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2006 DIGILAW 2048 (RAJ)

Mool Chand v. State of Rajasthan

2006-06-13

K.S.RATHORE

body2006
Judgment K.S. Rathore, J.-Brief facts of the case are that Khasra No. 828 (new Khasra No. 2588) measuring 1 Bigha situated in village Med, Tehsil Virat Nagar stands in the Muafi of Mandir Shri Gopi Nathji of village Med. In executing of decree dated 09.09.1965 passed in Suit No. 347/64 by the Assistant Collector, Bairath, Mutation No. 431 of village Med was entered in favour of Petitioner No. 1 and the Tehsildar attested the same in favour of the Petitioner No. 1 vide order dated 11.01.1967. Since then the lands comprised in Khasra No. 1053/2, 1054/2 and from Khasra No. 828 to 835 in all 10 Khasra Nos. measuring 13 Bigha 3 Biswa are continuing in the Khatedari and possession of the Petitioner No. 1. The Petitioner No. 1 sold the land comprised in Khasra No. 1053/2 measuring 1 Bigha 5 Biswa and Khasra No. 1054/2 measuring 1 bigha 4 Bishwa vide registered sale deed dated 18.04.1972 for consideration of Rs. 2,000/-in favour of Petitioner No. 2 and the said lands were entered in the Khatedari of Petitioner No. 2 vide mutation No. 891 dated 20.06.1976. 2. The controversy arise when a reference was made by the Additional Collector (I), Jaipur to the Board of Revenue regarding the land belonging to the persons of Scheduled Tribes cannot be recorded in the name of the petitioners. As per provisions of Section 42 of the Rajasthan Tenancy Act, no land of SC/ST can be transferred to the person belonging to general caste. The Board of Revenue has decided the said issue after giving elaborate Judgment after discussing the authorities and decisions of the various Courts. 3. The sole plea of the petitioner is that so far application of provision of Section 42 are not applicable to the instant case as the land is recorded in the name of the petitioner by virtue of decree passed by the competent Court. Learned Counsel for the petitioner did not dispute this fact that provisions of Section 42 bars the transfer of land belong to the SC/ST in favour of non SC/ST person. 4. It is also alleged by learned Counsel for the petitioner that reference is made at a belated stage. It is not disputed that there is no limitation for making reference is prescribed. 4. It is also alleged by learned Counsel for the petitioner that reference is made at a belated stage. It is not disputed that there is no limitation for making reference is prescribed. It is also contended that in Suit No. 347/64 for declaration and correction of entries and permanent injunction, decree passed by the Assistant Collector, Bairath dated 09.09.1965 cannot be set aside in summary proceedings of reference under Section 232 of Rajasthan Tenancy Act, 1955 and Section 82 of the Rajasthan Land Revenue Act, 1956. Learned Counsel further submits that father of the petitioner was in khatedari right of the disputed land under Section 9 of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952. 5. Upon perusal of the order passed by the Board of Revenue and the grounds taken in the writ petition, it appears that the Board of Revenue has not dealt with each and every aspects and with regard to decree passed by the Assistant Collector in the year 1965 and with regard to quashing and setting aside the decree passed by the Assistant Collector, no ground and specific reason has been mentioned. 6. In view of this and in the interest of justice, I deem it proper to quash and set aside the order dated 212.1997 passed by the Board of Revenue and the matter is remitted back to the Board of Revenue for fresh adjudication. The Board of Revenue after hearing the parties shall pass the fresh order considering all aspects and legal objections which are raised here in the writ petition. 7. With the aforesaid observations, the writ petition stands disposed of .