Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 2540 (RAJ)

Govind Singh v. Hanuman

2008-11-18

G.K.TIWARI, KUSHAL SINGH

body2008
JUDGMENT SINGH, Chairperson.—Both tha above citecd second appeals under section 224 of the Rajasthan Tenancy Act 1955 (in short 'the Act of 1955') are directed against the judgemnt and decree dated 24.12.2001 of Revenue Appellate Authority Jaipur by which he dismissed the appeals filed before him against the judgment and decree dated 23.9.1998 of Assistant Collector (First) Jaipur. 2. Both the above cited appeals are taken together for disposal by a common judgment as trial court and Revenue Appellante Authority have also decided both the case by a comman judgment in view of the fact that the respondents are the same and subject matter of dispute pertains to the same defendants. A copy of this judgment may be kept in each of the files separately. 3. The facts, in brief, leading to the second appeals are that the appellants-plaintiffs filed suits under sections 88 and 188 of the Act of 1955 against the respondent-defendants for declaration of khatedari rights in respect of the disputed land on the basis of their adverse possession on the suit land. Khasra Nos involved in appeal No. 533/02 are 67, 68, 69, 70, 72 and 79; and khasra numbers involved in appeal No. 377/02 are 41, 50, 51, 52, 53, 54 and 55 which are located in village Maheshpura of Tehsil Amber in Jaipur District Assistant Collector dismissed the suits by his common judgment dated 23.9.1998 against which the appellants preferred appeals before Revenue Appellate Authority Jaipur who dismissed both the appeals by a common judgment dated 24.12.2001, aggrieved against which these two second have been filed. 4. We have heard the learned counsels of rival parties. 5. The learned counsel for the appellants has pleaded that the disputed lands have been in possession of the appellants since the era of Jagirdar; the respondents were never in possession of this land though the land is recorded in their names by way of khatedari rights in jamabandi. The respondents had earlier filed a suit under section 183 of the Act of 1955 before Assistant Collector Jaipur which was dismissed on 5.12.1990. In a case instituted under section 145 of the Cr.P.C. possession on the disputed land was held to be in favour of the appellants. The respondents now cannot recover possession of the dispute land as their claim for restoration of possession has become time barred. In a case instituted under section 145 of the Cr.P.C. possession on the disputed land was held to be in favour of the appellants. The respondents now cannot recover possession of the dispute land as their claim for restoration of possession has become time barred. The appellants have acquired khatedari right by virtue of their adverse possession on the land and the khatedari rights of the respondents have become extinguished under section 63(iv) of the Act of 1955. But both the learned lower courts have erred in dismissing the suit of the appellants for declaration of khatedari rights illegally and unjustly. The learned counsel cited 1993 RRD 178, 1991 RRD 1, 1994 RRD 528, 1994 (1) RBJ 50 and 2002 RRD 47 in support of his contention that the appellants have become khatedar on account of adverse possession and khatdeari rights of respondents stand extinguished. 6. Countering the agruments of the appellants, the learned counsel for the respondents contended that the disputed land belong to member of scheduled castes community and presently the suit lands stand in the khatedari rights of the respondents. There can never be any kind of adverse possession on the land belonging to the person of scheduled caste or scheduled tribe as it is in violation of section 42 of the Act of 1955. The learned counsel cited 1985 RRD 567, 1998 RRD 537, 2002 RRT (1) 628, 1998 (5) RBJ 77-81 in support of his contention. It was also pleaded that earlier suit filed under section 183 of the Act of 1955 before Assistant Collector was dismissed in default and not on merit; as such this has no bearing on the present case. The judgments passed by both the lower courts are just and concurrent which do not warrant any interference in the second appeal. 7. Vehemently opposing the contentions of the appellants, the learned Government Advocate argued that there cannot be any adverse possession on the land of Scheduled caste or Scheduled tribe khatedar. He cited 1991 RRD 1 (L.B.), 1998 RBJ 331, 1993 RRD 153, 2002 RRD 41 and 2008 (1) RRT 3 in support of his contention. 8. We have given our thoughtful consideration to the rival contentions, perused the impugned judgments of both the lower courts and carefully gone through the record available on the file. 9. He cited 1991 RRD 1 (L.B.), 1998 RBJ 331, 1993 RRD 153, 2002 RRD 41 and 2008 (1) RRT 3 in support of his contention. 8. We have given our thoughtful consideration to the rival contentions, perused the impugned judgments of both the lower courts and carefully gone through the record available on the file. 9. Admittedly the respondents are from scheduled caste and are recorded khatedar tenants of the suit lands as per current jamabandi and other revenue records. The appellants are claiming khatedari rights on the disputed land on the basis of adverse possession only. Under the Rajasthan Tenancy Act 1955 the modes of accrual of khatedari rights are contained in provisions of section 13 when khatedari rights accrue upon resumption or abolition of a former state; under section 15 when a recorded or unrecorded tenant or a holder of khudkasht aquires khatedari rights; and under section 19 when a sub-tenant of khudkasht acquires khatedari rights. There is no other mode of accrual of khatedari rights under any of these three modes of accural of khatedari rights. The appellants have put forth their claim for khatedari rights on the basis of adverse possession only; but there is no provision for accrual of khatedari rights on the basis of adverse possession under the Act of 1955. Hovever, it has been propounded through various judicial pronouncements of this court as well as Hon'ble High Court that adverse possession on suit land can become a ground for conferment of khatedari right provided such possession is in accordance with the law and is not specifically prohibited by any law. The Larger Bench of this court has unequivocally held in its judgment reported in 1991 RRD 1 as under:- "The correct law is that by adverse possession, the trespasser acquires khatdari rights provided that the acquisition of khatedari is not specidically prohibited by law, e.g., section 42 and section 16 of the Rajasthan Tenancy Act." The appellants have not indicated as to how they came in possession of the disputed land. It is apparent from the perusal of the record that the appellants have forcibly occupied the suit land. Now they are pleading adverse possession on the basis of the which they are seeking khatedari rights; in fact the status of the appellants is that of rank treaspassers. It is apparent from the perusal of the record that the appellants have forcibly occupied the suit land. Now they are pleading adverse possession on the basis of the which they are seeking khatedari rights; in fact the status of the appellants is that of rank treaspassers. Had there been a willing transfer of the disputed land from respondents to the appellants through any recognizable mode of transfer, then also the plea of adverse possession could have been untenable as is esplicitly held by Hon'ble High Court of Rajasthan in S.B.C. Writ Petition No. 3447/95 reported in RBJ (5) 1998 page 331-332, a relevant part of which is reproduced below:- "It is thus, settled legal position that when a person has purchased the land in contravention of the provisions of section 42 of the Tenancy Act, he cannot acquire khatedari rights by adverse possession." Thus, when a recongizable of transfer does not become ground for adverse possession in respect of the land belonging to the person of scheduled caste or scheduled tribe, there is absolutely no question of adverse possession on the land is unlawfully occupied through use of brute force and undue influence. 10. Division Bench of Hon'ble Rajasthan High Court in D.B. Civil Writ Petition No. 2321/81 reported in 1994 (1) RBJ 50-51 has, interalia, clearly enunciated: "that section 42 of the Act prohibits transfer of land by khatedar tenant belonging to scheduled caste to a person who did not belong to scheduled caste and the prohibition under this section is absolute". Word 'transfer' used in provision to section 42 of the Act should be treated in comperhensive term. If any non-S.C./S.T. person seeks declaration of tenancy rights in respect of agricultrual land recorded in khatedari right of a S.C./S.T. tenant through a court decree, then also it would come within the mischief of prohibited transfer under section 42. Even contested decree resulting in such transfer of land would be covered by section 42. We are fortified in holding this view by judgment of Hon'ble High Court of Rajasthan reproted in 1983 RRD 159. Even contested decree resulting in such transfer of land would be covered by section 42. We are fortified in holding this view by judgment of Hon'ble High Court of Rajasthan reproted in 1983 RRD 159. Thus, it is crystal clear that section 42 of the Act of 1955 imposes absolute prohibition on transfer of land belonging to scheduled caste or scheduled tribe to any other person who is not a member of scheduled caste or scheduled tribe; and under section 88 of the Act of 1955 a trespasser claiming right exclusively on the basis of adverse possession which is specifically prohibited by law is untenable. 11. In view of the above discussion, it is evident that adverse possession on the land of scheduled caste or scheduled tribe does not become ground for conferment of khatddari rights on a trespasser; as such there is no question of extinction of tenancy rights under section 63(iv) of the Act of 1955 in respect of the land recorded in the khatedari right of a person of scheduled caste or scheduled tribe. If such blatant aggression and rank trespass on the land of scheduled caste and scheduled tribe were rewarded with conferment of khatedari right under the garb of adverse possession, this would not only put premium on lawlessness but also encourage the unscrupulous mighty aggressors to usurp title on the lands of the weaker and vulnerable class. Such illegal act and wanton greed for encroaching on lands must be checked forcefully with all strength of the law. 12. In view of the above deliberation and analysis, we find no illegality or infirmity in the judgments dated 24.12.2001 and 23.9.1998 of Revenue Appellate Authority Jaipur Assistant Collector Jaipur respectively - which do not warrant nay interferance in the second appeal. Thus, both the appeals are without any force. 13. Resultantly both the appeals are dismissed with cost of Rs. 3000/- each. Pronounced.