Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 1529 (RAJ)

Pratap Singh v. State of Rajasthan

2002-09-03

JAGAT SINGH

body2002
Honble SINGH, J.–Petitioner Pratap Singh has challenged the order Annex. 3 dated 20.4.1999 and Annex. 4 dated 4.4.2000 on the plea that 12.3 bighas land of khasra No. 294 situated in revenue village Sanchore was in his possession from the very beginning but Nanji was cultivating the same on behalf of the petitioner and, therefore, in the settlement proceedings the entries were wrongly made in the name of Nanji. When the petitioner came to know about it filed a revenue suit No. 794/78 against Nanji and Okha in the Court of Assistant Collector, Bhinmal with the above averments Nanji submitted a consent written statement and after oral evidence of both the parties the above suit was decreed in favour of the petitioner vide Annex. 1 on 14.2.1979 and consequently on the basis of above judgment and decree mutation of the above land was also entered in the name of the petitioner. But subsequently vide Annex. 2 dated 15.12.1997 upon the report of Tehsildar Sanchore Additional Collector, Jalore made a reference with regard to the above land to the Board of Revenue with the averments that Nanji the original khatedar and the defendant in the suit No. 794/78 was a Scheduled Caste person and no decree could have been passed in favour of a person not belonging to Scheduled caste. The above reference was accepted by the Board of Revenue vide Annex. 3 dated 20.4.1999. Hence this petition. (2). During the course of arguments time and again a query was put to the learned counsel for the petitioner that why any revenue record in favour of the petitioner prior to filing of the suit could not be produced in all the Courts below. The settlement authorities have no power to change the entries. They have to reproduce the revenue entries as they were at the time of settlement. In the matter at hand no averments with regard to above fact were mentioned in the suit filed by the petitioner in the Court of Assistant Collector, Bhinmal that ever any entires in the revenue record of the land in question were in the name of the petitioner or his forefathers. (3). In the revenue suit referred above State of Rajasthan through Tehsildar was not made a party and Nanji and Okha were the defendants. In the plaint itself it has been written that Okha was minor at that time. (3). In the revenue suit referred above State of Rajasthan through Tehsildar was not made a party and Nanji and Okha were the defendants. In the plaint itself it has been written that Okha was minor at that time. Who was his natural guardian and whether he also submitted a consent written statement is neither mentioned in the judgment Annex. 1 nor the same has been subsequently pleaded either before the Assistant Collector or before the Board of Revenue. Had the Tehsildar concerned been made a defendant the matter would have been different. When admittedly Okha was a minor, his interest should have rightly been defended wither by a natural guardian or by a Court guardian appointed for that purpose. As soon Okha came to know about the impugned judgment and decree after becoming major he was entitled to challenge the same. Though Okha has not filed any suit challenging the judgment and decree Annex. 1, however, reference under Section 232 of the Rajasthan Tenancy Act, 1955 was made by the Additional Collector, Jalore vide Annex. 2 which may be belated by 15 years. When the impugned judgment Annex. 1 was passed without making State a defendant and also against a minor and also against the mandatory provisions of Section 42 of the Act the same could have been challenged belatedly because an illegal order from the very beginning cannot be sustained on the technical pleas of the limitation etc. (4). There is one more aspect of the matter. Nanji, the then recorded khatedar of the land in question, sold the same by registered sale deed Annex. R/1 dated 12.10.1977 to Okha, minor, in whose name mutations No. 526 dated 2.9.1978 Annex. R/2 were also opened. After sale of the land in question Nanji had no interest left and he may have filed the consent written statement in favour of petitioner Pratap Singh. Okha though was made a defendant, however, in the suit itself it has been written that he was a minor and his father Gaja was his natural guardian Gaja has not filed any consent written statement. Even if these was a consent written statement and a deposition on oath by Gaja against the interest of minor Okha that too were not permissible under the law unless and until it was shown that the land in the name of minor is disposed in the interest of minor. Even if these was a consent written statement and a deposition on oath by Gaja against the interest of minor Okha that too were not permissible under the law unless and until it was shown that the land in the name of minor is disposed in the interest of minor. In such a situation even on merit side no decree could have been passed in favour of petitioner Pratap Singh. (5). Learned counsel for the petitioner relied on Lal Bai & Ors. vs. Board of Revenue (1), in which a Single Bench of this Court on an identicial matter came to the conclusion that Section 42 of the Act was applicable only when there is a transfer of land by means of sale, gift or bequest and not otherwise and therefore, the Court decree in favour of the petitioner was upheld through the same was against the mandatory provisions of Section 42 of the Act. In an identical situation this Court in Nandlal vs. State of Rajasthan & Ors. (2), and Haja vs. Board of Revenue (3), came to the conclusion that in consonance of public policy of preventing transfers of land from Scheduled Caste persons to Non- Scheduled Caste persons. Section 42(b) of the Act has been framed by the legislature and if any transfer by way of sale, gift or bequest or otherwise is made to the contrary and even there was a collusive decree this Court while exercising extra ordinary jurisdiction under Article 226 will not interfere in the reference accepted by the Board of Revenue. When the decree itself was violative of Section 42 of the Act the same could have been set aside by making reference to the Board of Revenue and in such cases the period limitation is not applicable. In a similar situation the larger bench in State of Rajasthan vs. Gangaram (4), was also dealing with the reference made by the Collector for cancellation of the mutation attested in violation of Section 42(b) of the Act. It was held that the transfer of land by a member of Scheduled Caste to Non-Scheduled Caste is void and the same can be challenged at any time even after expiry of period of limitation. (6). Consequently, there is no merit in this petition. The same stands dismissed.