Sohani Devi vs The Board of Revenue of Rajasthan and Others

Sangeet Lodha, J—By way of this petition, the petitioner has questioned legality of order dated 19.2.15 of the Board of Revenue, Rajasthan, whereby while accepting the reference made by the Additional District Collector, Churu, the khatedari of land measuring 27 bighas and 3 biswas comprising khasra No. 163, recorded in the name of Smt. Kunni, which is alleged to be the land initially entered in the revenue record as johad may paitan mufid aam and later as gauchar, has been cancelled.

The relevant facts are that land ad measuring 27 bighas and 6 biswas comprising khasra No. 131 situated in village-Sandwa, Tehsil Sujangarh was recorded as johad may paitan mufid aam in the revenue record of Samvat 2002. Later, in the Jamabandi of 2028, at the time of settlement, the said land with the new khasra No. 163, was entered in the name of Panchayat as gauchar. As per the revenue record of 2060-63, the land was entered in the name of Smt. Kunni, widow of Ramchandra Jat, as gair khatedar. After decision of this court in the matter of Abdul Rahman''s case, directing removal of the encroachment in the catchment area of the water bodies, the Tehsildar, Bidasar made an application before the Additional District Collector, Churu under Section 82 of the Rajasthan Land Revenue Act, 1956, to refer the matter to the Board of Revenue for cancellation of the entry made in the revenue record in the name of Smt. Kunni. The application was allowed by the Additional District Collector vide order dated 28.7.10 passed in Reference Application No. 70/05 and accordingly, the reference was made to the Board of Revenue.

After due consideration, the Board of Revenue found that the land in question, which was initially entered in the revenue record as johad may paitan mufid aam has wrongly been entered in Jamanbandi of Samvat 2060-63 in the name of Smt. Kunni as gair khatedar. Accordingly, the entry made as aforesaid was directed to be cancelled and the land has been ordered to be recorded in the revenue record as siway chak category johad rifa-e-aam.

The petitioner alleged to have purchased the land in question from Smt. Kunni on 13.2.09 by way of registered sale deed, during the pendency of the application seeking reference before the Additional District Collector, Churu.

Learned counsel appearing for the petitioner contended that the land in question was in possession of Ramchandra, the husband of Smt. Kunni, since 1957 and he used to make payment of the lagaan. Drawing the attention of this court to Annexure P-6, learned counsel submitted that the land was mutated in the name of Ramchandra as gair khatedar in the year 1982 and after the death of Ramchandra, the same was entered in the name of Smt. Kunni. Learned counsel would submit that in view of the continuous cultivatory possession of Ramchandra and thereafter, of Smt. Kunni as gair khatedar, the Board of Revenue was not justified in cancelling the mutation effected in the name of Smt. Kunni. Learned counsel would submit that before passing the order impugned, the petitioner, a subsequent purchaser for consideration, was not afforded an opportunity of hearing and therefore, the order impugned passed by the Board of Revenue is ex facie illegal. Learned counsel submitted that after purchasing the land, the petitioner has invested huge money in development of the land and therefore, being bona fide purchaser, he cannot be divested from the rights accrued to him on the strength of the sale deed executed in his favour by Smt. Kunni. Learned counsel would submit that the cancellation of the mutation after a lapse of more than 30 years, is absolutely unjustified. Learned counsel submitted that the petitioner''s crop is standing over the land in question and if the petitioner is dispossessed, he will suffer huge loss.

On the other hand, learned Government Counsel reiterating the stand taken before the Board of Revenue, submitted that for the reasons recorded the Board has committed no jurisdictional error in cancelling the entry made in the revenue record in the name of Smt. Kunni and directing restoration of the land as siway chak category johad rifa-e-aam. Learned counsel submitted that the petitioner who has purchased the land during the lis pendens, cannot claim any right over the land in question on the strength of sale deed executed in his favour by Smt. Kunni and therefore, it was absolutely not necessary to extend any opportunity of hearing to the petitioner.

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

Indisputably, the land in question was initially recorded in the revenue record as johad may paitan mufid aam and later, it was recorded in the name of Panchayat as gauchar. It is true that the land was later recorded in the name of Ramchandra and thereafter, in the name of Smt. Kunni as gair khatedar but there is nothing on record suggesting that the khatedari rights were conferred upon Ramchandra or Smt. Kunni at any point of time, by an order of competent authority. Be that as it may, by virtue of provisions of Section 16(vi) and (xiv) of the Rajasthan Tenancy Act, 1955 (for short the "Act of 1955"), even on the strength of the cultivatory possession over the land in question, no khatedari rights could accrue in favour of Smt. Kunni, through whom, the petitioner is claiming right over the land in question.

In "Abdul Rahman v. State" 2005 RRT 59, a Bench of this court has issued direction to the State Government to remove encroachment in the catchment area of the water bodies. In the matter of "Suo Motu v. State of Rajasthan" (S.B.C. Writ Petition No. 11153/11), disposed of by Jaipur Bench of this court vide order dated 29.5.12, specific directions are issued restraining allotment of the land falling in catchment areas of water reservoirs like Johar, Nala, Tank, River, Pond etc. It is further directed that the appropriate action shall be taken for cancellation of the allotment made in defiance of Section 16 of the Act of 1955.

In the considered opinion of this court, keeping in view the settled position of law discussed as above, the decision of the Board of Revenue in accepting the reference made and cancelling the entry made in the revenue record in the name of Smt. Kunni and directing to enter the land as siway chak category johad rifa-e-aam, does not suffer from any infirmity or illegality or jurisdictional error so as to warrant interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India.

It is to be noticed that the petitioner is claiming right over the land in question on the strength of the sale deed alleged to have been executed by Smt. Kunni in his favour on 13.2.09. It is not disputed that as on the date, the transfer was made in favour of the petitioner the application seeking reference preferred by the Tehsildar, Bidasar, was pending consideration before the Additional District Collector, Churu. Obviously, the transfer of the land in favour of the petitioner, shall be governed by the lis pendens and he cannot claim any right over the land in question on the strength of the sale deed, alleged to have been executed in his favour by Smt. Kunni. In this view of the matter, nothing turns on the question that the petitioner was not impleaded as party to the reference made to the Board of Revenue.

Coming to the standing crop of the petitioner over the land in question, it is to be noticed that petitioner was cultivating the land purchased by him from Smt. Kunni, who was in cultivatory possession thereof as gair khatedar and therefore, in the interest of justice, it is considered appropriate to direct the respondents to permit the petitioner to harvest and remove his standing crop from the land in question, if any.

In the result, the writ petition fails, the same is hereby dismissed. However, the respondents are directed to permit the petitioner to harvest and remove his standing crop from the land in question, if any. No order as to costs.