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1999 DIGILAW 1044 (RAJ)

Naini Bai v. State of Rajasthan

1999-08-16

ARUN MADAN

body1999
JUDGMENT 1. :- The case of the petitioners in short is that land bearing Khasra No. 235/279 measuring 11 Bighas and 12 Biswa of Village Amrit Kuwa, Tehsil Sangod, District Kota was the Muafi land of Asthal Bardiya and Heera Das son of Ram Kishan Das was its Muafidar. The said Muafi land after introduction of Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 for short "the Act of 1952" was resumed under Section 22 of the said Act and all rights, title and interest of the Muafidar stood vested with the State Government w.e.f. 1.7.1963. It is further the petitioners's case that long before the resumption of Jagirs, the original Muafidar namely Heeradas died and there was no heir of said Muafidar. Birdha, the husband of petitioner No.1 Naini Bai and father of petitioners Nos. 2 to 4 have been cultivating this land since long. The Tehsildar Sangod also authorised Birdha to cultivate this land on payment of rent and the name of Birdha was recorded as khatedar tenant in the revenue records. The Mutation order dated 29.5.1954 was passed long before the Rajasthan Tenancy Act, 1955 for short "the Act of 1955" came into force w.e.f. 15.10.1955. At the time of resumption of Muafi, the said land stood vested with the State Government by operation of law and hence ceased to hold the character of Muafi. Birdha who was tenant over the said land long before the commencement of the Act of 1955 automatically became the Khatedar tenant of the said land as per Section 15 of the said Act and the Mutation of Khatedar was opened by Tehsildar Sangod on 5.7.1969. Thereafter, Birdha was recorded as tenant in possession in the Jamabandi of Samvat 2019 to 2022. The petitioners acquired Khatedari rights as sub-tenant being the wife and legal heirs of late Birdha by efflux of time and consequently by operation of law as on the date when the Act of 1955 came into force and since then they were in cultivators possession of the land as Khatedars, continued to be so till date. 2. Before referring to the legal aspect of the matter with reference to the provisions of the Act of 1952 as well as the Act of 1955, it is pertinent to mention the background of the case. which has given rise to the filing of this writ petition. 3. 2. Before referring to the legal aspect of the matter with reference to the provisions of the Act of 1952 as well as the Act of 1955, it is pertinent to mention the background of the case. which has given rise to the filing of this writ petition. 3. In the year 1987, Tehsildar (Revenue Records) Sangod requested the Additional Collector, Kota to make a reference under Section 82 of the Rajasthan Land Revenue Act, 1956 for short "the Act of 1956" regarding the status Muafi land of Math Asthal Bardiya. Tehsildar Sangod opened Mutation of Khatedari under Section 15 of the Act of 1955. The contention of the petitioners is that Tehsildar was not empowered to confer any khatedari rights to any person on a Muafi land other than the petitioners. Being unaware of the correct legal position as regards vesting of the Muafi land as on the date when the Act of 1952 as well as Act of 1955 came into force and as per the provisions of the Act of 1952, consequent upon the abolition of Jagirs in the State of Rajasthan of erstwhile Jagirdars, all the lands which were hitherto held by the Jagirdars including the land in dispute were resumed and consequent upon the same all rights, title and interest stood vested with the State Government by operation of law w.e.f. 1.7.1963, i.e. the date when the Act of 1952 came into force. Consequently, Additional Collector, Kota made a Reference under Section 82 of the Act of 1956 to the Board of Revenue, Ajmer with a view to ascertain the status of khatedars who were hitherto in cultivatory possession of the similarly placed lands including the suit land. In other words, the very object of the legislature in introducing the Act of 1955 was with a view to clarify the position with respect to the conferment of Khatedari Rights on any person who is Khudkasht or who was holding the possession of the land in the capacity as a sub-tenant. In other words, the very object of the legislature in introducing the Act of 1955 was with a view to clarify the position with respect to the conferment of Khatedari Rights on any person who is Khudkasht or who was holding the possession of the land in the capacity as a sub-tenant. On this aspect of the matter, the legal position is very clearly settled that no khatedari rights shall accrue to a sub-tenant or even if mortgaged tenancy in the restricted sense, he shall have to seek remedy if he wants to ascertain his status either as tenant or sub-tenant by holding over the land as on the date when the Act of 1955 came into force. He has a right to seek remedy under Section 19 of the Act of 1955 which clearly spells out the categories of the land that may be allotted as Khudkasht. Section 19 stipulates, thus: "19. He has a right to seek remedy under Section 19 of the Act of 1955 which clearly spells out the categories of the land that may be allotted as Khudkasht. Section 19 stipulates, thus: "19. Conferment of rights on certain tenants of Khudkasht and sub-tenants.-(1) Every person who, at the commencement of this Act, (a) was entered in the annual registers then current as a tenant of Khudkasht or sub-tenant of land other than grove land, or (b) was not so entered but was a tenant of Khudkasht or sub-tenant of land, other than grove land, shall, as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1959, hereinafter in this Chapter referred to as the appointed date, become, subject to the other provisions contained in this Chapter, the Khatedar tenant of such part of the land held by him as does not exceed the minimum area prescribed by the State Government for the purpose of clause (a) of sub-section (1) of section 180 or exceeds the maximum area from which such person is liable to ejectment under clause (d) of the said sub-section of the said section and rights in improvements in that part of the said land shall also accrue to such person : Provided that Khatedari rights or rights in improvements shall not so accrue (i) if such part of the said land is held from any of the persons enumerated in section 46, or (ii) if such rights therein may not accrue under the proviso to sub-section (1) of section 15 or under section 15A or under section 15B or under section 16, or (iii) if such person has, after the commencement of this Act and before the appointed date, ceased to be such tenant of Khudkasht or sub-tenant by virtue of lawful surrender or abandonment in accordance with the provisions of this Act or because of his having been ejected in accordance with those provisions by and. under the decree or order of a competent revenue court. under the decree or order of a competent revenue court. (1-A) Subject to the exceptions contained in the proviso to sub-section (1), every person referred to in that sub-section shall, as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1961 hereinafter in this chapter referred to as the "appointed day", become, subject to the other provisions contained in this chapter, the Khatedar tenant of that part of the land held by him in which he has not acquired khatedari rights under sub-section (1), if before the appointed day no proceeding for his ejectment under clause (a) or clause (d) of sub-section (1) of section 180 shall have been started within the time limit prescribed by section 182A or if on that day no such proceedings previously started might have been pending. (1AA) Every person who, on the 31st day of December, 1969 was entered in the annual registers then current as the tenant of Khudkasht or sub-tenant or was not so entered, but was a tenant of Khudkasht or sub-tenant of land other than grove land, shall, subject to the exceptions contained in the proviso to sub-section (1), as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1979 hereinafter in this chapter referred to as the 'said date' become, subject to other provisions contained in this chapter, the khatedar or tenant of that part of the land held by him in which he has not acquired khatedari rights under sub-section (1) or sub-section (1A) if before the said date, no proceedings from his ejectment under clause (a) or clause (b) of sub-section (1) of section 180 shall have started within the time limit prescribed in section 182A or if on that date, no such proceeding previously started might have been pending: Provided that no khatedari rights shall accrue under the sub-section in the land which has been, or is liable to be declared surplus under any law relating to the imposition of ceiling on agricultural holdings : Provided further that no khatedari rights shall accrue under this sub-section on the land belonging to the scheduled caste or scheduled tribe but it shall not be the case if the sus-tenant is the member of scheduled caste or scheduled tribe: Provided also that the acquisition of khatedari rights under this sub-section shall be subject to the provisions of section 17 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (Rajasthan Act 11 of 1973). (2) Every tenant of khudkasht or sub-tenant referred to in clause (b) of sub-section (1) claiming that the rights mentioned in that sub-section accrued to him on the appointed date in the whole or any part of his holding shall, within two years of that date and on payment of a court-fee of (Fifty paisa), apply to the Assistant Collector having jurisdiction, praying for a declaration that such rights accrued to him as aforesaid, and the provisions of sub-section (5) of section 15 shall apply to such application and such tenant of khudkasht or sub-tenant shall not be regarded to have become the khatedar tenant of his holding or part, as the case may be, until he has obtained the declaration so prayed for." 4. The, contention of Mr. Bardhar, learned counsel for the petitioners is that notwithstanding the aforesaid legal position, the petitioners' case is still better because admittedly all Jagirs stood abolished by the Act of 1952 and as regards tenancy, the petitioners were admittedly holding the land as sub-tenants and were in cultivators possession of the same as Muafidars as on the date when the Act of 1955 came into force. Learned counsel for the petitioners has not been able to point out as to what was the assessment of the land revenue though as per Annexure-2 it has been stated that land revenue has been paid by the petitioners. From the perusal of Annexure-2, it is pertinent that the petitioners have been in cultivators possession and even on resumption thereof they have been paying the 'lagan' i.e. the land revenue but in my view, this fact by itself would not confer any legal rights to the petitioners to claim any right, title or interest over the land in dispute or to claim continuity being in possession of the said land since admittedly they were sub-tenants and since the sub-tenant cannot claim any legal right unless and until a regular lease has been created in his favour either expressly or impliedly by the tenant as stipulated under the provisions of Section 13 of the Act of 1955 thus: "13. (Khatedari rights upon resumption (or abolition)-On the resumption (or abolition) 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 this Act; Provided that the Zamindar or Biswedar holding Khudkasht land on the abolition of his estate under the Rajasthan Zamindari and Biswedari Abolition Act, 1959, shall become the malik of such Khudkasht land and shall be entitled to all the rights conferred and subject to all the liabilities imposed on a Khatedar tenant by or under this Act." 5. Be that as it may, the legal position is very clear that even if the tenant on resumption of Jagirs, cannot claim any continuity over the land on the strength of his mere possession since admittedly all such lands which were Jagir lands stood vested with the State Government automatically by operation of law consequent upon commencement of the Act of 1952. I am of the considered opinion that the petitioners who are sub-tenants of Muafi land as per their own statement stood resumed w.e.f. 1.7.1963, are admittedly not entitled to claim any continuity over the said land. The petitioners have not been able to show any document on the record from which it can be inferred that consequent upon the resumption of land by the State Government as on the date when the Act of 1952 came into force, they had applied for permission of the State Government to continue in possession of the said land as Khudkasht or even as a sub-tenant. The law is well established that even as regards the khatedari rights, the same can be acquired only if the tenant is admitted by the person having the right to let but the tenant admitted to Khudkasht as a sub-tenant is certainly not entitled to become a Khatedar under any circumstances. 6. Alternatively, if the petitioners had so desired, it was open to them to have applied by filing a declaratory suit under Section 22 of the Act of 1952 consequent upon the resumption of the land by the State Government but that too he has not done in the instant case. 6. Alternatively, if the petitioners had so desired, it was open to them to have applied by filing a declaratory suit under Section 22 of the Act of 1952 consequent upon the resumption of the land by the State Government but that too he has not done in the instant case. Section 22 of the Act deals with consequences of resumption and the conditions pertaining thereto. Sub-section (b) of Section 22 of the Act of 1952 stipulates that all rights, title and interests created in or over the jagir by the jagirdar or his predecessor-in-interest shall, as against the Government, cease and shall stand determined. The effect of this provision is that all rents and ceases in respect of any holding (including any land leased by or on behalf of the jagirdar for any purpose other than agriculture) in the jagir land for any period after the date of resumption stood payable to the State Government. Thus, the Muafi land stood also resumed by the State Government. 7. Hence, in the backdrop of above events in my view, the finding of the Board of Revenue that the land belongs to deity is an erroneous finding. The Revenue Appellate Authority (RAA) as well as Board of Revenue grossly erred in not having taken into consideration that consequent upon resumption of Jagirs by the State Government on the introduction of the Act of 1952, when all lands stood vested with the State Government then, where is the question by holding over the said land belonging to deity by the petitioners which finding in my view is perverse and manifestly illegal and unjust and hence, is not sustainable in law. It is only a dispute between the State and the erstwhile Jagirdar which can be entertained under the Act of 1952 for settlement and not as regards the deity and the private individuals such as the petitioners which is not the case here. Hence, the Revenue Appellate Authority as well as Board of Revenue have failed to look into the salient aspect of the matter with reference to the provisions of the Act of 1952 as well as the Act of 1955 as referred to above. 8. In support of his contention, Mr. Hence, the Revenue Appellate Authority as well as Board of Revenue have failed to look into the salient aspect of the matter with reference to the provisions of the Act of 1952 as well as the Act of 1955 as referred to above. 8. In support of his contention, Mr. Bardhar, learned counsel for the petitioners has placed reliance upon the Division Bench judgment of this Court in the matter of Anandi Lal vs. State of Rajasthan and ors; 1995(1) RLR 555 = 1996(2) WLC 36 . This is a case wherein an appeal was preferred by the appellant-Anandilal against the decision of the learned Single Judge of this Court with regard to Section 15 and 82 of the Act of 1955 and the Act of 1956. The question which arose before the learned Division Bench of this Court related to interpretation of the provisions of Section 232 of the Act of 1955 i.e. the exercise of revisional power by the Board of Revenue where the revision has been preferred with an inordinate delay i.e. whether the relief sought for by the petitioners would not be barred in view of the Limitation Act 1963 ? It was held by this Court that invocation of powers after an inordinate delay in exercise of powers after unreasonable length of time would be wholly unjust and improper hence, requirement of reasonableness is to be read into the provisions conferring the said power. 9. The ratio of the aforesaid decision in my view is neither attracted nor applicable to this case. Admittedly, it is not a case of delay as regards Reference to the Board of Revenue nor it is a case of reasonableness in the matter of conferring power. Admittedly, it is a case of continuity of possession by a sub-tenant by holding over against the express provisions of the Statute which itself is not permissible either under the provisions of the Act of 1952 or the Act of 1955. Hence, the petitioners are not entitled to retain continuity of possession on the strength of their mere possessory rights as against the true and lawful owner viz. the State Government to whom the land in question stood automatically vested by operation of law. 10. Hence, the petitioners are not entitled to retain continuity of possession on the strength of their mere possessory rights as against the true and lawful owner viz. the State Government to whom the land in question stood automatically vested by operation of law. 10. I am fortified in my aforesaid observations from the Division Bench judgment of this Court in the matter of Durga Lal vs. Shankerlal 1984 RRD 940 wherein, the case of the appellant was that suit was filed by the respondent-plaintiff before the Sub Divisional Officer, Kota with an allegation that agricultural land bearing particular khasra numbers situated in Village Rangtalab of Tehsil Ladpura District Kota were Muafi lands of the deity of Sanicharji Virajman Kota. The said agricultural lands were sub-let on behalf of the deity to the appellant in Samvat 2016 for a period of 5 years on annual rent of Rs. 100/-. The period of said tenancy expired in Samvat 2022 but the appellant did not restore the possession of the disputed land to the respondents. It was stated that after the expiry of sub-tenancy by efflux of time, the status of the appellant over the suit land became that of trespasser. The respondents therefore as Manager are shebait of the said deity filed a suit for declaration to the effect that they were khatedars of the suit lands and also prayed for a decree for ejectment against the appellant and also claimed mesne-profit from samvat 2020. The trial Court held that at the time of resumption of Muafi on a particular date, the appellant was in possession of the suit lands for the past 28 years as tenant and hence, he became khatedar tenant by operation of law either under Section 15 of the Act of 1955 or on resumption of Muafi. The trial Court dismissed the suit of the plaintiff-respondents against which first appeal was preferred before the Revenue Appellate Authority Kota. The said appellate authority held that deity was a perpetual minor and even after resumption of Muafi, the sub-tenant could not acquire the khatedari rights and he is liable to ejectment under Section 180(1)(b) of the Act of 1955. This finding was confirmed by the Board of Revenue in appeal. The said appellate authority held that deity was a perpetual minor and even after resumption of Muafi, the sub-tenant could not acquire the khatedari rights and he is liable to ejectment under Section 180(1)(b) of the Act of 1955. This finding was confirmed by the Board of Revenue in appeal. In appeal, this Court while allowing the same observed that upon resumption of the muafi, the appellant (respondent) was left with no rights whatsoever in the suit lands except to get the annuity in lieu of the resumption and a suit for declaration of khatedari rights or ejectment of the appellant was not maintainable at the instance of the respondent deity. 11. In the instant case, even the finding of the Revenue Appellate Authority as well as Board of Revenue are contrary to the provisions of the Act of 1952 as well as the Act of 1955 as discussed above since consequent upon abolition of Jagirs upon introduction of the Act of 1952 all such Muafi lands stood vested with the State Government. There is no evidence on the record to prove that the lease was created in favour of the tenant by the State Govt. from whom the respondents got their rights as a sub-lessee. 12. I am of the considered view that consequent upon resumption of land in question on abolition of Jagirs, the propriety rights stood automatically vested with the State Government. Under these circumstances, a sub-tenant could continue in possession only by virtue of execution of appropriate covenant or an agreement of sub-lease and not otherwise. Mere khatedari rights do not confer any legal right, title or interest with sub-tenant to continue in possession of the land as against the right, title and interest of the State Government which would obviously take precedence over that of the sub-tenant. Since none of the aforesaid conditions exist in the instant case, mere possessory rights as Khatedar would not confer any right with the petitioners to continue in possession. Since none of the aforesaid conditions exist in the instant case, mere possessory rights as Khatedar would not confer any right with the petitioners to continue in possession. The status of the petitioners is no better than that of trespassers and even the plea of adverse possession is not available to them as against the true owner i.e. the State Government.As a result of above discussion, the writ petition being devoid of any merit is dismissed and the respondents will be free to take necessary steps for eviction of the petitioners from the suit land as they may be so advised in accordance with law.Petition Dismissed. *******