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2008 DIGILAW 583 (RAJ)

Soni v. Board of Revenue

2008-02-22

VINEET KOTHARI

body2008
Honble KOTHARI, J.—This writ petition has been filed by Smt. Soni W/o Joga Ram, Bhoma Ram S/o Joga Ram and Mohan Lal S/o Joga Ram, By caste Bhambhi, Scheduled Caste, being aggrieved by the judgment and order of the Board of Revenue dated 24.5.2002 disposing of the Revision Petition No. 201/1999 filed by the present petitioners and appeal No.75/1999 filed by the respondents No.5 and 6, being aggrieved by the order of the Revenue Appellate Authority dated 24.6.1999. 2. The present petitioners had filed a revenue suit under Section 88 and 188 of the Rajasthan Land Revenue Act before the Assistant Collector. Jodhpur with plaint averments that land of 106 bighas and 5 biswas in khasra No.207 in village Jajiwal Gehlota was recorded in the name of Joga Ram, husband of the plaintiff Smt. Soni and father of plaintiffs No.2 and 3 Bhoma Ram and Mohan Lal and after the death of said Joga Ram the said land was recorded in the name of plaintiffs No.2 and 3 and the plaintiffs were in possession of the said land. It was further stated in the plaint that the defendant No.l Bhoma Ram S/o Keshar Singh got mutation illegally done in his favour in respect of 74 bighas and 5 biswas under the mutation entry No.73 and on the basis of said mutation entry. the said defendants were interfering with the peaceful possession of the plaintiffs and on account of proceedings under Section 145 Cr.P.C. the possession of land in question was given to the Receiver i.e the Tehsildar on 24.8.1974 and since then the said land is in possession of the receiver only. 3. It is further case of the petitioners that on 24.5.1978. the learned SDO while deciding the said Section 145 Cr.P.C. proceeding directed the parties to get their respective rights decided in competent civil Court. Accordingly, suit under Section 88 and 188 of the Rajasthan Land Revenue Act was filed by the plaintiffs on 22.8.1990. 4. The defendants came up with a plea in their written statement that a registered sale-deed was executed in their favour on 16.9.1957 in respect of said 74 bighas and 5 biswas of land by Smt. Soni and the possession of the same was delivered to them. The said suit No.96/1990 filed by the plaintiffs was dismissed by the Revenue Court on 29.2.1996. The said suit No.96/1990 filed by the plaintiffs was dismissed by the Revenue Court on 29.2.1996. By order dated 29.2.1996 the said Assistant Collector also held while disposing of the suit of the plaintiffs that, the in question vested in the State Government as sale made in favour of the defendants was void being in violation of Section 42 of the Rajasthan Tenancy Act as it was a sale by a member of Scheduled Caste to a member of non-Scheduled Caste. 5. Both the parties, filed appeals before the Revenue Appellate Authority, Jodhpur. The said appeals were disposed of by the Revenue Appellate Authority on 24.6.1999 and while partly allowing the Appeal No.8 1996 filed by the present petitioners, Smt. Soni and her sons, the Appeal No. 11/1996 filed by the respondents Bhoma Ram and others was rejected. The Revenue Appellate Authority however directed in para 18 of its order that if the plaintiffs deposit Rs.70,000/- within three months, the possession of the land in question may be given back to them. If the plaintiffs fail to deposit the said amount the land would vest in the State Government. 6. Both the parties again approached the Board of Revenue. Ajmer, present plaintiffs by way of Revision petition No.201 1999 and respondents by way of Appeal No. 11/1999 and 75/1999 respectively. All these appeals and revision petition were disposed of by the Board of Revenue by the impugned judgment and order dated 24.5.2002 holding that though the sale said to have been made in favour of the defendants on 16.9.1957 was against the provisions of law. but in absence of any proceedings undertaken by the plaintiffs in the competent Civil Court, the present suit under Section 88 and 188 could not be decreed and the counter claim of the defendants deserved to be allowed. The Board of Revenue further held that the plaintiffs had not taken any proceedings under Section 183 of the Rajasthan Land Revenue Act and therefore, were not entitled to any relief in this regard. Thus, the order of the Revenue Appellate Authority dated 24.6.1999 was set aside and accepting the counter claim of the defendants, the Board of Revenue directed the defendants to be declared khatedar tenants over the land measuring 74 bighas and 5 biswas in khasra No.207 in Jajiwal Gehlota. Thus, the order of the Revenue Appellate Authority dated 24.6.1999 was set aside and accepting the counter claim of the defendants, the Board of Revenue directed the defendants to be declared khatedar tenants over the land measuring 74 bighas and 5 biswas in khasra No.207 in Jajiwal Gehlota. The revision petition filed by the present plaintiffs - petitioners was dismissed as infructuous in view of the appeal of the defendants having been allowed by the Board of Revenue. 7. Being aggrieved by the said order of the Board of Revenue, the present petitioners Smt. Soni and her sons have approached this Court by way of present writ petition. 8. Mr. C.R. Jakhar. learned counsel for the petitioners emphatically submitted that the alleged sale made in favour of the respondents on 16.9.1957 was void being prohibited by law in view of proviso inserted in Section 42 of Rajasthan Tenancy Act, 1955 w.e.f. 22.9.1956 and therefore, the said sale even though denied by the plaintiffs and not proved by the defendants anywhere in the Courts below was void and had to be ignored. He further urged that mutation entries in respect of said land in dispute were also recorded again in favour of the present petitioners and, therefore, they were entitled to possession of said land from the Receiver appointed in Section 145 proceedings way back on 24.8,1.974. He submitted that the Board of Revenue as well as the authorities below have erred in rejecting the suit filed by the petitioners - plaintiffs under Section 88 and 188 of the Rajasthan Land Revenue Act and therefore, the writ petition deserves to be allowed. He relied upon several judgments of this Court and brief discussion of the same hereunder would be appropriate. Before coming to the discussion of case laws, it would be appropriate to quote below historical background of Section 42 of the Rajasthan Tenancy Act and the said provisions amended from time to time and as it now stands is given below for ready reference: Legislative History of Sec. 42. 9. Before coming to the discussion of case laws, it would be appropriate to quote below historical background of Section 42 of the Rajasthan Tenancy Act and the said provisions amended from time to time and as it now stands is given below for ready reference: Legislative History of Sec. 42. 9. The Rajasthan Tenancy Act was enforced from 15.10.1955 and on that date the Section 42 read as under: As on 15.10.1955 Section 42, Sale or Gift- Except with the general or special permission of the State Government no khatedar tenant shall have the right to transfer by sale or gift his interest in the whole or a part of his holding to any person who at the date of such transfer is already in possession of land which together with the land so transferred will exceed 90 acres of unirrigated or 30 acres of irrigated land. Explanation:- If such land is partly irrigated and partly unirrigated, one acre of irrigated land, shall, for calculating the area of land for the purposes of this Section, be deemed to be equivalent to three acres of unirrigated land. Thus, according to this Section the restriction was confined to the transferee who could not acquire land, by sale or gift, more than the limits placed in this Section. The Act was for the first time amended by the Act No. 27 of 1956 dated 22.9.1956, which received the assent of the President on. 14.9.1956. In this Amendment Act this Section was not touched. Then, the Act was again amended by the Rajasthan Tenancy (Second) Amendment Act 1956 (Act 78 of 1956) which also came into force on 22.9.1956. By this Amendment Act a proviso to Section 42 was added and Section 46A and 49-A were newly introduced. The proviso added was as under:- As on 22.9.1956 "Provided that no Khatedar tenant being a member of Scheduled Caste or a Scheduled Tribe shall so transfer his rights in the whole or a part of his holding to any person who is not a member of a Scheduled Caste or a Scheduled Tribe." The provisions as now stand after Amendment Act No. 12 of 1964 effective from 1.5.1964 and amendments w.e.f. 11.11.1992 and 30.9.1999, the later two amendments being not relevant here, are not separately mentioned read as under: 42. General Restrictions on sale, gift and bequest- The sale gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void, if- (a) deleted w.e.f. 11.11.92 (b) 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, (bb) Such sale, gift or bequest notwithstanding anything contained in clause (b). if by a member of Saharia Scheduled Tribe in favour of a person who is not a member of the said Saharia Tribe." (c) Omitted" Case Laws 10. The Division Bench of this Court in the case of Triveni Shyam Sharma V/s Board of Revenue reported in 1964 RLW 512 while dealing with a registered sale-deed dated 31.12.1955 from a member of Scheduled Caste to a member of other Caste which was challenged in view or amendment in law in Section 42 of the Act held that in deeming clause inserted by Section 4 of the Rajasthan Tenancy (Second amendment) Act. 1956, the words "deemed always to have been added" were ultra vires and said amendments could not be held to be retrospective in operation. In para 15 of the said judgment the Division Bench has held as a rider. "15. In this view of the matter, there seems to be no force in the contention raised to learned counsel for the contending respondents, because Gyarsia had parted with his Khatedari rights in the property long before the proviso was added to Sec. 42. The insertion of the proviso could not revive his (Merest merely because the deeming clause rendered its operation retrospective. His interest had already ceased to exist and there remained nothing to be protected by law. We. therefore, hold that the deeming clause was violative of Art. 19 in so far as it resulted in divesting the petitioner in whom the vendors right and interests had vested before the second amendment." Thereafter examining the Rajasthan Tenancy (Amendment) Act No. 12 of 1964, which came into force on 1.5.1964, which made transfer by way of sale, gift or bequest by a member of scheduled caste to a member of other caste void, the Division Bench held in para 18 as under : "18. Learned counsel for the respondents has urged that according to Cl. (b) of the amended section, the sale in favour of the petitioner was void since he was not a member of a Scheduled caste or a Scheduled Tribe. It would suffice to say that while substituting Sec. 42, the Legislature took good care in not making the change to operate retrospectively. The plain reading of Sec. 3 would show that the new Section 42 was substituted in place of the old one with effect from the date this amended Act came into force, namely, 1st May, 1964. This Act also does not seek to validate the deeming clause appearing in Sec. 4 of the Second Act, which was invalid from the very date it was introduced, as held above. The Constitution (Seventeenth Amendment) Act, 1964 protects the Rajasthan Tenancy Act, 1955, as it stood on the date the said amendment of the Constitution of India came into force. 11. After discussing the aforesaid judgment of Division Bench in Triveni Shyam Sharmas case (supra), the learned Single Judge of this Court in Kamad vs. Board of Revenue reported in 1986 RRD 51 held that transfer by a Scheduled Caste person in violation of Section42 on 13.9.1963 was also void and not merely voidable. Distinguishing the decision of Triveni Shyam Sharma, the learned Single Judge in para 5 held as under : 5. I see no force in this connection. The facts in Pt. Triveni Shyam Sharmas case (supra) were that Pt. Triveni Shyam Sharma and one Gyarsa jointly filed a suit against Mangya and four others for possession of Khasra No. 538 situated in village Thundi, Tehsil Dausa. It was averred that the plaintiff No. 2 Gyarsa in that case was a khatedar tenant of said Khasra No. 538 which as a grove land and that he had transferred his khatedari rights by sale of Pt. Triveni Shyam Sharma by a registered sale-deed dated December 31, 1955. It was furhter stated that the vendor has delivered possession of the grove-land to Pt. Triveni Shyam Sharma and that the defendants had without any rightful claim wrongfully dispossessed Pt. Triveni Shyam Sharma from the said property and so it was prayed that the possession of the property should be restored to him. The defendants contested the suit. It was furhter stated that the vendor has delivered possession of the grove-land to Pt. Triveni Shyam Sharma and that the defendants had without any rightful claim wrongfully dispossessed Pt. Triveni Shyam Sharma from the said property and so it was prayed that the possession of the property should be restored to him. The defendants contested the suit. One of the grounds raised by them before the Assistant Collector, Dausa ws that Gyarsa was a member of the Scheduled Caste and that he could not transfer his khatedari rights in favour of Pt. Triveni Shyam Sharma as he was not a member of Scheduled Caste...." In para 6 of the said judgment, the learned Single Judge held that alleged sale made on 13.9.1963 was void as there was clear prohibition after 22.9.1956 against making any sale by a member of Scheduled Caste or Scheduled Tribe in favour of a person who was not a member of Scheduled Caste or Scheduled Tribe. Para 6 is also quoted below for ready reference. "6. The above case renders no assistance at all to the petitioners in the present case. the Second Amendment in Sec. 42 by which a proviso was added to Sec. 42 was brought into force on September 22, 1956. In Pt. Triveni Shyam Sharmas case (supra), the sale had been effected on December 31, 1955, i.e. prior to September 22, 1956. In the case before us even the alleged sale has been made on September 13, 1963, which is much later to the coming into force of the Second Amendment Act. There is no question in the present case of any rights having been vested in the defendants prior to September 22, 1956. After September 22, 1956, there was a clear prohibition in making any sale by a member of a Scheduled Caste or a Scheduled Tribe in favour of a person who was not a member of a Scheduled Caste or a Scheduled Tribe." Relying upon the Division Bench judgment in Ram Chandra vs. Om Prakash, reported in 1978 RLW 442, the learned Single Judge, therefore, concluded that the sale in question was void. Para 8 is also quoted below : "8. Para 8 is also quoted below : "8. A Division Bench of this Court in Ram Chandra vs. Om Prakash (1978 RLW 442) has clearly held that a sale in contravention of the proviso to Section 42 being forbidden by law, within meaning of Section 25 of the Indian Contract Act is void and not enforceable in law. The sale in question in that case was held to be void and not merely voidable. In this view of the matter, there is no force in the contention of Mr. Bardhar that the transaction in question being made prior to May 1, 1954 (sic! 1964), was not void and could be enforced under law." 12. The Division Bench of this Court in the case of Ram Chandra vs. Om Prakash, reported in 1978 RLW 444 = 1979 RRD 207 held in para 5 of a short judgment that the sale in question being in contravention of proviso to Section 12 which categorically forbids the sale by a member of the Scheduled Caste or Scheduled Tribe in favour of persons who are not members of that class, is therefore, forbidden by law within the meaning of Section 23 of the Indian Contract Act and it is well settled that where a contract, which a party seeks to enforce, is expressly or by implication forbidden by any law, no Court will lends its assistance to give it effect. The provisions of Section 42 quoted in para 1 of the said judgment shows the proviso as it was on the statute book prior to 1.5.1964. However, since the date of sale is not mentioned in the said judgment, it is not known. The question, therefore, as to the difference between void and voidable was not discussed in detail by the Division Bench. However, the said judgment of course lays down that such sale being forbidden as per proviso to Section 42, could not be enforced in law. The Court in para 5, therefore, held that the sale in question was therefore, rightly held to be void by the Board of Revenue. 13. However, the said judgment of course lays down that such sale being forbidden as per proviso to Section 42, could not be enforced in law. The Court in para 5, therefore, held that the sale in question was therefore, rightly held to be void by the Board of Revenue. 13. In the case of Balu vs. Birda, reported in 1982 RLW 391, the learned Single Judge of this Court held in para 18 that the provisions of Section 42 have been enacted for prohibiting transfer of agricultural land from Scheduled Caste or Non-Scheduled Caste on the ground that Scheduled Caste and Scheduled Tribe are the weaker sections of Society and if protection is not given, the other affluent members of society would exploit them. This is Socio-Economic Legislation to ameliorate the condition of downtrodden, depressed and suppressed segment of society, who are weaker financially, economically, socially and also in education and therefore, it was necessary that broad, liberal interpretation should be made to the world "transfer" in proviso to Section 42 and all direct or indirect method of transferring property should be considered to be hit by the prohibition contained in Section 42 and such sale or bequest would be void. Thus, transfer even by way of compromise decree in a suit was field to be falling within the mischief of prohibition contained in Section 42 of the Act. 14. In the case of Babu vs. State of Rajasthan, reported in 1998 RRD 396, another learned Single Judge of this Court held that before 1964 amendment in Section 42 of the Tenancy Act, sale of land by Scheduled Caste to non-Scheduled Caste was though not expressly held to be void, yet it was forbideen by Section 42, therefore, such sale was forbidden by law within meaning of Section 23 of the Contract Act and no Court will lend its assistance to give effect to a contract forbidden by law and therefore, when a person has purchased the land in contravention of Section 42, he cannot acquire khatedari rights even by adverse possession. Moreover, original transferor was gair khatedar and as such the interest in the holding was not transferable because of Section 38 of the Rajasthan Tenancy Act. The judgment cited above in Ramchandras case and in the case of Khuman Mal vs. Bheru (supra) were relied upon by the learned Single Judge. 15. Mr. Moreover, original transferor was gair khatedar and as such the interest in the holding was not transferable because of Section 38 of the Rajasthan Tenancy Act. The judgment cited above in Ramchandras case and in the case of Khuman Mal vs. Bheru (supra) were relied upon by the learned Single Judge. 15. Mr. C.R. Jakhar, therefore, submitted that on the basis of aforesaid judgments, the alleged sale claimed to have been made in favour of respondents on 16.9.1957 though not proved before any of the lower Courts, was void and could not be enforced against the present petitioners belonging to Scheduled Caste and since alleged sale was prior to 1.5.1964, the land could not be declared to be of khatedari of the respondents and the Board of Revenue had clearly fallen into error in doing so. He, therefore, prayed for allowing of the writ petition. 16. On the side opposite Mr. J.L. Purohit, learned counsel for the respondents heavily relied upon the Division Bench judgment in the case of Triveni Shyam Sharma (supra), particularly the paras quoted above and submitted that since said sale by a person of Scheduled Caste to a person of other caste was statutorily declared to be void only w.e.f. 1.5.1964, the sale in question made in favour of the respondents on 16.9.1957 much prior to said amendment in law could not be declared to be void per se. He submitted that at worst, even if said sale was voidable being contrary to the proviso to Section 42 as it existed on the statute book between 22.9.1956 to 1.5.1964, the present petitioners members of Scheduled Caste were required to take steps and legal proceedings to get said sale to be declared void or avoid the same, as it was only voidable, by a decree of competent Civil Court and since the Division Bench in Triveni Shyam Sharmas case had categorically laid down that said provision was not retrospective and in para 18 of the said judgment, the Division Bench had also held while meeting the contentions of the respondents that as per the amended Section w.e.f. 1.5.1964, the sale in favour of the petitioner was void, the Division Bench had observed that the legislature took good care in not making the change to operate retrospectively and plain reading of section 3 of the Amendment Act No. 12 of 1964 would show that new Section 42 was substituted in place of old one w.e.f. the date this Amendment Act came into force, namely, 1.5.1964. The sale prior to 1.5.1964 could not be said to be void ab initio. He submitted that the Division Bench further observed in para 18 that this Act (Act No. 12 of 1964) also does not seek to validate deeming clause appearing in Section 4 of the Second Act which was invalid from the very date it was introduced as held by the Division Bench and, therefore, he submitted that sale dated 16.9.1956 in favour of the present respondents upheld by the Board of Revenue as proved could not be ignored and in absence of petitioners having obtained any decree to avoid the said sale in favour of the present respondents, the judgment of the Board of Revenue cannot be assailed successfully by the petitioners. 17. He relied upon the decision of Honble Supreme Court in the case of State of Kerala vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil & Ors., reported in AIR 1996 SC 906 for the proposition that mere use of word "void" is not determinative of its legal impact. The word "void" is not determinative of its legal impact. The word "word" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. The word "void" is not determinative of its legal impact. The word "word" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity depending upon the gravity of the infirmity as to whether it is fundamental or otherwise. In the said case the Honble Supreme Court was dealing with an order of Taluk Land Board rejecting the impleadment petition of some persons claiming to be the tenants of teh landholder holding that the tenancy was collusive was affirmed by the High Court and the order of the High Court had become final and such order would not be rendered invalid in view of the subsequent order of the High Court in a petition by the landholder against the order of the Board directing him to surrender the land in excess of ceiling area. In this context, the Honble Supreme Court held that such an order will in fact be effective inter parties until it is successfully avoided or challenged in higher forum. This judgment being in different context hardly helps the respondents in the present case. 18. Mr. Purohit also relied upon the judgment of the Honble Supreme Court in the case of Nathu Ram vs. State of Rajasthan and Ors., reported in 2006(1) RRT 383 in which the Honble Supreme Court was dealing with a question of limitation of 12 years for proceedings under Section 175 of the Rajasthan Tenancy Act and observed in para 4 as under : "4. .................... The transfers being one of 2.4.1964 and another on 4.5.1964, the proper application should have been filed within twelve years, but it was filed before the Sub-Divisional Officer only on 22.11.1976. In that view of the matter, the proceedings were initiated beyond the period of limitation. Therefore, it was barred by limitation and the finding of the S.D.O. is correct which has been rightly confirmed by the authorities right up to the High Court. 5. The contention of the appellants counsel that the assignments were by itself void, therefore, the period of limitation has no application, cannot be accepted for the reason that the specified procedure is prescribed under Clause 4(A) of Section 175 of the Rajasthan Tenancy Act. 5. The contention of the appellants counsel that the assignments were by itself void, therefore, the period of limitation has no application, cannot be accepted for the reason that the specified procedure is prescribed under Clause 4(A) of Section 175 of the Rajasthan Tenancy Act. If only such proceeding is initiated, the authorities are entitled to declare that such transfer executed is void and property be resumed......................." This citation also is of no help to the respondents as provisions of Section 175(4A) are for different purpose and the Honble Supreme Court was considering the question of limitation under the said provision. 19. The learned counsel Mr. Purohit also relied upon the judgment of this court in the case of Sawa Lal vs. State of Rajasthan & Ors., reported in 1984 RLR 842 wherein the learned Single Judge in a short judgment held that amendment of Section 42 in 1964 was not retrospective and therefore, the amendment will not apply in respect of transaction completed before the amendment came into force. 20. I have heard the learned counsel at length and gone through the judgments cited at bar and the impugned orders of the Authorities below including the order of the Board of Revenue dated 24.5.2002. 21. Having given the thoughtful consideration, this Court is of the opinion that the weight of the authorities or precedents is clearly in favour of the petitioners wherein it has been categorically laid down that after insertion of proviso in Section 42 of the Rajasthan Tenancy Act w.e.f. 22.9.1956, in view of clear prohibition contained in said proviso, transfer of land by sale, gift or bequest by a member of Scheduled Caste or Tribe to a member of other caste not being Scheduled caste or Scheduled Tribe is void being prohibited by law and thus being against the public policy and as per Section 23 of the Indian Contract act, such sales could not be enforced against the members of Scheduled Caste and Scheduled Tribes. Of course the words "such sale shall be void" came on the statute book w.e.f. 1.5.1964, but the effect remains the same for the period between 22.9.1956 to 1.5.1964 also, namely, that persons of such other caste cannot claim or cannot seek to enforce any such right transferred to them by a member of Scheduled Caste or Scheduled Tribe in the agricultural land of which they were khatedar tenants, if sale or gift or bequest is prohibited by law as was position contained in Proviso to Section 42 between 22.9.1956 to 1.5.1964. The respondents naturally cannot claim any benefit on the basis of such alleged sale-deed in their favour made on 16.9.1957. 22. The contention raised by the learned counsel for the petitioners that such sale dated 16.9.1956 has not been proved by the respondents anywhere before the owner Courts including the board of Revenue also appears to be justified. Merely because the defendants - respondents herein came up with a defence of this nature in a suit filed under Section 88 and 188 by the petitioners belonging to Scheduled Caste, it could not be said that such sald-deed was proved by them. No proceedings were undertaken by the respondents defendants in the suit or separately seeking to enforce their rights on the basis of alleged sale-deeds dated 16.9.1956. Therefore, the impugned findings of the learned Board of Revenue that such sale-deed dated 16.9.1957 was proved and khatedari right in their favour deserved to be declared, is a finding without foundation and cannot be sustained. 23. The observation of the Division Bench in Triveni Shyam Sharmas (supra) are also of no avail to the respondents in the present case because these observations in para 18 of the said judgment are nothing more than obiter dicta. The Division Bench was in fact concerned with the validity of Section 4 of the Rajasthan Tenancy Act (Second Amendment) Act, 1956 which contained word "deemed always to have been added" with respect to proviso to Section 42 inserted by Section 3 of the Rajasthan Tenancy (Second Amendment) Act, 1956 w.e.f. 22.9.1956 and while striking down said Section 4, the Court held that said amendment of insertion of proviso could not be held to be retrospective. The mention of amendment w.e.f. 1.5.1964 and observations made with respect to that in para 18 were not really decisive in the matter. The mention of amendment w.e.f. 1.5.1964 and observations made with respect to that in para 18 were not really decisive in the matter. The sale in question was one made on 19.5.1955 even prior to insertion of proviso w.e.f. 22.9.1956. Contrary to these observations by way of obiter dicta, in the subsequent decision not only by different Division Benches of this Court, but different learned Single Judge dealing with various cases have held that even sales made by a member of Scheduled Caste to a member of other caste during the period when proviso to Section 42 remained on the statute book between 22.9.1956 to 1.5.1964 were void and could not be enforced against such members of Scheduled Caste. Therefore, the observations made in Triveni Shyam Sharmas case in para 18 cannot be said to be having over-riding effect over the subsequent binding precedents from the division Benches as well as different learned Single Judges of this Court. 24. Consequently, this writ petition is allowed and the impugned orders of the Courts and authorities below, namely, the order of the Assistant Collector, Jodhpur dated 29.2.1996 Annex. 8,order of the Revenue Appellate Authority, Jodhpur dated 24.6.1999 (Annex.9 and dated 19.8.1999 Annex. 10 and judgment and order of the Board of Revenue dated 24.5.2002 Annex. 11 are quashed and set aside. Since the land in question is with the Receiver ever since 24.8.1974 and the petitioners have not succeeded before this Court, it is directed that S.H.O., Dangiawas, Jodhpur shall hand over back possession of the land in question to the petitioners forthwith. The writ petition is accordingly allowed. No order as to costs.