JUDGMENT 1. - The petitioner - State has by way of the instant revision petition challenged the sustainability of the impugned-order dated 5.2.1999 of learned Additional Sessions Judge No. 1 Sikar passed in Cr.Revision No. 2/96 whereby, the. said revisional court while allowing the revision preferred by Jagan Singh (respondent No. 1 herein) set-aside the order dated 17.11.1995 of Sub Divisional Magistrate Sikar who had by the said impugned-order appointed the SHO Kotwali, Sikar to act as Receiver in the matter by directing the attachment of the land in question till the matter is decided by the competent court. The u/s.397 read with 401, Criminal Procedure Code against judgment of Miss Chandrakala Yadav, Addl. Sessions Judge No. 1, Sikar dated 5.2.99 passed in Cr. Rev. Pet. No. 2./96 restoring the possession of disputed land to Jagan Singh (resp. No. 1 herein). learned Sessions Judge had directed that possession of the disputed land be restored to respondent No. 1 Jagan Singh and compliance report be submitted to the said court within one week w.e.f. the date of the order dated 5.2.1999. 2. The facts which are relevant for deciding the controversy between the parties briefly stated are that the land in question comprising of Khasra Nos. 378, 318 and 379 measuring 11 Bighas and 17 Biwas situated in Sikar were recorded in khatedari of different persons while khatedari rights as per Section 19 of the Rajasthan Tenancy Act (Act No. 3 of 1955) for short "the Act" were conferred earlier upon Chhotey Lal Meena (the then original Khatedar) only as regards 7 Bighas of land forming part of the aforesaid khasra numbers. This fact is borne out from Jamabandi from Samvat 2011-2014 and from Samvat 2014-2017 on the record. It is pertinent to mention that Act of 1955 came into force w.e.f. 15.10.1955 vide Gazette Notification dated 24.3.1955. This fact is borne out from Jamabandi from Samvat 2011-2014 and from Samvat 2014-2017 on the record. It is pertinent to mention that Act of 1955 came into force w.e.f. 15.10.1955 vide Gazette Notification dated 24.3.1955. Section 19 of the Act deals with conferment of rights on certain tenants of Khudkasht and sub-tenants whose names were duly entered in the annual registers then in force as a tenant of Khudkasht or sub-tenant of landlord other than grove land or if it was not so entered but as tenant of Khudkasht or sub-tenant of land, other than the grove land shall, as from the date of commencement of the Amending Act of 1959 subject to other provisions contained in the Act, the Khatedar tenant of such part of the land held by him as do not exceed the minimum area prescribed by the State Government for the purpose of clause (a) of sub-section (1) of Section 180 or if it exceeds the maximum area from which such person is liable to ejectment under clause (d) of sub-section (1) of Section 11 of the Act and rights in improvements in that part of the land shall also accrue to such person. 3. Chhotey Lal Meena, (the then original Khatedar) is purported to have transferred the land in question in favour of respondent No. 1 Jagan Singh through a registered sale-deed dated 15.9.1961. Thereafter, he filed a suit on 26.7.1963 before the Civil Court for cancellation of the sale-deed dated 15.9.1961 which was decreed by the trial Court and appeal filed by respondent No. 1 Jagan Singh was also dismissed by the Appellate Court maintaining the order of the trial Court. Being aggrieved against the order of the Appellate Court, Jagan Singh (respondent No. 1 herein) filed a second appeal before this Court bearing S.B.Civil Second Appeal No. 392/70 which was allowed by this Court vide order dated 4.9.73 and the plaintiff (Chhotey Lal Meena) was directed to file a fresh suit before the competent revenue court holding that since the said suit was exclusively triable by the revenue court, it was consequently directed that the trial court shall return the plaint to the plaintiff for its presentation to the competent revenue court. Consequently, the plaintiff Chhotey Lal Meena filed the suit before the revenue court viz. the Sub Divisional Officer, Sikar on 14.12.1974. Consequently, the plaintiff Chhotey Lal Meena filed the suit before the revenue court viz. the Sub Divisional Officer, Sikar on 14.12.1974. Thereafter, Chhotey Lal Meena died on 4.2.1975 and his wife Smt. Bhagwani was substituted as his legal heir. The trial Court dismissed the suit vide order dated 27,9.1989 but in appeal filed by Smt.Bhagwani, wife of deceased-Chhotey Lal Meena the Revenue Appellate Authority Sikar, set-aside the judgment and decree of the trial Court by directing vesting of land in question in State Government vide its order dated 8.4.1993. 4. Being aggrieved against the order of Revenue Appellate Authority dated 8.4.1993, Jagan Singh (respondent No. 1 herein)preferred second appeal before the Board of Revenue which was dismissed by the Board in-limine vide order dated 14.6.1993 against which, Jagan Singh preferred a writ petition before this Court bearing S.B.Civil Writ Petition No. 4955/93 which is pending. 5. During the course of hearing, this Court has been informed that the learned Board of Revenue did not grant any stay in favour of Jagan Singh and this Court also in SBCWP No. 4955/93 dismissed two stay applications which were filed one after another by respondent No. 1 Jagan Singh vide its orders dated 15.5.1996 and 6.4.1999, respectively. 6. In the context of this background, it is noteworthy to mention that the Collector Sikar made two References (vide No. 5/89 & 1/92) under Section 82 of the Land Revenue Act to the Board of Revenue Ajmer and the Board of Revenue Ajmer vide its orders dated 22.1.1990 as well as 6.3.1992 accepted the same by observing that right of opening a Mutation under Section 19 of the Act vests only with the Assistant Collector and not with Tehsildar and Tehsildar Sikar had opened the Mutation in favour of Chhotelal Meena (the original Khatedar) by exercising jurisdiction not vested in him under the Act. Against the said orders, as I am informed by the learned counsel for the State, no appeal or revision has been preferred by Jagan Singh (respondent No. 1 herein) and the aforesaid orders of the Board of Revenue have thus attained finality. 7. Against the said orders, as I am informed by the learned counsel for the State, no appeal or revision has been preferred by Jagan Singh (respondent No. 1 herein) and the aforesaid orders of the Board of Revenue have thus attained finality. 7. From the perusal of the order dated 8.4.1993 passed by Revenue Appellate Authority Sikar in appeal preferred by Smt. Bhagwani against the order dated 27.9.1989 in Civil Suit No. 43/87, it is borne out that order of the learned Board of Revenue dated 6.3.1992 was duly examined and considered by the Appellate Authority and there is specific observation to the effect that as per Section 19 of the Act, the powers to examine the propriety of the mutation is not vested with the Tehsildar whereas, the powers to consider the same vests only with the Assistant Collector and since the Tehsildar had in excess of his jurisdiction directed the mutation of the land in question in favour of Jagan Singh (respondent No. 1) who is claiming his Khatedari rights over the land in question itself being illegal, non-est and void being contrary to Section 19 of the Act, the same could not be given effect in favour of respondent No. 1. Consequently, the Revenue Appellate Authority vide its order dated 8.4.1993 directed that the land in question shall stand vested with the State (the petitioner herein) declaring Khasra Nos. 318, 376 and 379 as State property with the specific direction to Tehsildar Sikar to take necessary steps for obtaining possession in favour of State Govt. in accordance with law. 8. Thereafter, the SHO PS Kotwali, Sikar, filed a criminal complaint on 22.6.1995 against Jagan Singh (respondent No. 1) before the learned SDM Sikar on the allegations interalia, that he was in unlawful possession of the land in question and was indulging in acts which were likely to cause breach of peace and preventive measures be taken against him in accordance with law. Thereafter, the SDM Sikar vide his order dated 17.11.1995 appointed SHO P.S.Kotwali Sikar to act as Receiver over the land in dispute as per the requirements of Section 146(2) Criminal Procedure Code which envisages, as under: 'Power to attach subject of dispute and to appoint receiver. 146. Thereafter, the SDM Sikar vide his order dated 17.11.1995 appointed SHO P.S.Kotwali Sikar to act as Receiver over the land in dispute as per the requirements of Section 146(2) Criminal Procedure Code which envisages, as under: 'Power to attach subject of dispute and to appoint receiver. 146. (2) When the Magistrate attached the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908) : Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate: (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just." 9. Being aggrieved against the aforesaid order dated 17.11.1995 of learned SDM Sikar, respondent No. 1 Jagan Singh preferred revision petition before Additional Sessions Judge No. 1, Sikar. The said revisional court vide its order dated 5.2.1999 allowed the revision quashing and setting aside the order dated 17.11.1995 of the SDM Sikar consequent upon which, the complaint filed before the said authority for attachment of the property in question under Section 146(2) Criminal Procedure Code by SHO P.S. Kotwali, Sikar stood dismissed with a direction to restore the possession of the land in dispute to Jagan Singh forthwith. 10. Hence, against the aforesaid order of the Additional Sessions Judge No. 1, Sikar, the State has come up before this Court by way of instant revision petition. 11. During the course of hearing, it has been contended by Shri K.S.Rathore, Additional Advocate General for the State-petitioner that no appeal or revision was preferred to this Court or to any other appropriate authority against the order dated 22.1.1990 of Board of Revenue, Ajmer in Reference No. 5/89/LR/Sikar State vs. Manna and Ors. 11. During the course of hearing, it has been contended by Shri K.S.Rathore, Additional Advocate General for the State-petitioner that no appeal or revision was preferred to this Court or to any other appropriate authority against the order dated 22.1.1990 of Board of Revenue, Ajmer in Reference No. 5/89/LR/Sikar State vs. Manna and Ors. Wherein, the Board of Revenue has observed specifically that Tehsildar Sikar with the connivance of Patwari concerned had opened Mutation No. 48 in favour of the Khatedars- respondents ex parte without giving them any notice and since the right of opening Mutation is vested only with Assistant Collector as per the provisions of Section 19 of the Rajasthan Tenancy Act, 1955 and not with the Tehsildar who had unlawfully opened the Mutation in favour of the Khatedar- respondents by exercising jurisdiction not vested in him under the Act hence, the same could not be held to be tenable. Thereafter, another Reference was made to the Board of Revenue by the Collector Sikar which too was accepted by the Board of Revenue vide order dated 6.3.1992 against which also, no revision or appeal has been filed. Hence, the aforesaid orders passed by the Board of Revenue accepting the Reference of the Collector Sikar have attained finality. Consequently, the said mutation made in favour of respondent No. 1 were quashed. Shri Rathore, learned counsel for the State further contended that in view of the afore stated position, respondent No. 1 Jagan Singh or any other person claiming any right, title or interest over the land in dispute have no legal right to retain the possession of the land in question nor they are entitled to claim any relief after the above orders passed by the appropriate forums having attained their finality. 12. Shri Rathore further stated that the land in question has already stood declared as the Government land by the order of the Revenue Appellate Authority dated 8.4.1993 and the land recorded as Sawaichak by Mutation No. 208/3.9.1994 and the orders of dispossession of respondent No. 1- Jagan Singh have already been passed on 21.8.1995 and 8.11.1995. Consequent upon the order dated 8.11.1995 passed by Tehsildar Sikar, Patwari concerned had taken the possession of the land in question on 26.12.1995. Consequent upon the order dated 8.11.1995 passed by Tehsildar Sikar, Patwari concerned had taken the possession of the land in question on 26.12.1995. Being aggrieved against the order of dispossession dated 8.11.1995, Jagan Singh-respondent No. 1 preferred an appeal before the Collector Sikar why dismissed the same vide order dated 22.1.1996. Thereafter, vide order dated 3.10.1996 the Collector Sikar on the letter of Tehsildar Sikar allotted the land in question to the State Government for construction of residential premises for the officials and officers of Collectorate as well as Police Department. 13. Notwithstanding above stated position, being yet not satisfied, Jagan Singh preferred an appeal against the order dated 22.1.1996 passed by Collector, Sikar to the Revenue Appellate Authority Ajmer. The said Appellate Authority vide its order dated 26.5.1997 dismissed the appeal by recording a specific finding to the effect: "in the revenue record, the name of Chotey Lal Meena was never recorded as Khatedar and consequent upon declaring the land in dispute void by the Board of Revenue, the land in dispute recorded as "Sawaichak" hence. under Section 175 of the Act of 1955, there was no necessity to dispossess Chottey Lal Meena from the land in question and the order dated 8.11.1995 passed by Tehsildar Sikar as well as the order dated 22.1.1996 passed by Collector Sikar are the well reasoned orders and do not call for any interference hence, dismissed the appeal." Thereafter, consequent upon the order dated 3.10.1996 of Collector Sikar, Tehsildar Sikar handed over the possession of the land in question to the Superintendent of Police Sikar on 27.5.1997 for construction of the residential quarters. 14. During the course of hearing, Shri Rathore has further contended that with regard to his claim regarding the title over the land in question, Jagan Singh has not furnished any satisfactory evidence on the record and the orders passed by Tehsildar Sikar dated 21.8.1995 as well as the order passed by Collector Sikar dated 8.11.1995 are still in force declaring the respondent No. 1-Jagan Singh as trespasser and since the Mutation over the land in question are recorded in favour of the State, respondent No. 1 has no legal right vested in him to retain the possession of the land in dispute. 15. 15. Hence, I am in agreement with the contentions of Shri Rathore that since the land in dispute has already been vested in State by the orders of appropriate authorities in circumstances as above, the respondent No. 1 is consequently a trespasser and is not entitled to protect his possession as against the true and lawful owner viz., the State in which the land already stood vested. 16. I am fortified in my aforesaid observation from the findings recorded by the Board of Revenue as well as the Revenue Appellate Authority, who vide order dated 22.1.1990 has observed that since the Tehsildar had in excess of powers not vested in him made the mutation of the land in question in favour of Chhotey Lal Meena (original khatedar) hence, it could not be held sustainable under the provisions of Section 19 of the Act and hence, the mutation made earlier in favour of Chhotey Lal Meena was rightly set-aside. Likewise, the Board of Revenue, Ajmer in its order dated 6.3.1992 has observed that the provisions of Section 19 of the Act do not authorise Tehsildar with the powers to confer any Khatedari rights and nor the Tehsildar is empowered to make Mutation in favour of a person in such a manner as has been done in the instant case while opening Mutation No. 92 dated 1.8.1960 in favour of Chhotey Lal Meena whereas the powers to confer the Khatedari rights vests with the Assistant Collector under the provisions of Section 19 of the Act. 17. Apart from above, Board of Revenue has further observed that the eligibility for conferment of Khatedari rights is based upon the relevant entries in Jamabandi (record) from Samwat 2012 while, from the entries in Jamabandi of Samvat 2011-2014, the name of Chhotey Lal Meena (the then original Khatedar) does not appear whereas, his name for the first time has been shown in Jamabandi of Samvat 2014-2017 hence, being not the original Khatedar, Chhotey Lal Meena had no right to sell, alienate or transfer the land to Jagan Singh, hence the question of vesting of Khatedari rights over the land in question in favour of Jagan Singh does not arise. Consequently, the Board of Revenue accepting the reference made by the Collector Sikar under Section 82 of the Land Revenue Act, 1956 set-aside the Mutation No. 92 dated 1.8.1960. Consequently, the Board of Revenue accepting the reference made by the Collector Sikar under Section 82 of the Land Revenue Act, 1956 set-aside the Mutation No. 92 dated 1.8.1960. Thereafter, mutation has been recorded in favour of the State of Rajasthan which has attained finality and hence not open to challenge. 18. In circumstances as referred to above, respondent No. 1 Jagan Singh is not entitled to protect his possession as against the true and lawful owner viz. State in which the land already stood vested as per the orders of Board of Revenue dated 22.1.1990 and 6.3.1992 as well as the order of Revenue Appellate Authority dated 8.4.1993 by which the land in question was recorded as Sawaichak. Apart from the above, Jagan Singh was dispossessed from the land in dispute on two occasions by the orders of Tehsildar Sikar on 21.8.1995 and 8.11.1995, respectively. In SBCWP No. 4955/93 preferred by Jagan Singh, this Court while dismissing the first stay application vide order dated 13.5.1996 had also taken note of the fact that since Jagan Singh had already been dispossessed from the land in dispute and the land had already been vested with the State, the stay application is dismissed. Being yet not satisfied, Jagan Singh preferred a second stay application which too was dismissed by this Court vide order dated 6.4.1999. 19. In my view, the learned Revisional Court viz. the Additional Sessions Judge No. 1, Sikar has without taking note of the above stated position, passed the impugned-order dated 5.2.1999 by directing restoration of possession of the land in question in favour of respondent No. 1 which does not deserve to be sustained. 20. The learned Revisional Court has failed to take notice of the relevant background in the context viz., the order of attachment dated 17.11.1995 which was passed by the SDM Sikar by directing appointment of Receiver pending adjudication by the competent court. I am of the view that legality of the order passed under Section 146(2) Criminal Procedure Code is subject to the proper determination as regards the factum of possession over the land in question which exercise should have been carried out by the learned Magistrate at first instance particularly when the dispute was likely to endanger breach for adjudication as per section 145 Criminal Procedure Code on the basis of the complaint filed by SHO P.S. Kotwali, Sikar. I am further of the view that it is obligatory upon the learned SDM Sikar as per the requirement of Section 145(4) Cr.p.C. that without reference to the merits or the claims of any of the parties with regard to right of possession concerning the subject matter of dispute, to peruse the relevant statements placed before him, hear the parties, receive all such evidence as may be produced before him and further including evidence, if any, as he thinks necessary, and, if possible, decide as to whether any and which of the parties was at the date of the order made by him under sub-section (1) of section 145 Criminal Procedure Code in possession of the subject of dispute and if the learned Magistrate finds that any party has been forciblykand wrongfully dispossessed within two months next before the date on which report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order, he may treat the party so dispossessed as if that party had been in possession on the date of his order. The obligation is further cast upon the learned Magistrate as per the requirements of Section 145(6) Criminal Procedure Code that after determination of the claims as regards entitlement of possession of the respective parties, to issue an appropriate direction declaring such party is entitled to retain the possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction, and when he proceeds in accordance with law under the proviso to sub-section (4) of section 145 Criminal Procedure Code, may direct restoration of the possession to the party forcibly and wrongfully dispossessed. 21. 21. It is significant to mention that since the learned SDM Sikar had not made any proper enquiry regarding factum of possession of the land in question before directing attachment proceedings since the land in question having been already stood vested with the State and the possession of the land was taken over by the State way back on 21.8.1995, 8.11.1995 as well as 27.5.1997 and though, having taken note of the fact that vide order dated 8.4.1993 the Revenue Appellate Authority Sikar had declared the land forming the part of Khasra No. 1134 and 1137 stood vested with the State as per the revenue records of which, respondent No. 1 was in unlawful possession, yet the learned Additional Sessions Judge No. 1, Sikar allowed the revision preferred by Jagan Singh (respondent No. 1) by reversing the order dated 17.11.1995 passed by SDM Sikar who had after directing the attachment of the land in question as per Section 146(2) Criminal Procedure Code appointed the SHO P.S.Kotwali, Sikar to act as Receiver in the matter and hence, the revisional court has apparently committed a gross illegality in allowing the revision of respondent No. 1 contrary to law and facts on the record. 22. On prima-facie view of the matter, the impugned-order dated 5.2.1999 of Additional Sessions Judge No. 1, Sikar allowing the revision of respondent No. 1 is not sustainable and deserves to be quashed and set-aside for the reasons that since the learned SDM Sikar while passing the order dated 17.11.1995 had specifically mentioned that it was not clear from the record as to who is the actual owner of the land and since it has also been observed that Tehsildar had already passed an order directing dispossession of the trespasser who was in unlawful possession over the land in question, the learned revisional court failed to take note of this fact that possession of the land in dispute had already been taken over by the State as on 21.8.1995 prior to the appointment of SHO P.S.Kotwali, Sikar to act as Receiver, therefore, the order passed by learned SDM Sikar which was subject matter of challenge before the said Revisional Court had already become non-est in the eyes of law. 23. 23. I am fortified in my observations from the judgments of the Apex Court as well as the judgment of this Court in the matters of Ram Sumer Puri Mahant vs. State of UP and Ors. : AIR 1985 SC 472 , R. Chandevarappa and Ors. vs. State of Karnataka and Ors. : (1995) 6 SCC 309 and Ram Chandra vs. Om Prakash : 1978 RLW 442. 24. In the matter of R. Chandevarappa and Ors. vs. State of Karnataka and Ors. (supra) the question which had arisen for consideration of the Apex Court in appeal preferred from the judgment & order of Karnataya High Court was as to whether the person who did not have the right to plead adverse possession as against the person from whom he had derived the title, was in violation of the prohibitory clause and Rule 43(5) of the Revenue Code read with Section 11 of the Contract Act, since he was not a member of Scheduled Castes or Scheduled Tribes had any right to transfer and alienate a land to a person who was not a member of SC/ST in violation of prohibitory order which was in force as regards Scheduled Castes and Scheduled Tribes Prohibition of Transfer of Certain Lands Act, 1978 (2 of 1979) and it was consequently held by the Apex Court that it was not open to the appellant to plead adverse possession without first disclaiming his derivative title by virtue of which he acquired the possession. It was further observed by the Apex Court, as under: "Scheduled Castes and Scheduled Tribes are the weaker sections of the society who have been deprived of their economic status by obnoxious practice of untouchability and the tribes living in the forest area far away from the civilised social life. To augment their economic status and to bring them on a par into the mainstream of the society, the State with a view to render economic justice envisaged in the Preamble and Articles 38 and 46 of the Constitution distributed the material resources, namely, the land for self-cultivation. It is an economic empowerment of the poor. Many a member of the deprived classes live upon agriculture either by cultivation on leasehold basis or as agricultural labour. It is an economic empowerment of the poor. Many a member of the deprived classes live upon agriculture either by cultivation on leasehold basis or as agricultural labour. Under these circumstances, the State having implemented the policy of economic empowerment to do economic justice assigned lands to them to see that they remain in possession and enjoy the property from generation to generation." 25. In the matter of Ram Sumer Puri Mahant vs. State of UP and Ors., (supra) , the Apex Court observed, as under: "When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding under section 145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation." 26. In the matter of Ram Chandra vs. Om Prakash (supra) , the similar question had arisen for consideration of the learned Division Bench of this Court as to whether the sale of agricultural holding made by a member of the Scheduled Castes in contravention of the provisions of Section 42 of the Rajasthan Tenancy Act, 1955, is void or voidable ? It was held that no such sale except with the general or special permission of the State Government, no Khatedar tenant has any right to transfer the land by sale or gift his interest in the whole or a part of his holding to any person who as on the date of such transfer is already in possession of the land together with the land so transferred to any person who is member of SC or ST in Contravention of Section 42 of the Act, was permissible ? 27. I find the ratio of the aforesaid decisions fully attracted to the instant case. 28. I have been informed by Mr. 27. I find the ratio of the aforesaid decisions fully attracted to the instant case. 28. I have been informed by Mr. K.S. Rathore, learned Additional Advocate General for the State that after taking over the possession of the land by the State, the same has already been entrusted to the Rajasthan Housing Board, Jaipur to carry out construction of residential quarters for the officials and officers of the Collectorate as well as Police Department at the cost of Rs. 99.84 lacs and the construction had already commenced on 28.10.1998 and the stipulated date for completion of the said project is 27.1.2000. This fact is also borne out from the relevant official record which has been shown for the perusal of this Court during the course of hearing. 29. As result of above discussion, the revision petition of the State is allowed. The impugned-order dated 5.2.1999 passed by the learned Additional Sessions Judge No. 1, Sikar in Criminal Revision No. 2/96 as well as the order dated 17.11.1995 passed by learned SDM Sikar in Case No. 27/95 are quashed and set-aside.Revision Allowed. *******