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2006 DIGILAW 349 (RAJ)

Sharda Devi v. The State of Rajasthan

2006-02-02

K.S.RATHORE

body2006
JUDGMENT 1. - Brief facts of the case are that the petitioner filed a suit under Section 88-89 of the Rajasthan Tenancy Act, 1955 in the Court of Assistant Collector-cum Executive Magistrate, 1st, Bharatpur for declaration of his rights of tenancy stating therein that the petitioner has been In possession and cultivating the land bearing Khasra No. 874 measuring 2 bighas at Chak No. 2, Bharatpur since Samvat 2012 and his name has been entered in the Revenue Records for more than last 20 years as Shikmi Kashtkar. As such he has got the rights of tenancy under Section 19(1)AA of the Rajasthan Tenancy Act, 1955 (for short, the Act) but the Revenue officials have entered him in the revenue record merely as Gair-Khatedar and as per provisions of Section 63, of the Rajasthan Tenancy Act, he has got the khatedari rights over the land in dispute. 2. Initially the suit was filed against Ratan (non petitioner) but since the land was sold by Ratan, later on, non petitioners Mahendra Singh and Mohan Singh were impleaded as parties to the suit. 3. Learned Magistrate vide its judgment dated 28.12.1987 decreed the suit in favour of the petitioner and the petitioner was declared as Khatedar of the land bearing Khasra No. 874. Aggrieving and dissatisfying with the judgment dated 28.12.1987, the respondent preferred an appeal before the Revenue Appellate Authority, Bharatpur and the R.A.A. allowed the appeal of the respondent nos. 4 and 5 vide judgment dated 21.9.1988 and this judgment passed by the RAA has been assailed by the petitioner before the Board of Revenue and the Board of Revenue upheld the judgment and decree passed by the Revenue Appellate Authority vide its judgment dated 7.2.1995. 4. The present writ petition is preferred against the judgments dated 21.9.1988 passed by the Revenue Appellate Authority and 7.2.1995 passed by the Board of Revenue on the ground that the petitioner was having possession over the land in question and name of the petitioner was entered as Shikmi Kashtkar since Samvat 2017 and as per the provisions of Section 19(1)AA of the Act, the petitioner acquired the khatedari rights and the learned Revenue Appellate Authority as well as Board of Revenue have not rightly considered the provisions of Section 19(1)AA. 5. 5. Learned counsel for the petitioner also submits that this is no doubt that the petitioner was in physical possession over the land in dispute for more than 20 years and without considering this aspect and the provisions as referred herein above, the Revenue Appellate Authority as well as the Board of Revenue have passed orders which are in contravention of the ratio decided by Hon'ble the Supreme Court reported in AIR 1954 SC 526 and the judgment reported in 1978 RRD 512 and after referring the judgments and the provisions submits that the orders impugned passed by the Revenue Appellate Authority and Board of Revenue be quashed and set aside and the judgment and decree passed by the Assistant Collector cum Executive Magistrate be maintained. 6. Per contra, learned counsel for the respondents submits that as per the provisions of Section 19(ii)(2), the suit which was preferred by the petitioner under section 88 of the Rajasthan Tenancy Act is barred by prescribed period of limitation of one year. 7. Learned counsel for the respondents further submits that the petitioner being Shikmi Kashtkar cannot acquire any right of khatedari nor can become the khatedar tenant of his land. 8. Learned counsel for the respondents further submits that the Revenue Appellate Authority has rightly considered the revenue record and the Jama Bandi of Samvat Year 2009 and in the Jama Bandi the petitioner's name does not find place and only in the Jama Bandl of 2017, the father of the Khatedar Ratan was entered as Khatedar and cultivation has been mentioned by Babu. As such it is clear from the evidence on record that Ratan have acquired rights by virtue of long old possession and was rightly entered as khatedar in the revenue record and the Revenue Appellate Authority as well as Board of Revenue have not committed any wrong in i quashing and setting aside the judgment and decree passed by the Assistant Collector. 9. To resolve the present controversy I would like to examine the provisions of Tenancy Act. As per Section 19(1)AA. Every person who, on the 31st day of December, 1969 was entered in the annual registers then current as the tenant of Khudkasht or sub-tenant or was not so entered, but was a tenant of Khudkasht or sub-tenant of land other than Govt. As per Section 19(1)AA. Every person who, on the 31st day of December, 1969 was entered in the annual registers then current as the tenant of Khudkasht or sub-tenant or was not so entered, but was a tenant of Khudkasht or sub-tenant of land other than Govt. land, shall, subject to the exceptions contained in the provisos to sub-section (1) as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1979. The proviso attached to section 19(1)(AA) provides that no khatedari rights i shall accrue under the sub-section in the land which has been, or is liable to be declared surplus. 10. Upon perusal of sub-section (2A)(i) every tenant of Khudkasht or sub-tenant claiming that the rights mentioned in sub-section (1AA) accrued to him on the said date in the whole or any part of his holding shall within one year of that date and on payment of a court fee of fifty paise, apply to the Assistant Collector having jurisdiction, praying for a declaration that such right accrued to him as aforesaid and the provision of sub-section (5) of section 15 shall apply to such application. 11. Admittedly, in the present case, the suit under section 88 has been filed by the petitioner on 1.1.1982 and after the appointed date i.e. 31st day of 1969 and since no declaration has been obtained or issued under Clause-I or Clause-II, such tenant of Khudkasht or sub-tenant shall not be regarded to have become the Khatedar tenant of his holding or part thereof. 12. As per provisions of Section 63 which deals with the Extinction of tenancies. (1), the interest of a tenant in his holding or a part thereof, as the case may be, shall be extinguished. As per clause (iv), when he has been deprived of possession and his right to recover possessions is barred by limitation. 13. Therefore, in the present case in view of section 19-AA and Section 63(iv), the suit which was preferred by the petitioner is beyond the prescribed limitation i.e. beyond one year. Therefore, the judgments passed by the Revenue Appellate Authority and Board of Revenue have committed no wrong. 14. Consequently, writ petition fails and is hereby dismissed.At this stage, learned counsel for the petitioner requests that since he is having possession over the disputed land till date and he can only be dispossessed after following due process of law. Therefore, the judgments passed by the Revenue Appellate Authority and Board of Revenue have committed no wrong. 14. Consequently, writ petition fails and is hereby dismissed.At this stage, learned counsel for the petitioner requests that since he is having possession over the disputed land till date and he can only be dispossessed after following due process of law. Accordingly, the respondents are directed to get the possession after following due process of law.Writ petition dismissed - Respondents to take possession under due process of law. *******