5.1986, the reference was made to the Board of Revenue under Section 232 of the Act of 1955 for cancellation of the decree passed in favour of the petitioners.

After due consideration of the rival submissions, the Board of Revenue arrived at the finding that in absence of any document showing that the petitioners were holding the land during the time of erstwhile Jodhpur State as tenant on the strength of the patta or authority letter issued by the then Jodhpur State, they cannot be treated to be tenant. The Board observed that a person can be considered to be tenant over the land only when he is holding the land of some other person and was paying the ''Lagan''. The Board observed that in Khasra Girdavari of Samvat 2009, the petitioners were shown to be in possession of the land, but in Khasra Girdavari of Samvat 2010, they were not shown to be in possession. The Board observed that Khasra Girdavari of Samvat 2011 to 2013 have not been produced either before the trial court or before the Board and therefore, the petitioners cannot be said to be in possession of the land in question at the time of coming into force of the Act of 1955. Accordingly, the judgment and decree passed by the SDO, Jodhpur in favour of the petitioners stands cancelled by the impugned judgment. Hence this petition.

Learned counsel for the petitioners submitted that the judgment and decree dated 12.10.1981 was passed by the SDO, Jodhpur in presence of the respondent, however, if aggrieved, no appeal was preferred within the period of limitation and therefore, after a lapse of about four years, the reference application made was liable to be rejected on this count alone. Learned counsel submitted that the reference made after an inordinate delay of more than five years could not have been entertained by the Board of Revenue. Learned counsel submitted that the documentary evidence on record makes it abundantly clear that the grandfather of the petitioners Late Shri Nararam and thereafter, their father Shri Jogaram were holding the disputed land as Bapidar. Learned counsel submitted that the revenue records before the settlement and after the settlement clearly show that the petitioners were in continuous cultivatory possession of the land in question and therefore, by operation of law they have acquired Khatedari rights. Learned counsel submitted that by virtue of Section 15 of the Act of 1955, the persons holding the possession over the disputed land as on 15.10.55 as a tenant/sub-tenant, automatically became Khatedar tenant thereof and therefore, as a matter of fact there was no need to prefer any application claiming Khatedari rights. In support of the contention, learned counsel has relied upon a decision of this Court in the matter of "State v. Balbir Singh" 1983 WLN (UC) p. 476. Learned counsel submitted that it is true that in the Khasra Girdavari of 2010, the petitioners were not shown to be in possession of the land and Khasra Girdavari of 2011 to 2013 could not be produced before the Court inasmuch as, the same were not made available to them. Learned counsel submitted that the Dhal Banchh of Samvat 2010 to 2013 now placed on record by the petitioners alongwith an additional affidavit clearly show that during the period from 2010 to 2013, the petitioners'' father Joga S/o Nara was in cultivatory possession of the land in question. Learned counsel submitted that regarding Khasra Girdavari of Samvat 2011 to 2013, it stands clarified by the Tehsildar, Jodhpur on an application being preferred by the petitioners for copies thereof, that the same are not available on record. Learned counsel submitted that in any case, the finding recorded by the Board of Revenue that the petitioners were not in possession of the disputed land as on the date of coming into force of the Act of 1955, is ex-facie contrary to record. Learned counsel submitted that by virtue of provisions of Section 10 of the Act of 1949, the petitioners had acquired Khatedari rights during the time of erstwhile Jodhpur State, has simply not been considered by the Board of Revenue in correct perspective. Accordingly, it is submitted that the impugned judgment deserves to be set aside.

On the other hand, the Deputy Government Counsel appearing for the respondent-State submitted that there was nothing on record to show that the petitioners were holding the possession over the land in question as tenant or subtenant, and therefore, the provisions of Section 15 of the Act of 1955 are not attracted in the matter. Learned counsel submitted that no foundation of facts was laid by the petitioners before the revenue court to establish their claim regarding the Khatedari rights over the land in question by virtue of Section 10 of the Act of 1949. Learned counsel submitted that in absence of any evidence showing continuous possession of the petitioners over the land in question as tenant/sub-tenant, the contention sought to be raised by the petitioners that they have acquired Khatedari right by operation of law, is absolutely devoid of any merit. Learned counsel submitted that on the facts and in the circumstances of the case, after due appreciation of the evidence on record, the order impugned passed by the Board of Revenue cancelling the decree passed in favour of the petitioner does not suffer from any jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

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

Indisputably, in the suit filed for declaration of Khatedari rights, the plaintiffs claimed possession over the land since the time of Jodhpur Erstwhile State. In this regard, the documents showing their possession over the land since Samvat 1998 were placed on record. A perusal of the documents reveals that in the Girdavari of the relevant year, Joga S/o Nara was shown to be in cultivatory possession of the land as "Gair Bapidar". A few receipts showing deposit of "Bigodi" by the petitioner with the "Mahakma Havala", of the erstwhile Jodhpur Government were also placed on record as Exhibit-2 to Exhibit-12. Since Girdavaris of Samvat 2011 to 2013 were not placed on record by the petitioners either before the trial court or the Board of Revenue, the Board arrived at the finding that as on the date of coming into force of the Act of 1955, the petitioners cannot be said to be in continuous possession of the land. It has come on record that Girdavaris of Samvat 2011 to 2013 in respect of the land in question were not available in the revenue record maintained by the State Government, however, the petitioners have placed on record the "Dhalbanchh" of Samvat 2010 to Samvat 2013, wherein the father of the petitioner No. 1, Shri Joga, is shown to be in possession of the land in question as "Gair Bapidar". However, without appreciating the documentary evidence on record in correct perspective, the Board has proceeded with the presumption that the petitioners were holding the possession over the land as trespasser and were not in continuous possession thereof.

It is also pertinent to note that as per Section 9 of the Act of 1949, a "Gair Khatedar" is also classified as tenant and by virtue of Section 12 every tenant other than sub-tenant who is not a Khatedar, shall be "Gair Khatedar". Thus, taking into consideration the continuous possession of the petitioners over the land in question, the Board was required to examine whether the petitioners have acquired the status of tenant by virtue of provisions of Section 10 of the Act of 1949.

That apart, it is to be noticed that the trial court has observed that the petitioners are entitled for conferment of Khatedari rights under Section 19 of the Act of 1955, however, while passing the impugned order, the petitioners'' entitlement for conferment of khatedari rights under Section 19 has also not been examined by the Board of Revenue in its entirety and objectivity.

In view of the discussion above, in the considered opinion of this Court, the matter needs to be examined by the Board of Revenue afresh taking into consideration the material on record. It is always open for the Board to requisition the relevant revenue record to ascertain the correct status of the petitioners'' possession over the years on the land in question.

Accordingly, the writ petition is partly allowed. The order impugned dated 23.1.95 passed by the Board of Revenue Rajasthan is set aside. The matter is remanded to the Board of Revenue for decision afresh in accordance with law keeping in view the observations made by this Court as above. The parties shall appear before the Board of Revenue on 21.4.14. No order as to costs.