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2006 DIGILAW 2413 (RAJ)

Ramnathi Bai v. State of Raj.

2006-08-03

ASHOK PARIHAR

body2006
Honble PARIHAR, J.—The land in dispute was sold by deceased Mangilal, now represented by his legal heirs in the present writ petition as petitioners, to respondent No.5 vide registered sale-deed dated 26.6.1974. Subsequently, the above Mangilal filed a suit under Section 42(b) and Section 183 of the Rajasthan Tenancy act, 1955 (hereinafter to be referred to as ‘the Act’) before the Assistant Collector, Kota, on the ground that the sale made on 26.6.1974 was void ab initio in view of the provisions of Section 42(b), as such, the plaintiff was entitled for taking possession of the land in dispute back. The suit was decreed by the trial Court vide order dated 5.1.1994, thereby ordering ejectment of the defendant respondent. Challenging the order dated 5.1.1994, passed by the trial Court, an appeal was preferred by the defendant respondent before the Revenue Appellate Authority, Kota. It appears that during the pendency of the suit, the Tehsildar concerned had also initiated proceedings under Section 175 of the Act for ejectment of both the parties from the land in dispute in view of Section 42(b) of the Act. The Revenue Appellate Authority, Kota, while partly allowing the appeal vide order dated 11.4.1994, directed the trial Court to first decide the proceedings initiated under Section 175 of the Act. The order and the decree passed by the trial Court was set aside. Aggrieved by the order dated 11.4.1994, passed by the Revenue Appellate Authority, further appeal was preferred by deceased Mangilal before the Board of Revenue, however, the same was dismissed by the Board vide order dated 24.10.1994. Hence, the present writ petition challenging order of the Revenue Appellate Authority as also the Board of Revenue. 2. Mr. K.K. Mehrishi, learned counsel appearing on behalf of the petitioners, has submitted that since the sale made on 26.6.1974 was void ab initio in view of the provisions of Section 42(b) of the act, the petitioners have a legal right to claim the land in dispute back and the suit under Section 183 of the Act was rightly decreed by the trial Court. He further submitted that proceedings for ejectment under Section 175 of the Act could be initiated only in case of illegal transfer and sub-letting, however, in the present case, even if there have been any transfer the same was void ab initio and nullity in the eyes of law, as such, the land in question would automatically revert back to the original tenant. 3. After having considered submissions of learned counsel for the parties, I have carefully gone through the material on record as also the relevant provisions of the Act. 4. Admittedly, the petitioners belonged to Scheduled Caste, whereas the defendant respondents are from general caste. There is also no dispute that the land in dispute was sold by deceased Mangilal to defendant respondents by a registered sale deed executed on 26.6.1974. Section 42 specifically provides that the sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void if such sale, gift or bequest is by a member of Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe. Earlier, by the Second Amendment (Act No.28 of 1956), which came into force on 22.9.1956, the prohibition was that no Khatedar tenant being a member of Scheduled Caste or a Scheduled Tribe shall so transfer his interest in the whole or a part of holding to any person who is not a member of a Scheduled Caste or a Scheduled Tribe, however, subsequently, by Act No.12 of 1964, which came into force on 1.5.1964, such transaction has been held to be void if it is made by a member of Scheduled Caste in favour of a person who is not a member of Scheduled Caste or by a member of Scheduled Tribe in favour of a person who is not a member of Scheduled Tribe. Section 175 of the Act provides for ejectment for illegal transfer or sub-letting. The relevant portion of the above section is reproduced hereunder: "175. Section 175 of the Act provides for ejectment for illegal transfer or sub-letting. The relevant portion of the above section is reproduced hereunder: "175. Ejectment for illegal transfer or sub-letting [(1)] If a tenant transfers or sub-lets or executes an instrument purporting to transfer or sub-let, the whole or any part of his holding otherwise than in accordance with the provisions of this Act and the transferee or sub-lessee or the purported transferee or sub-lessee has entered upon or is in possession of such holding or such part in pursuance of such transfer or sub-lease both the tenant and any person who may have thus obtained or may thus be in possession of the holding or any part of holding, shall on application of the landholder, be liable to ejectment from the area so transferred or sub-let or purported to be transferred or sub-let." 5. Section 183 of the Act is in regard to ejectment of certain trespassers. The relevant portion is reproduced hereasunder:- "183. Ejectment of certain trespasser.—(1) Notwithstanding anything to the contrary in any provision of this Act, a trespasser who has taken or retained possession of any land without lawful authority shall be liable to ejectment, subject to the provisions contained in sub-section (2), [on the suit of the person or persons entitled to eject him] and shall be further liable to pay as penalty for each agricultural year, during the whole or any part whereof he has been in such possession, a sum which may extend to fifteen times for annual rent." 6. Trespasser has also been defined under the Act as under :- "(44) "Trespasser" shall mean a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him. 7. Submission of learned counsel for the petitioners that since the sale made on 26.6.1974 by the petitioners was void ab initio, the defendant respondents could only be treated as trespassers, as such, the petitioners could file a suit under Section 183 of the Act for ejectment has only to be considered for rejection. 8. Admittedly, the petitioners had entered into a registered sale deed with the defendant respondents. The sale itself been void ab initio, as such, as per provisions of Section 175 of the Act, the land shall revert back to the land holder i.e. the State. 8. Admittedly, the petitioners had entered into a registered sale deed with the defendant respondents. The sale itself been void ab initio, as such, as per provisions of Section 175 of the Act, the land shall revert back to the land holder i.e. the State. In the present case, an application under Section 175 of the Act has already been filed by the Tehsildar concerned before the Assistant Collector, as such, no decree for ejectment could have been passed by the trial Court in a suit under Section 183 of the Act filed by the original land holder because he is also equally responsible for violation of provisions of Section 42(b) of the act and is liable to be ejected from the land in question even if a decree is granted in his favour under Section 183 of the Act. Trespasser as defined under the Act referred under Section 183 of the Act has to be read together. There has to be a clear distinction between a trespasser and holder of land through an illegal transaction. Since, after due consideration, proper discretion has been used by the Revenue Appellate authority as also the Board of Revenue, in the facts and circumstances, no further interference is called for by this Court under writ jurisdiction. 9. Accordingly, the writ petition is dismissed as having no merit. The trial Court, however, is directed to expedite the proceedings as remanded by the Revenue Appellate Authority.