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2000 DIGILAW 5 (RAJ)

Nandlal v. Board of Revenue

2000-01-04

ARUN MADAN

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Honble MADAN, J.–Though the case has come up on an application filed on 9.8.99 for vacation interim stay order under Article 226(3) of the Constitution by applicants Heekli s/o Manglu and six others, who have also prayed for impleading them as necessary parties to this writ petition, but the arguments advanced at the bar since are same, at the joint request of the parties, this writ petition itself is also being disposed of. (2). By this writ petition the petitioner has challenged the impugned judgment dated 26.11.97 (Ann. 3) of the Board of Revenue for Rajasthan, Ajmer (for short `the Board), wherein Heekli s/o Manglu and six others were also parties to the proceedings before the Board, therefore, they are also necessary parties. Hence applicants Heekli and six others are allowed to be impleaded as respondent Nos. 4 to 10. (3). The facts, briefly stated, relevant for deciding this writ petition are that on 10.6.76 the petitioners filed suit for declaration and injunction u/Ss. 88, 89 & 188 of the Rajasthan Tenancy Act, 1955 (for short `the Act) alleging his ejectment wrongfully before the Assistant Collector, Laxmangarh. (4). In the suit filed by the petitioners and one Bodan s/o Panchya, the plaintiffs claimed that they are khatedar tenants of Khasra No. 53 (measuring 40 bighas 15 biswa), No. 48 to 54 and No. 149 to 151 situated in village Rasulpur, Tehsil Laxmangarh but the Settlement Department had wrongly entered these khasra as pasture land (Gochar), and therefore prayed that they be declared as Khatedar tenants of Khasra No. 53. In reply to the plaint of the petitioners, the respondent No. 4 to 10 denied the claim of the plaintiff as of Khatedar tenants and also denied their case of having been in possession over Khasra No. 53. They (respondent No. 4 to 10) claimed their possession over 28 bighas of land in dispute of Khasra No. 53 having been taken on 26.9.75 through Ghatna Bahi No. 281 as a result of allotment dated 18.9.75 made by Land Allotment Committee Laxmangarh and patta issued by it. The petitioners (plaintiffs) and the respondent No. 4 to 10 adduced their respective evidence and after hearing them the Assistant Collector Laxmangarh (Alwar) by his judgment dated 30.5.88 (Ann. 1) dismissed the petitioners suit. Petitioners then preferred appeal No. 108/88 before Revenue Appellate Authority, Alwar on 30.6.88. The petitioners (plaintiffs) and the respondent No. 4 to 10 adduced their respective evidence and after hearing them the Assistant Collector Laxmangarh (Alwar) by his judgment dated 30.5.88 (Ann. 1) dismissed the petitioners suit. Petitioners then preferred appeal No. 108/88 before Revenue Appellate Authority, Alwar on 30.6.88. This appeal was allowed holding the petitioners as Khatedar tenants vide order dated 7.8.92 duly modified on 17.9.92 (Ann. 2), against which the respondent Nos. 4 to 10 filed appeal No. 360/92 besides two other appeals having been filed (1) No. 374/92 by State Government and another No. 8/93 by Bishnya & Others, before the Board. The Board by its judgment dated 29.11.97 (Ann. 3) allowed the appeal No. 360/92 of the respondent Nos. 4 to 10 and No. 374/92 of the respondent State Government and upheld the judgment dated 30.5.88 (Ann. 1) and quashed the judgment dated 7.8.92 (Ann. 2) and accordingly dismissed the petitioners suit. Hence this writ petition. (5). Reply to the writ petition has been filed by respondent No. 2 and 3. (6). Shri Pramod Kumar Sharma learned counsel for the petitioners contended that the Board of Revenue did not consider the facts that they are recorded khatedar tenants of the land in dispute since before the commencement of the Tenancy Act as proved by revenue record of Samwat Year 2009 to 2014 (1952 to 1957) and since then their forefathers and they have been in possession over the land in dispute. They produced Khasra Girdawari (revenue record) of Samwat Year 2009 to 2014. But in Samvat year 2014 the Settlement Department had wrongly opened the mutation by declaring their land as pasture land whereas the petitioners fulfilled all conditions of Section 13, 15 and 19 of the Tenancy Act viz. that they were tenants on the date (15.10.55 Samvat Year 2011) of the commencement of the Tenancy Act and that they have been in possession since before 15.10.55. Their case is that the impugned judgment of the Board is liable to be quashed on the ground that the petitioners and their forefathers have been in possessing of the disputed land for long spell of time and on the strength of possessory khatedari rights they were entitled to continue as such notwithstanding the same having been declared or recorded as pasture land in settlement proceedings by the revenue department. (7). (7). Shri Sharma also contended that the State Government did not have right/power whatsoever to allot the land to the respondent No. 4 to 10 (Heekli and others) and so the settlement department should not have reversed the entries in the revenue records contrary to the evidence led by the petitioners to show their long standing and continuity in their possession on the disputed land but the Assistant Collector and Board failed to appreciate this significant aspect of the matter inasmuch as there has been cogent findings of the Revenue Appellate Authority that once the land in dispute has been shown as Siwai Chak and then as pasture land, how could pasture land be allotted to the respondent No. 4 to 10. (8). On the contrary, Shri Anant Kasliwal learned standing counsel for the Revenue Department (respondent No. 2 & 3) urged that the petitioners were never treated as Khatedar tenants by the Revenue and Settlement Department inasmuch as they did not produce any evidence either in respect of their alleged khatedari rights or as to payment of rent and mere factum of possession by itself would not confer any Khatedari rights in the absence of cogent evidence as to mutation in revenue records because it is well settled in a catena of decisions that mere entry in patwar papers as to showing any person as khatedar tenant is not sufficient to create tenancy right in his favour. Shri Kasliwal then contended that mere fact that the land holder realised tenancy revenue from a person after his ejectment does not itself prove that person was holding or continuing in possession of the land as tenant. (9). The respondent No. 4 to 10 only urged that the petitioners were never treated as tenants as they never paid the rent to the revenue and Khasra Girdawari is not the record of right. (10). I have heard the learned counsel for the parties and considered their rival contentions and perused the impugned judgment and other documents annexed to the writ petition and reply thereto. (11). Before adverting to merits of the case at hand, I must state a brief resume as to the law on the subject. (10). I have heard the learned counsel for the parties and considered their rival contentions and perused the impugned judgment and other documents annexed to the writ petition and reply thereto. (11). Before adverting to merits of the case at hand, I must state a brief resume as to the law on the subject. Legal position emerging from the provisions of Sections 13, 15 and 19 of the Tenancy Act is very precise that the khatedari rights can only be acquired if the tenant is admitted by the person having right to let, and a person can be taken to have been admitted as tenant only when he is let out the land by its holder for agricultural or subservient thereto and when he pays rent fixed at the rates determined in accordance with law. Section 15 of the Tenancy Act read with Section 16 & 180(1) (d) confers khatedari rights on every person who is in possession of the land as tenant otherwise than sub-tenant or khudkasht tenant. Mere possession in Samwat 2012 (when Tenancy Act came into force) is not sufficient to attract Section 15 and the possession must be as a tenant. (12). As held in Randeen vs. Nura (1), Amarjeet Singh vs. State (2) and Param Sukh vs. State (3), a mere entry in the Patwar papers describing a person as khatedar tenant and then issue of a receipt by landholder in his name is not sufficient to create tenancy because tenancy must be based on formal admission inasmuch as the mere fact that the land holder realised or accepted rent from a person even after his ejectment does not prove him holding as tenant. Thus viewed, admission to tenancy is necessary for acquisition of khatedari rights and cannot be declared merely on the basis of long possession. The plaintiff has to prove admission to tenancy entries in mutation or revenue records would nether confer khatedari rights nor in the absence of such entries, the tide, Interest or right acquired legally by a person are extinguished. Admission to tenancy cannot be proved even on the basis of a patta of doubtful value and in order to seek declaration of khatedar rights either under Section 15 or Sec. 19, one has to prove tenancy. Admission to tenancy cannot be proved even on the basis of a patta of doubtful value and in order to seek declaration of khatedar rights either under Section 15 or Sec. 19, one has to prove tenancy. That apart mere acceptance of rent does not amount to settlement of lands nor would the filing of arrears of rent constitute such a settlement. In short I must hold that mere description of a person as khatedar tenant would not entitle him to such rights if he does not acquire these otherwise and the person not paying rent is not a tenant and he cannot invoke Section 15. (13). In the case at hand, the petitioners claimed themselves to be khatedar tenants on the basis of their alleged possession according to the Khasra Girdawari of Samvat Year 2009 to 2014. In my considered view, Khasra Girdawari is not a record of rights as rightly held by the Board of Revenue in its judgment (Ann. 3) and this does not confer any title or khatedari rights to him, and no such rights accrue to the petitioner on the basis of long or continuous possession or Khasra Girdawari. Even by mere possession, khatedari rights cannot accrue to the petitioners as they have/had to establish which they have failed to do so as rightly held by the Board, that they were admitted as tenants after the commencement of the Tenancy Act or they had acquired Khatedari rights by operation of law. The petitioners have never proved to have paid rent by producing rent receipts, and jamabandi etc. I do not find any justification for taking contrary view arrived at by the Assistant Collector and the Board. Both the trial court and the Board on the basis of the evidence on record have rightly held that the petitioners had never been recorded and acquired as Khatedari rights of the land in dispute and on the other hand, jamabandi of Samvat Year 2014 (Ann.R. 4) proved the land in dispute having been recorded/entered as Siwai Chak in Samvat Year 2014 itself and therefore, out of 40 bighas of land in dispute, 28 bighas of land of Khasra No. 53 were allotted to respondent No. 4 to 10 who were landless persons on 18.9.75 by giving possession thereof to them on 26.9.75 and balance land of Khasra No. 53 remained as Siwai Chak. This position has not been challenged for the period of over 15 years, from Samwat year 2014 and after 15 years for the first time in the year 1976 when Siwai Chak land as aforesaid was allotted to the respondent No. 4 to 10 after declaring and reversing the land as pasture land, the petitioners filed suit u/Ss. 88, 89 and 188 of the Tenancy Act which was rightly dismissed by the trial court. The petitioners failed to prove that they have been in possession of Khatedari rights over the land in dispute of Khasra No. 53 as tenant and they have been admitted to be tenant by the land holders (State Government in their case) since Samvat Year 2012. They further, failed to prove that they have paid rent as tenant to the State Government. Therefore, the petitioners do not fulfill pre-requisite conditions so as to acquire khatedari rights and to be admitted as tenants of the land of khasra No. 53 in dispute as contemplated in Section 13, 15 & 19 of the Tenancy Act. Hence this writ petition must fail. (14). As a result of the above discussion, this writ petition is dismissed with no order as to costs. Consequently, the impugned judgments dated 30.5.88 (Ann. 1) of the Assistant Collector, Laxmangarh and that of Board of Revenue dated 26.11.97 (Ann. 3) are upheld.