Judgment A.S. Godara, J.-This appeal is directed against the Judgment and order dated 21-12-95 passed by the learned Addl. Sessions Judge, Phalodi in Sessions Case No. 4/93 (141/88) whereby the accused-appellants have been convicted and sentences as under (1) Kesara Ram (since deceased) (i) u/s. 147, I.P.C. (ii) u/Ss. 302/149 I.P.C. (iii) u/S. 323, I.P.C. (iv) u/S. 379/149, I.P.C. One years R. I. L.I. and a fine of Rs. 1000/-and, in default of payment of fine, 6 months’ S 6 months’ R.I. and a fine of Rs. 1000/-and, in default of payment of fine, 6 months’ S.I. 6 months’ R.I. and a fine of Rs. 1000/-and, in default of payment of fine, 6 months’ S.I. 2. Bhura Ram(i) u/S. 147, I.P.C. (ii) u/S. 302, I.P.C. (iii) u/S. 323/149, I.P.C. (iv 379/149, I.P.C One years R. I. L.I. and a fine of Rs. 1000/-and, in default of payment of fine, 6 months S.I 6 months R. I. and a fine of Rs. 1000/-and, in default of payment of fine, 6 months S. I. 6 months R. I. and fine of Rs. 1000/-and, in default of payment of fine, 6 months S. I. 3. (a) Mula Ram (b) Sohan Lalo @ Hanumana Ram (c) Bhanwar Lal (i) u/S. 147, I.P.C. (ii) u/S. 302, I.P.C. (iii u/S. 323/149, I.P.C. (iv) u/S. 379/149, I.P.C One years R. I. L.I. and a fine of Rs. 1000/-and, in default of payment of fine, 6 months S.I. 6 months R. I. and a fine of Rs. 1000/-and, in defau of payment of fine, 6 months S. I. 6 months R. I. and a fine of Rs. 1000/-and, in default of payment of fine, months S. I. 2. Briefly stated the facts giving rise to the prosecution of the appellant and consequential trial resulting in present appeal are that the accused-appellants are residents of village Chimana. Harjinath (P.W. 22), S.H.O., P.S., Jamba, at Phalodi, on 10-7-88, was informed by Kesara Ram (deceased) that Roopa Ram (deceased) had killed Ugrasen who was, admittedly, maternal nephew of Kesara Ram. Harjinath reached the village Chaku in the morning of 10-7-88 itself whereat Smt. Saudi (P.W. 2) wife of Roopa Ram (contd. on col. 2) was present at her ‘Dhani’ situated in her field. Harjinath immediately recorded statement of Smt. Saudi (Ex. Harjinath reached the village Chaku in the morning of 10-7-88 itself whereat Smt. Saudi (P.W. 2) wife of Roopa Ram (contd. on col. 2) was present at her ‘Dhani’ situated in her field. Harjinath immediately recorded statement of Smt. Saudi (Ex. P.1) at 6 a.m. She reported that their agricultural land measuring about 148 bighas (exact 148 bighas and 12 biswas) is located within the territory of village Chaku which is under their cultivatory possession since the time of their father-in-law. They had built up a residential ‘Dhani’ in the field. Her husband Roopa Ram’s brother Dana Ram (P.W.I), Dana Ram’s wife Smt. Jugti who is deaf and dumb as well as the children of Roopa Ram resided jointly in the ‘Dhani’. Kesara Ram (accused-appellant) asserted that he had purchased their agricultural land and, therefore, they were being pressurised to leave and vacate the ‘Dhani’ and to go elsewhere. Ugrasen (deceased) who is resident of village Nathusar and was Kesara Ram’s sister’s son, visited their ‘Dhani’ twice in the company of Kesara Ram asking them to vacate their possession of the ‘Dhani’ as well as the field. Dana Ram and her children had gone to the ‘Dhanis’ for collection of grains and it was on 9-7-88 at about 5 p.m. that a Jonga jeep came to their Dhani and the same was parked at a little distance. Kesara Ram, Ugrasen, Bhura Ram, Kesara Ram’s two other sons, Mula Ram, Moti Ram, Sohan Singh residents of village Chimana, Bulidan Singh, Bane Singh, Sukha Ram, jeep driver Ladu Ram and Ummaid Singh who are also residents of village Chimana got down from the jeep and they all entered the ‘Dhani’. Meanwhile, Sohan Singh went towards ‘Dhani’ of Gumana Ram, Barber while Bulidan Singh and Bane Singh headed towards ‘Dhani’ of Bhur Singh (P.W.4). Ugrasen and his associates entered their ‘Dhani’ and enquired about her husband Roopa Ram. She told them that Roopa Ram had gone to the ‘Dhani’ ot Bhur Singh. Ugrasen asked that all the household articles lying in the ‘Dhani’ be loaded in the camel-cart being brought by them and they should live elsewhere in the village. Meanwhile, the camel-cart was brought to their ‘Dhani’ which was being driven by Rekha Ram son of the appellant Kesara Ram. The household articles including the beddings, cots, utensils etc. as are detailed in memorandum (Ex. P. 7), were loaded in the camel-cart. Meanwhile, the camel-cart was brought to their ‘Dhani’ which was being driven by Rekha Ram son of the appellant Kesara Ram. The household articles including the beddings, cots, utensils etc. as are detailed in memorandum (Ex. P. 7), were loaded in the camel-cart. The accused-persons attempted to enter the ‘jhumpa’ to fetch out other household articles left inside while Roopa Ram who was hiding inside the jhumpa’ whispered that she should not allow the accused-persons to enter the ‘jhumpa’ else he would be killed to death. She shouted in front of the accused-persons resisting their entry into the ‘jhumpa’ on which Kesara Ram inflicted lathi blows on her head and left arm. Ugrasen caught her hand and she was thrown aside. Ugrasen was about to enter into the ‘jhumpa’ and, in the meantime, Roopa Ram fired from his gun at-Ugrasen and the gun shot fire hit Ugrasen on his abdomen and, consequently, he fell down. Bhura Ram, who is son of Kesara Ram, entered the ‘jhumpa’ and he caught hold of Roopa Ram and dragged him out of the ‘jhumpa’. Accused-persons assaulted Roopa Ram with fists and kicks shouting that he be killed to death. Bhura Ram, who was armed with an axe, gave two or three forceful blows of axe in his possession on the head. These injuries proved fatal and Roopa Ram died on the spot. Kesara Ram, Moti Ram, Mula Ram etc. picked up injured Ugrasen and loaded him in the jonga jeep. Bhura Ram also took away the S.B.B.L. gun of Roopa Ram while retreating in the jeep. Rekha Ram drove his camel-cart along with the household articles loaded on the same. Smt. Jugti had fled away from there. It was also stated that Bhur Singh (P.W. 4) and Khiyaram Jakhar(P.W. 13) whose ‘Dhanis’ were situated in the neighbourhood of their ‘Dhani’, were witnesses to the occurrence. 3. Harjinath (P.W. 22), on the basis of aforesaid statement (Ex. P. 1) of Smt. Saudi got registered FIR No. 22/88 (Ex. P. 27) under Sections 147, 148, 149, 447, 323, 302 and 379, I.P.C. and commenced investigation at the site. He prepared site plan (Ex. P. 25) and memorandum (Ex. P. 26) thereof Inquest report (Ex. P. 4) and panchanama (Ex. P. 5) of the dead body of Roopa Ram were also prepared. He also seized clothes of the deceased vide Ex. P. 6 and Ex. P. 2. He prepared site plan (Ex. P. 25) and memorandum (Ex. P. 26) thereof Inquest report (Ex. P. 4) and panchanama (Ex. P. 5) of the dead body of Roopa Ram were also prepared. He also seized clothes of the deceased vide Ex. P. 6 and Ex. P. 2. Rekha Ram had removed household articles of Roopa Ram, as above, on the camel-cart and the same having been unloaded on a public way at a little distance from the ‘Dhani’, were seized vide Ex. P. 7 memo. 4. Since the dead body of Roopa Ram was taken to the Government Hospital, Phalodi and hence, on requisition, the dead body of Roopa Ram was subjected to post-mortem by Dr. B. D. Acharya (P.W. 20) who found following external injuries on the dead body; 1. Incised wound 4”xl” x brain deep antero-posteriorly on Rt. parieto-occipital region. Membrances lacerated, brain matter lacerated and avulsing out. 2. Incised wound 3 1/2” x 3/4” x brain deep Rt. parieto-occipital region 1” below injury No. 1 (Antero-posteriorly). Membranes lacerated, brain matter lacerated and avulsing out. Note : In injury Nos. 1 and 2 the force of weapon used was so much that resulted in six pieces of parieto-occipital bone of skull of Right side. Two pieces are lying loose in the wound. 3. Incised wound 1-1/2” x 1/4” x bone deep Right side occipital Bone 1” below 2nd injury. 4. Incised wound 1” x 1/4” x Bone deep 1” posterior to the outer canthus of Right eye oblique. 5. Abrasion 1” x 1/2” on Right forearm 4” above wrist joint posteriorly. 6. Abrasion 1-1/2” x 1/2” on the left forearm 3” above writ joint anteriorly. 7. Abrasion 1” x 1/2” on left leg 4” below knee joint medially. 8. Bruise 1” x 1/2” postero laterally on mid-thigh of Right side. 5. Dr. Acharya, on examination of condition of the dead body of the deceased-Roopa Ram and so also external and internal examination, on the basis of aforesaid injuries, opined that the death of Roopa Ram had ensued due to head injury resulting in haemorrhage and shock. It was also observed that injuries Nos. 1 and 2, mentioned above, were caused by a sharp weapon and the weapon was so heavy that the same had resulted in six pieces of parieto-occipital bone of right side and brain matter had avulsed out. He prepared Ex. It was also observed that injuries Nos. 1 and 2, mentioned above, were caused by a sharp weapon and the weapon was so heavy that the same had resulted in six pieces of parieto-occipital bone of right side and brain matter had avulsed out. He prepared Ex. P. 23 post-mortem report thereof 6. On thesame day, Dr. Acharya examined injuries of P.W. 2 Smt. Saudi and found an abrasion on her left parieto-occipital region of head and a bruise with swelling on the postero-medial aspect of left hand caused with a blunt weapon. 7. Harjinath (P.W. 22) during the course of investigation arrested the accused Kesara Ram, Sukha Ram, Bhura Ramvide Ex. P. 8, Ex. P. 9 and Ex. P. 10 respectively. 8. Bhuru Ram, while under arrest, gave information (Ex. P.28) that he could get the axe recovered at his instance. Similarly, he gave information (Ex. P. 29) about the S.B.B.L. gun alleged to have been stolen at the time of the occurrence. Harjinath, in presence of motbirs, recovered axe as well as the S.B.B.L. gun vide recovery memos (Ex. P. 12 and Ex. P. 13). The camel-cart along with camel was seized vide Ex. P.3 and Ex. P.4. He also collected revenue record from the Revenue Patwari. Jonga jeep was seized vide Ex. P. 31. All the articles so seized/recovered and found blood stained, were separately packed and sealed at the time of their seizure/recovery and the packets thereof , after having been kept duly packed and sealed and leaving no chance for their tampering with, were forwarded to the Rajasthan State Forensic Science Laboratory, Jaipur (for short the RSFSL, Jaipur) and deposited thereat for chemical examination as evidenced from Ex. P.32 receipt. Rajendra Kumar Joshi (P.W.21), Deputy Superintendent of Police and Prem Singh (P.W.23), Deputy Superintendent of Police also investigated the case. The latter had filed chargesheet against the accused Kesara Ram, Bhura Ram and Sukha Ram only. Subsequently, similar charge sheet was also filed against the accused Bane Singh, Sohan Singh, Moti Ram S/o Nena Ram, Ladu Ram, Moti Ram s/o Megha Ram, Mula Ram, Sohan Lal alias Hadman Ram, Gumana Ram and Bhanwar Lal in the Court of Munsif and Judicial Magistrate, First Class, Phalodi. Both these cases were committed to the Court of Session, Jodhpur where from they were made over to the learned Addl. Both these cases were committed to the Court of Session, Jodhpur where from they were made over to the learned Addl. Sessions Judge N. 3, Jodhpur which was also a camp Court of Phalodi. Subsequently, on creation of a regular Court of Addl. Sessions Judge at Phalodi, this case came to be tried by the same Court. 9. Thetrial Court, in the first instance, on filing of charge-sheet against the aforesaid three accused-persons framed charges under Sections 147, 302 read with Section 149 and 323 read with Section 149, I.P.C. against them while, on filing of charge-sheet against rest of the nine accused-persons, in the second phase, framed charges under Sections 147, 302/149, 323/149 and 379, I.P.C. and so also, at the same time, added charge under Section 379, I.P.C. against the remaining three accused persons challaned earlier. 10. All the accused-persons put on trial pleaded not guilty to the charges and hence the trial was completed. 11. The prosecution, in all, examined 23 witnesses and also adduced documentary evidence which is to be discussed at the subsequent relevant stage. 12. The accused-persons were examined under Section 313, Cr. P.C. and all the accused-persons, except Sukha Ram, denied their presence at the place of occurrence and having committed any offence with which they were charged, as above. However, accused Sukha Ram stated that Ugrasen (deceased) hired his jonga jeep, who along with two other persons took his jeep to the Bhil’s Dhani and the jeep was parked at a little distance from the ‘Dhani’. He stood by the side of his jeep and, meanwhile, he heard sound of firing from a firearm. Those two persons, who had accompanied Ugrasen, meanwhile, returned with body of Ugrasen and kept the same in the jeep. He brought the body of Ugrasen to the village Chimana where from the village Sarpanch and Kesara Ram (accused) took Ugrasen to Phalodi who had already expired, 13. Accused Kesara Ram further maintained that criminal as well as revenue litigations were going on between Roopa Ram and Kesara Ram in respect of the field whereat the occurrence took place and that Bhur Singh (P.W. 4) was a mastermind behind the police report lodged by Smt. Saudi. 14. Theaccused-persons examined Ishra Ram (D.W.I), Ram (D.W. 2), Gorkha Ram (D.W.3), Kesu Ram (D.W.4), Kishna Ram (D.W.5) and Keshra Ram (D.W. 6), who is the accused-person, in their defence. 15. 14. Theaccused-persons examined Ishra Ram (D.W.I), Ram (D.W. 2), Gorkha Ram (D.W.3), Kesu Ram (D.W.4), Kishna Ram (D.W.5) and Keshra Ram (D.W. 6), who is the accused-person, in their defence. 15. After completion of trial, relying on the ocular testimony of P.W. 2 Smt. Saudi as also corroborated by P.W. 4 Bhur Singh and P.W. 1 Dana Ram as well as the circumstantial evidence specially the recoveries of the weapons of offences alleged to have been used in commission of the offences with which the accused-persons have been charged, medical evidence and the revenue record, while holding that the disputed land and ‘Dhani’ which were situated in Khasara No. 701 and 701/1 was of the cultivatory possession of Roopa Ram (deceased) and his family and that the accused-appellants specially Kesara Ram with the aid and abetment of his nephew Ugrasen was bent upon taking forcible possession of the said field by removing and vacating possession of Roopa Ram and his family and so they had formed an unlawful assembly with the common object of committing offences of criminal trespass and assault, at the same time, having knowledge that murder was likely to be committed resulting in conviction of the accused-appellants as aforementioned. However, vide impugned Judgment and order, the learned trial Judge convicting the appellants, acquitted rest of the seven accused-persons named above and there is no challenge against the order of acquittal by the State. Kesara Ram died during the trial and hence his appeal abated. 16. We have heard the learned counsel for the appellants as well as the learned P. P. and have also gone through the record of the trial Court along with the impugned Judgment and have perused and considered the same in order to find out illegality or incorrectness in the Judgment under appeal. 17. 16. We have heard the learned counsel for the appellants as well as the learned P. P. and have also gone through the record of the trial Court along with the impugned Judgment and have perused and considered the same in order to find out illegality or incorrectness in the Judgment under appeal. 17. The learned counsel for the appellants vehemently contended that P.W. 2 Smt. Saudi who is wife of the deceased-Roopa Ram, being a close relation and interested in the deceased against the appellants, has falsely represented and examined herself as eye-witness of the occurrence, whereas, she was not present at the place whereat the alleged occurrence took place and, instead, she was at the village Hada in Kolayat Tehsil of Bikaner District where at Roopa Ram and his brother Dana Ram along with their family members had shifted about 8 to 10 years prior to this incident after having disposed of the said field under a registered sale deed in favour of Smt. Veeran by caste Dholi. Thereafter, Smt. Veeran transferred this land to Harchand Meghwal, who had, under a registered deed of power-of -attorney, executed in favour of appellant Kesara Ram, handed over cultivatory possession of the said field to the appellant Kesara Ram who was cultivating the land for the last about 8 to 10 years prior to the incident. Accordingly, his further submission is that Smt. Saudi was brought from Hada to be introduced as an eyewitness after death of Roopa Ram which is apparent because of delay in lodging FIR with the police even after a lapse of period of not less than 12 hours of the alleged time of death of Roopa Ram. 18. Accordingly, his submission is that there was no eyewitness of the occurrence and, instead, P. W.4 Bhur Singh has also falsely deposed against the appellants since he was interested in grabbing the field defeating the right and claim of Kesara Ram. Therefore, he further contended that there is no eye-witness of the occurrence and, at the same time, he submitted that Kesara Ram and his sons were in cultivatory possession of the field whereat the occurrence took place at the time of and prior to the incident and the ‘Dhani’ including the ‘jhumpa’ whereat this incident took place was raised by Kesara Ram himself and none else. 19. 19. He further submitted that just before the occurrence, Roopa Ram at the instigation of P.W. 4 Bhur Singh had returned to the ‘Dhani’ occupying the same illegally and forcibly and it was Ugrasen who accompanied by some other persons, sought indulgence and good offices of P.W. 3 Bhur Singh & Ors. for conciliation and compromise into the matter and, at the time of the occurrence itself , they had also come for the same purpose and that Ugrasen and Mahendra Singh, identified as Manager, only entered the ‘Dhani’ of Roopa Ram while others were waiting outside near the jonga jeep parked on the way and since Roopa Ram intentionally fired at and killed Ugrasen and so it was Mahendra Singh who snatched away the gun from Roopa Ram and inflicted injuries with the butt of the gun resulting in death of Roopa Ram and so his submission is that none of the accused-appellants is liable for any of the offences with which they were charged and consequent upon trial they were so convicted and sentenced under the impugned order. 20. Besides, it has also been contended that the recoveries of the alleged weapons of offences are not proved and so also it is not proved further that the same weapons were used in commission of offences by any ot the convict-appellants. 21. Accordingly, his further submission is that even if it is assumed that the accused-appellants had gone to the ‘Dhani’ of Roopa Ram whereat Ugrasen was killed at the hands of Roopa Ram (deceased), even Bhura Ram was entitled to have acted in exercise of right of private defence of property and person and so also, since Roopa Ram had otherwise killed Ugrasen to death, in such circumstances, there being immediate apprehension of death to Bhura Ram etc., in case Roopa Ram was killed to death and Smt. Saudi was also similarly hurt, none of the accused-appellants can be held liable for commission of any offences. .22. However, the learned P. P., while taking through the prosecution evidence and so also that of the defence, .specially on the basis of Ex. P. 17 to Ex. .22. However, the learned P. P., while taking through the prosecution evidence and so also that of the defence, .specially on the basis of Ex. P. 17 to Ex. P. 22 revenue records, in an attempt to repel contentions of the learned counsel for the appellants, maintained that the disputed land was, admittedly, of the ‘khatedari’ of Roopa Ram and his brother Dana Ram who, being by caste Bhils, were members of a Scheduled Tribe and, accordingly, in the first instance, they could not have sold this land to Smt. Veeran who is alleged to be Dholi by caste being a member of Scheduled Caste. Clause (b) of Section 42 of the Rajasthan Tenancy Act, clearly forbids any sale, gift or bequest by a member of Scheduled Tribe to a member of Scheduled Caste or vice-versa. Accordingly, Roopa Ram and Dana Ram were not legally permitted to have made any sale of such land and so also Smt. Veeran could not have acquired any right, title or interest in the land and so also she was not vested with any right, title or interest in the land to be further transferred by way of sale in favour of Harchand Meghwal though a member of Schedule Caste. Much less, the accused-appellant could not have acquired any right, title or interest in the disputed land through the alleged general power-of-attorney purporting to have been executed by Harchand Meghwal in favour of Kesara Ram. 23. Much less, the accused-appellant could not have acquired any right, title or interest in the disputed land through the alleged general power-of-attorney purporting to have been executed by Harchand Meghwal in favour of Kesara Ram. 23. Accordingly, the learned P. P. has maintained that, since even as per defence version, few days prior to the incident, at the instigation of P. W. 4 Bhur Singh or otherwise, Roopa Ram and his family members had returned to the ‘Dhani’ and they were in its established possession at and before the time of occurrence and, therefore, the accused-persons had no justification or any legal entitlement to have raided their ‘Dhani’ in order to evict them forcibly from there and, accordingly, when Roopa Ram apprehended immediate danger and grievous injury to his body, he was left with no alternative but to have exercised his private right of defence of person and property by resorting to a fire at the person who was bent upon to effect forceful entry into the jhumpa’ whereat Roopa Ram was hiding himself and accordingly, by firing from his gun, Roopa Ram did not commit any offence and, therefore, since Ugrasen and his associates were aggressors and, therefore, no right of private defence of person or property accrued to the aggressors and, as a result, Bhura Ram and his associates were liable for commission of the offences with which they were charged resulting in their conviction under the impugned Judgment . Therefore, the impugned Judgment and order warrant no interference by this Court. .24. On consideration of rival contentions as reiterated hereinbefore, the following questions for determination for the purpose of disposal of this appeal arise: 1. Whether the appellants formed an unlawful assembly with the common object of commission of offences of theft and hurt and also committed rioting. 2. Whether any offence of theft was committed by all or any accused/appellant(s) in prosecution of the common object of the unlawful assembly. 3. Whether Roopa Ram was killed by Bhoora appellant and the same amounts to murder, as defined under Section 300, I.P.C. being covered by any one or more clauses embodied there under. 4. Whether Kesara Ram intentionally caused simple injuries to Smt. Saudi with a lathi. 5. 3. Whether Roopa Ram was killed by Bhoora appellant and the same amounts to murder, as defined under Section 300, I.P.C. being covered by any one or more clauses embodied there under. 4. Whether Kesara Ram intentionally caused simple injuries to Smt. Saudi with a lathi. 5. Whether the appellant Bhoora Ram committed aforesaid offences while being member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object fastening his co-appellants vicariously liable with the aid of Section 149, I.P.C. 25. Now, we proceed to dispose of the aforesaid points/questions at seriatim: Re-:l and 2 26. At the out set, it may be stated that this case is out come of dispute in regard to cultivatory possession of field Khasara No. 701 which was subsequently given Khasara Nos. 701 and 70 1/1 by the revenue authorities. 27. Admittedly, the disputed land, measuring 148 bighas and 12 biswas, falling in village Chaku was of the joint ‘khatedari’ of Rooma Ram (deceased) and his brother Dana Ram. P.W.I Dana Ram denied that they had disposed of land under a registered sale-deed on 18-10-82 in favour of Smt. Veeran and since then, after leaving their field and ‘Dhani’, they moved to village Hada and they had also applied for allotment of land in Kolayat Tehsil of Bikaner District. However, he stated that a forged sale-deed was executed purporting to have been done by Smt. Veeran in favour of Harchand Meghwal. He also clearly denied that new jhumpa’ was raised by Kesara Ram (deceased-appellant) and, instead, maintained that jhumpa’ existing at the site whereat occurrence took place was raised and built by him and his brother. He did admit that though Kesara Ram claimed to have obtained a general power of attorney in his favour from Harchand Meghwal but Kesara Ram could never cultivate and take over possession of the disputed field. He also admitted that some criminal and revenue disputes were pending in different Courts as also claimed from the defence side. 28. P.W. 2 Smt. Saudi, wife of deceased Roopa Ram, stated that the disputed field was in their cultivatory possession from the time of her father-in-law and before whereat they had built up their ‘Dhani’ and were in cultivatory possession of the field. 28. P.W. 2 Smt. Saudi, wife of deceased Roopa Ram, stated that the disputed field was in their cultivatory possession from the time of her father-in-law and before whereat they had built up their ‘Dhani’ and were in cultivatory possession of the field. They had never abandoned or deserted their ‘Dhani’ and the field whereat the occurrence took place. Both Roopa Ram and Dana Ram along with their wives and children were living in the ‘Dhani’ and cultivating the field. She did admit that her parents were living in village Hada but her husband as well as brother-in-law Dana Ram never shifted to Hada permanently. She also denied the alleged fact of execution of sale-deed in the year 1982 by Roopa Ram and Dana Ram in favour of Smt. Veeran and, subsequently, by Smt. Veeran in favour of Harchand Meghwal. P.W. 17 Radha Kishan, Revenue Patwari, Patwar Circle, Chaku has also stated that the land of original Khasra No. 701 was recorded in the ‘khatedari’ of Roopa Ram and Dana Ram and, subsequently, Roopa Ram and Dana Ram having half -half share in the land, executed a sale-deed in favour of Smt. Veeran Dholi and, consequently, mutations No. 875 and 876 being respectively Ex. P. 17 and Ex. P. 18 were opened. Smt. Veeran further sold and transferred this land in favour of Harchand Meghwal under a registered sale-deed and mutation No. 976 was opened and accepted on 15-9-87. However, as also stated by him, as per endorsements on the reverse of Ex. P. 17 to Ex. P. 19 mutation form of registration, a clear note has been given by the Patwari as also stated by him that these mutations were cancelled by the Revenue Tehsildar, Phalodi and this could not be challenged by the defence as well. Besides, Jamabandis(Khatoni) from Smvt. 2039 to Smvt. 2042 and Smvt. 2044 to Smvt. 2047 being Ex. P.20 and Ex. P.21 as well Khasra Girdawari (four years) for the period from Smvt. 2040 to Smvt. 2043 (Ex. P.22) clearly show that the recorded ‘khatedars’ of the land falling in undivided Khasara No. 701 were Roopa Ram and Dana Ram sons of Dhoola. 29. P.W.I Dana Ram and P.W. 2 Smt. Saudi throughout maintained that they are Bhils by caste and this fact that they are Bhils by caste has not been challenged from the defence side. P.22) clearly show that the recorded ‘khatedars’ of the land falling in undivided Khasara No. 701 were Roopa Ram and Dana Ram sons of Dhoola. 29. P.W.I Dana Ram and P.W. 2 Smt. Saudi throughout maintained that they are Bhils by caste and this fact that they are Bhils by caste has not been challenged from the defence side. In view of these facts and circumstances, as borne out of the aforesaid statements of P.W. 1 Dana Ram, P.W. .2 Smt. Saudi and P.W. 17 Radha Kishan, though Roopa Ram and Dana Ram were Bhils by caste and hence as per Entry at S. No. 1 of Part XIII (Raj) of the Constitution (Scheduled Tribes) Order, 1950 covering all castes under the classification of Scheduled Tribes, Bhils are notified as a Scheduled Tribe whereas Smt. Veeran, who is alleged to have purchased the disputed land from Dana Ram and Roopa Ram, being a Bhil is as such a member of Scheduled Tribes, is by caste Dholi and so also Harchand being Meghwal, who is alleged to have subsequently purchased the same land under a registered sale-deed from Smt. Veeran, both are members of Scheduled Caste as per Entry at S. Nos. 23 and 26 of Part XV (Raj) of the Constitution (Scheduled Castes). This leaves no doubt that both Dana Ram and Roopa Ram, being real brothers were, Bhils by caste and as such they were members of Scheduled Tribe whereas both Smt. Veeran as well as Harchand Meghwal were members of Scheduled Caste. 30. As regards transfer of agricultural land, Section 42(b) of the Rajasthan Tenancy Act, provides that sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void if such sale, gift or bequest is by a member 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. Accordingly, admittedly, since this transfer is alleged to have been effected after amendment of 1-5-64 and, hence, the disputed transfers by way of even registered sale-deeds were void and, therefore, neither Smt. Veeran nor Harchand Meghwal who were members of Scheduled Caste could acquire any right, title or interest in the disputed land under the garb of registered sale-deeds alleged to have been executed by Roopa Ram and Dana Ram Bhils who were not vested with legal rights to transfer such rights by way of sale, gift or bequest etc. as they are alleged to have purported. 3.31. Theaforementioned entries of Jamabandi and Khasara Girdawari have been proved by none but P.W. 17 Radha Kishan, Revenue Patwari, who has also stated that he went for the purpose of Girdawari to find out crops standing at the site and recorded the factum of crops sown and standing at the site in the aforesaid revenue record. He has maintained that both Roopa Ram and Dana Ram are recorded as ‘khatedars’ of the land as borne out of the entries of the aforesaid documents. The statements of Radha Kishan clearly shows that there was never a legal transfer of any right, title or interest in the aforesaid agricultural land recorded in the ‘khatedari’ of Roopa Ram and Dana Ram. The mutations so opened in the name of Smt. Veeran and Harchand Meghwal also stood cancelled in view of the aforesaid legal provisions. 4.32. Itmay also be mentioned that the persons who managed execution of the aforesaid disputed sale deeds dated 18-10-82, 4-4-84 and 19-8-87 as borne out of Ex. P. 17 to Ex. P. 19, the same further reveal that the caste of Dana Ram and Dana has been shown as Nayakas but they are Bhils by caste as held above. But, for the present purpose, Nayakas are also members of Scheduled Tribe under the aforesaid Order of 1950 and, being Nayakas, both Roopa Ram as well as Dana Ram could not have legally transferred any right, title or interest against the provisions of Section 42(b) of the Rajasthan Tenancy Act. 5.33. Resultantly, so far as title of the disputed land is concerned, the same vested and continues to vest in Roopa Ram and after his death in his legal heirs as well as Dana Ram. 6.34. 5.33. Resultantly, so far as title of the disputed land is concerned, the same vested and continues to vest in Roopa Ram and after his death in his legal heirs as well as Dana Ram. 6.34. Asregards actual cultivatory possession of the disputed land and so also the ‘Dhani’ whereat the incident took place, though P.W. 17 Radha Kishan admitted that he never knew Roopa Ram by face and so identity of Roopa Ram was not known to him and he had given evidence on the basis of revenue record referred to above. He also admitted that even after initiation of short-lived p