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2008 DIGILAW 2346 (RAJ)

Lalu Ram v. Hanuta Ram (Deceased) through L. Rs.

2008-10-15

G.K.TIWARI

body2008
Judgment Hon'ble TIWARI, M.—This is an appeal under Section 76 of the Rajasthan Land Revenue Act, 1956 (in short `the Act') against the impugned order dated 1.11.1989 of Revenue Appellate Authority Jodhpur passed in appeal No. 103/89. 2. Facts, in brief, leading to the appeal are that the respondents were allotted agriculture land measuring 15 bighas each in land bearing khasra No. 455 located in village Rampura of Tehsil Osiyan District Jodhpur on 4.1.1976 by Sub-Divisional Officer Phalodi on recommendation of the Allotment Advisory Committee. This order of allotment dated 4.1.1976 was challenged by appellant (complainant) before District Collector Jodhpur who vide his judgment dated 7.4.1980 cancelled the allotment made in favour of the respondents. Aggrieved against the order dated 7.4.1980 of District Collector Jodhpur an appeal was filed by the respondents-appellants before the Revenue Appellate Authority (Second) Jodhpur who allowed the appeal on 1.11.1989 and set aside the order of Collector Jodhpur. The judgment dated 1.11.1989 of Revenue Appellate Authority Jodhpur was challenged in second appeal before the Board of Revenue which rejected the appeal vide its judgment dated 14.3.1986 on the ground that the appellant had no locus stands. This order of Board of Revenue was challenged in writ before Hon'ble Rajasthan High Court Jodhpur who vide its judgment dated 11.8.2000 set aside the order dated 14.3.1996 of this Court and directed the Board of Revenue to decide the matter on merit. 3. I have heard both the learned counsels in compliance of the order dated 11.8.2000 of Hon'ble Rajasthan High Court. 4. The learned counsel for the appellant has argued that the disputed land was in possession of the appellant but this land was wrongly and illegally allotted to the respondents whereas the possession of the appellant was fit for regularisation under Rule 20 of the Rajasthan Land Revenue (Allotment of Government Land for Agricultural Purposes) Rules 1970 (in short `the Rules of 1970'). It was argued that khasra parivartansheel of Svt. 2020-30 shows the appellant as cultivator of the land holding the disputed land in possession. Collector Jodhpur rightly cancelled the impugned allotment and ordered for the regularisation of the disputed land in favour of the appellant but Revenue Appellate Authority illegally set aside the order of Collector, ignoring possession of the appellant-respondent on the disputed land. 2020-30 shows the appellant as cultivator of the land holding the disputed land in possession. Collector Jodhpur rightly cancelled the impugned allotment and ordered for the regularisation of the disputed land in favour of the appellant but Revenue Appellate Authority illegally set aside the order of Collector, ignoring possession of the appellant-respondent on the disputed land. The land is still in possession of the appellant as such the impugned order of Revenue Appellate Authority should be quashed. 5. Countering the arguments of the appellant, the learned counsel for the respondents contended that the land under consideration was allotted on 4.1.1976. There is no record produced to show that the appellant was in possession of the disputed land before 1976. All the so-called record of possession is of the subsequent years after 1976. The appellant claims to be in possession of around 70 bighas of land which cannot be regularised. There was no application of the appellant for regularisation or allotment of the disputed land before the Allotment Advisory Committee. Sub-Divisional Officer correctly made allotment on the advise of the Allotment Advisory Committee in the year 1976 which cannot be questioned or cancelled now. There is no illegality in the impugned order of Revenue Appellate Authority which should not be interfered with. 6. I have given thoughtful consideration to the rival contentions, perused the impugned orders of both the lower courts and carefully gone through the record available on the file. 7. Admittedly the disputed land was allotted to the respondents on 4.1.1976 by Sub-Divisional Officer Phalodi on the recommendation of the Allotment Advisory Committee. Collector Jodhpur cancelled the allotment under Rule 14(4) of the Rules of 1970 simply on the ground that the complainant (appellant) was in possession of the land and Tehsildar Osiyan had made recommendation for the regularisation of the possession on 13.9.1977. This finding of Collector Jodhpur is irrelevant and untenable in view of the fact that the disputed land was already allotted to the respondents on 4.1.1976. The alleged recommendation of Tehsildar Osiyan is said to be of 13.9.1977 i.e. almost one year and nine months after the allotment. Perusal of the record shows that Tehsildar Osiyan was a member of the Allotment Advisory Committee which allotted the land to the respondents on the ground of their being bonafide landless agriculturists. The recommendation of the Allotment Advisory Committee bears signature of Tehsildar Osiyan also. Perusal of the record shows that Tehsildar Osiyan was a member of the Allotment Advisory Committee which allotted the land to the respondents on the ground of their being bonafide landless agriculturists. The recommendation of the Allotment Advisory Committee bears signature of Tehsildar Osiyan also. It is also pertinent to observe that there is no evidence that any application was put up by the complainant (appellant) before the Sub-Divisional Officer or Allotment Advisory Committee for regularisation of possession or allotment of the disputed land. Khasra Parivartansheel of Svt. 2034-36 shows appellant in possession of 40 bighas of government land in khasra No. 455/13 whereas respondents were allotted 15 bighas of land in khasra No. 455. It seems that khasra No. 455 was a large chunk of land in which respondents were allotted land in the year 1976 and in subsequent years the appellant also had some land in his trespass. Even if it is presumed that the appellant held some part of the land in his possession, it does not make the land occupied as per provisions of section 5(27) of the Rajasthan Tenancy Act, 1955. The possession of the appellant would be at best a trespass on the government land and a trespassed land does not become `an occupied land' within the meaning of section 5(27) of the Rajasthan Tenancy Act. As such, this land in available for allotment. 8. An allotment order can be cancelled only when it is procured through fraud or misrepresentation or on violation of any of conditions of the allotment or when allottee is found not to be a bonafide landless agriculturist. The appellant has not proved that the respondents-allottees fell under any of these categories and as such were not eligible for allotment. Simple alleged trespass of the appellant on the disputed land does not make him entitled for the allotment of the land. It is also pertinent to point out here that the allotment of the land was made way back on 4.1.1976; now after 32 years of such allotment it is neither prudent nor just and legal to cancel the allotment simply on the ground that the appellant was a trespasser on the land under consideration. 9. In light of above discussion, I do not find any infirmity in the order dated 1.11.1989 of Revenue Appellate Authority (Second) Jodhpur which does not warrant any interference in the second appeal. 10. 9. In light of above discussion, I do not find any infirmity in the order dated 1.11.1989 of Revenue Appellate Authority (Second) Jodhpur which does not warrant any interference in the second appeal. 10. In the result, the appeal is dismissed. Pronounced.