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2003 DIGILAW 422 (RAJ)

Chhoga v. Rangu

2003-03-21

S.C.SINGHAL, SUDHIR VERMA

body2003
VERMA, Member – The appellant-defendants have filed this appeal under Section 224 of the Rajasthan Tenancy Act, 1955, (in short ``the Act), against the judgment and decree dated 24.4.97 passed by learned Settlement Officer-cum-Revenue Appellate Authority, Sirohi camp Jalore, by which the appeal filed by the respondent-plaintiffs has been accepted. (2). Briefly stated, the facts of the case are that Shri Rajiya S/o Nopla who was the husband of respondent No.1 Mst. Rangu, and father of respondents No.2 to 7 filed a suit against the appellant-defendants in the court of Asstt. Collector, Jalore under Sections 88 and 188 of the Act stating that khasra No. 662 area 7 bighas 14 biswas situated at village Noon Tehsil Jalore was in the khatedari and cultivatory possession of his father Nopla. Since his father was financially week he cultivated the disputed land jointly with Shri Sava who was the father of appellants No.2 & 3 for one year. Shri Sava got khatedari entered in the revenue record with the connivance of patwari whereas the rent is being paid by the plaintiffs continuously. Shri Sava has died and appellants No.2 and 3 who are the daughters of Shri Sava and appellant Chhoga intend to grab the disputed land by force, therefore, the plaintiffs be declared as khatedar tenants of the disputed land and the appellant-defendants be restrained by permanent injunction. (3). The appellant/defendants contested the suit and filed their reply and alleged that the disputed land had never been in possession of the respondent-plaintiffs. It was stated in reply that the disputed land belonged to the deceased Sava and after his death the appellant-defendants are in cultivatory possession of the disputed land. The disputed land has wrongly been entered by Settlement Department in the names of the plaintiffs father. It has also been stated in reply that the mutation No. 149 had also been entered in the name of Sava. The appellant-defendants are in cultivatory possession of the disputed land since thirty years and paying the land revenue also. (4). On the basis of the pleadings of the parties, the trial court after framing necessary issues and recording evidence, vide its judgment and decree dated 29.9.79 dismissed the suit. Against which, the respondent-plaintiffs filed an appeal before the learned lower court which has been decided by the impugned judgment as aforesaid. Now this second appeal has been filed. (5). (4). On the basis of the pleadings of the parties, the trial court after framing necessary issues and recording evidence, vide its judgment and decree dated 29.9.79 dismissed the suit. Against which, the respondent-plaintiffs filed an appeal before the learned lower court which has been decided by the impugned judgment as aforesaid. Now this second appeal has been filed. (5). We have heard the learned counsel of both the parties and perused the record and also have gone through the impugned judgment. (6). The learned counsel of the appellants has contended that the impugned judgment has been passed in violation of Order 41 Rule 31 CPC, as the learned lower court has not passed its judgment issuewise. He has argued that since Svt. year 2012 the disputed land is continuously in possession of the appellants, therefore, by operation of law they have acquired khatedari rights on the disputed land and 23.5.61, the Tehsildar attested the mutation No. 149 in their names under Section 19 of the Act, but the learned lower court has erred in holding that Tehsildar was not competent to attest mutation under Section 19 of the Act in favour of Sava, the father of the appellants. He has also argued that the appellants have acquired khatedari rights by adverse possession also as they are in continuous possession of the disputed land since Svt. 2012. He has cited before us Madhukar vs. Sangram (1), Gyan Prakash vs. State of Rajasthan and Ors. (2) and Ramgopal vs. Smt. Ramnathi Bai and Ors. (3). (7). On the other hand, the learned counsel for the respondents has argued that the Tehsildar has got no jurisdiction to declare the tenants as khatedars under Section 19 of the Act and the appellant has to prove that at the commencement of this Act they were entered in the Annual Registers than current as tentant on khudkasht or sub-tentants of land or was not so entered but was a tenant of khudkasht or sub tenant of the land. Since the appellants could not prove it hence, they are not entitled to be declared as khatedars of the disputed land. It has also been argued that the learned lower court has discussed both documentary and oral evidence led by the parties and thereafter recorded its finding. Since the appellants could not prove it hence, they are not entitled to be declared as khatedars of the disputed land. It has also been argued that the learned lower court has discussed both documentary and oral evidence led by the parties and thereafter recorded its finding. Therefore, it could not be said that the finding of the learned lower court does not cover all the issues which have been framed by the trial court. It has also been argued that the appellants did not produce Annual Registers, i.e., record of rights of jamabandi, therefore, they are not entitled to be declared as khatedar tentants under Section 19 of the Act. It has also been argued that theory of adverse possession does not help the appellants as the disputed land belonged to the respondents who are members of Scheduled Caste, therefore, khatedari rights cannot be acquired by the appellants by way of adverse possession also. He has also argued that Shri Sava, the father of the appellants, jointly cultivated the disputed land for one year with the permission of Nopla and thereafter the appellants had never been in possession of the disputed land. He has cited Suraj Mal vs. Hazari (4), Bheru vs. Kalu (5), Khuman Mal vs. Bheru (6), Smt. Sonavati vs. Shri Ram (7), Pura Ram vs. Moola Ram (8). (8). We have considered the rival contentions of the parties and also perused the case laws cited before us. (9). After perusal of the judgment of the Revenue Appellate Authority, i.e., the first appellate court. We find that the documentary evidence produced by the party has been fully discussed and the provision of law has been looked into, therefore, it cannot be said that the judgment passed by the lower appellate court is in flagrant violation of mandatory provisions of Order 41 Rule 31 CPC. Since the lower court has dealt with the evidence led by the parties regarding all issues before recording its finding, therefore, sufficient compliance of Order 41 Rule 31 CPC has been made. We are fully in agreement with the principles of law enunciated in AIR 2001 SC 2171 (8) and 2002 RRD 306 (9) in which it has been held that as a court of first appeal it was the duty of the court to deal with all the issues and the evidence led by the parties before recording its finding. We are fully in agreement with the principles of law enunciated in AIR 2001 SC 2171 (8) and 2002 RRD 306 (9) in which it has been held that as a court of first appeal it was the duty of the court to deal with all the issues and the evidence led by the parties before recording its finding. Since in these rulings the first appellate court failed to discharge the obligation placed on it under Order 41 Rule 31 CPC, hence the appellate judgment was found cryptic that none of the relevant aspects have been noticed and the appeal was decided in a very unsatisfactory manner. In 2000 RRD 306 (11), also the Honble Court has held that the judgment of the appellate court in in flagrant violation of mandatory provisions of Order 41 Rule 31 CPC, as it was a non-speaking judgment, but in the case in land before us, situation is quite different. The learned appellate court has critically analysed the relevant documentary evidence and after discussing the evidence led by the parties finding has been recorded. (10). It is not disputed that the respondents are members of Scheduled Caste whereas the appellants are the members of non- scheduled caste. It is also not in dispute that the respondent No.1 Mst. Rangu is widow of Rajiya and respondents No.2 to 7 are the sons of Rajiya. It is also not disputed that Rajiya was the son of Nopla. (11). After perusing the record placed on the file, it comes out that in khasra girdawari Svt. 2008-11 (Exhibit P-2) Nopla has been entered as `Khudkasht which shows that the disputed land was in cultivatory possession of Nopla, i.e., the grand father of the respondents. Thereafter, in khasra girdawari Svt. year 2012-15 (Exhibit P-3) in column No.6, which pertains to tenants, the name of Nopla has been recorded and in Svt. 2014 and 2015 in column No. 32 and 40, which pertains to ^^foks"k fooj.k^^ the entries are, thus, ^^ukSiky cdkr lfo;k iq= fojek iqjksfgr lk- nsg^^ which means in Svt. 2014 the khatedari was in the name of Nopla and Sub-tenancy has been recorded in the name of Saviya, i.e., father of the appellants No.2 and 3 in column ^^foks"k fooj.k^^. In Smvat 2016 the name of Nopla has been entered as khatedar and his cultivation has been recorded, but in Svt. 2014 the khatedari was in the name of Nopla and Sub-tenancy has been recorded in the name of Saviya, i.e., father of the appellants No.2 and 3 in column ^^foks"k fooj.k^^. In Smvat 2016 the name of Nopla has been entered as khatedar and his cultivation has been recorded, but in Svt. 2017-19 cultivation of the disputed land has been recorded 41 of Svt. 2019 a note has been recorded which is as under :- ^^tfj;s ukekUrjdj.k QkeZ ua- 149 ds uksiyk oYn vknkth ds ctk; lok iq= fojek iqjksfgr dk dkfct ekuk tkosA^^ It shows that in Svt. 2019 a mutation No. 149 (Exhibit P-4) has been opened in which Sava has been recorded in place of Nopla and, thereafter the entries in the name of Sava is continuing on the basis of this mutation No. 149. The copy of mutation (Exhibit-8) is on the file which shows that mutation No. 149 has been opened by the Tehsildar Jalore in which the name of Nopla khatedar has been deleted on the ground that Sava has acquired khatedari rights under Section 19 of the Act. This mutation has been sanctioned under Section 19 of the Act. (12). After perusing all the documentary evidence, as stated, above, it is evident that since Svt. 2008-14 the name of Nopla has been entered as khatedar tenant of the disputed land and for the first time the name of Naviya (Sava) has been entered in Svt. 2014 in column ^^foks"k fooj.k^^ as sub tenant, but thereafter his name does not appear as sub tenant during Svt. 2017 and 2018, as the disputed land was cultivated during these years by Shri Ajit Singh brother of Nopla. Now question arises as to whether the appellants are entitled to be declared as khatedar tenants of the land by virtue of section 19 of the Act, as the mutation No. 149 (Exhibit 8) has been attested in their favour by the Tehsildar. In 1992 RRD 598 (12), it has been held that for the purpose of acquiring khatedari rights under Section 19 of the Act, it is essential that the names of the persons concerned should have been entered as sub-tenants in the jamabandi of Svt. 2012 and not in khasra girdawari of that year. Tehsildars and Naib Tehsildars are not empowered to confer khatedari under this section. 2012 and not in khasra girdawari of that year. Tehsildars and Naib Tehsildars are not empowered to confer khatedari under this section. But in 1987 RRD 97 (13), the Honble High Court has held that in mutation proceedings also an enquiry can be made and if automatically by operation of lave like Section 19(1)(a) of the Act khatedari rights were conferred on a sub-tenant then such authority was competent to record khatedari in favour of the sub- tenant in mutation proceedings as well. It has further been held that mutation entries in mutation proceedings as well. It has further been held that mutation entries are meant only for fiscal purpose and such entries do not determine any right if challenged by any of the party. (13). Section 19 of the Act is as under :- ``Every person, who, at the time of 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 or land other than grove land. shall as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1959, hereinafter in this Chapter referred 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 the part of the said land shall also accrue to such person. (14). Now it has to be seen as to whether at the commencement of the Rajasthan Tenancy (Amendment) Act, 1959 or at the commencement of the Act, i.e., Svt. 2012 father of the appellant Sava was entered in the Annual Registers as tenant of `Khudkasht or sub-tenant of the disputed land. As stated above, in Svt. 2012 when the Rajasthan Tenancy Act came into force Nopla, i.e., grandfather of the respondents was entered as khatedar tenant of the disputed land. For the first time in Svt. 2012 father of the appellant Sava was entered in the Annual Registers as tenant of `Khudkasht or sub-tenant of the disputed land. As stated above, in Svt. 2012 when the Rajasthan Tenancy Act came into force Nopla, i.e., grandfather of the respondents was entered as khatedar tenant of the disputed land. For the first time in Svt. 2014 sub-tenancy was recorded in the name of Saviya in column No. 32 and in Svt. year 2015 in Column No. 40, but in Svt. 2016 Nopla has been exclusively entered as khatedar tenant of the land. At the time of Rajasthan Tenancy (Amendment) Act, 1959, i.e., Svt. 2016 Sava the father of the appellant was never entered as sub-tenant in khasra girdawari. For the purpose of acquiring khatedari rights under Section 19 of the Act, it is essential that the name of the person concerned should have been entered as sub-tenant in Annual Registers, i.e., jamabandi of Svt. 2012 and not in khasra girdawari of that year. No jamabandi of Svt. 2012 has been produced by the appellant-defendants which could show that Sava was ever entered as sub-tenant in that particular year. As stated above, neither in Svt. 2012 nor in Svt. 2016 the name of Sava finds place as sub-tenant, therefore, Naib Tehsildar, Jalore was not justified in granting khatedari rights to Sava under Section 19 of the Act, vide mutation No. 149 (Exhibit 8). It is pertinent to mention that in khasra girdawari of Svt. 2014 and 2015 the name of Sava finds place as sub-tenant in remarks column and not in the columns of tenant. The Apex Court has held in Smt. Sonavati vs. Shri Ram (14), that the relying upon entry in remarks column of khasra, a person cannot claim that he has established his rights as `Adivasi under section 20-B of the U.P. Jamindari Abolition and Land Reforms Act. Therefore, the entry as sub-tenant in the name of Saviya in remarks column of khasra girdawari Svt. 2014 and 2015 cannot conclusively prove that Saviya was sub-tenant of Nopla in those particular years. The order of Tehsildar for conferring khatedari rights on Sava under Section 19 of the Act is clearly in violation of the provisions of the Act and no reliance can be placed on such mutation. (15). 2014 and 2015 cannot conclusively prove that Saviya was sub-tenant of Nopla in those particular years. The order of Tehsildar for conferring khatedari rights on Sava under Section 19 of the Act is clearly in violation of the provisions of the Act and no reliance can be placed on such mutation. (15). We do not find any force in the arguments advanced by the learned counsel of the appellants that the appellants have acquired khatedari rights by adverse possession. As stated above, on the basis of the documentary evidence adduced the possession of Saviya is recorded only in Svt. 2014 and in Svt. 2015 and thereafter, the entries of khatedari over the disputed land has been recorded on the basis of mutation No. 149 (Exhibit-8_. Therefore, it can not be presumed that the appellants are in continuous possession of the disputed land, otherwise also as stated above, the respondents are the members of scheduled caste whereas the appellants are the members of non-scheduled caste, therefore, the appellants are prohibited by law to acquire khatedari rights on the disputed land belonging to the scheduled caste by adverse possession. (16). We find no illegality or perversity in the judgment passed by the lower first appellate court. In the result, the appeal fails and is hereby dismissed. Pronounced in the open court.