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2009 DIGILAW 1788 (RAJ)

Rama v. State of Rajasthan

2009-08-07

G.K.TIWARI, RAKESH HOOJA

body2009
Dr. HOOJA, C.—This is a second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the impugned judgment dated 28.4.04 of Revenue Appellate Authority Chittorgarh. 2. Briefly stated, the facts leading to the appeal are that the appellant-plaintiff filed a suit under Section 88 and 188 of the Act for declaration of khatedari rights and injunction in respect of the disputed land located in village Devlach (Distt. Chittorgarh), in the court of Sub-Divisional Officer Begun who by his judgment dated 13.12.02 dismissed the suit. Aggrieved against this judgment of Sub-Divisional Officer Begun, the appellant preferred first appeal under Section 223 of the Act before Revenue Appellate Authority Chittorgarh who by the impugned judgment dated 28.4.04 dismissed the appeal. Hence the second appeal. 3. We have heard the learned counsel of both the parties. 4. The learned counsel for the appellant contended that the appellant-plaintiff had been in possession of the disputed land since the era of Jagirdar. At the time of resumption of the jagir the disputed land was erroneously entered in the revenue record as government land whereas it should have been entered in the name of the appellant-plaintiff as khatedar. Nonetheless recognizing the old possession of the appellant-plaintiff on the disputed land, it was regularised in the name of the appellant-plaintiff by the concerned Tehsildar on 8.5.1971 for which appellant also deposited Rs. 216/- as regularisation charges. But unfortunately during the course of settlement the disputed land was recorded as pasture-land (Charnot) wrongly and illegally. In the register of encroachment for the period 1969-71, there is a note of regularisation in its column No. 6 as is clear from Ex. P.1. Both the lower courts have erred in holding the land as pasture-land whereas initially it was a jagir land recorded, subsequently, as government land which was regularised in favour of the appellant-plaintiff. Both the lower courts have wrongly held that the Tehsildar was not competent to regularise the land in favour of the appellant. This might only be a procedural error which cannot take away the right of appellant for regularisation of the land in view of his long possession. The disputed land was wrongly recorded as Charagah; there is separate provision for declaration of Charagah under which no action was taken by the revenue officers. This might only be a procedural error which cannot take away the right of appellant for regularisation of the land in view of his long possession. The disputed land was wrongly recorded as Charagah; there is separate provision for declaration of Charagah under which no action was taken by the revenue officers. The issue No.1 relating to old possession on and regularisation of the disputed land was wrongly and illegally decided by the trial Court. As such the impugned judgments of both the lower court should be set aside. 5. Countering the contentions of the appellant, the learned Government Advocate pleaded that the disputed land has been recorded as pasture-land (Charnot) ever since Svt. 2015. The land under consideration was never regularised in favour of the appellant-plaintiff. There is no order of regularisation of the land by any competent authority. Tehsildar is not competent to regularise any land. Under section 16 of the Act khatedari right cannot be conferred on anybody with regard to pasture-land. There is a casual remark of regularisation in an encroachment register of 1969-71; but regularisation is not proved at all by production of any order of Sub-Divisional Officer or Allotment Advisory Committee or any order of mutation carried out in compliance of the alleged allotment order. No khatedari right can be awarded simply on the basis of Ex. P.1 which is an entry in encroachment register. Both the lower courts have given concurrent judgments which cannot be interfered with in the second appeal. 6. We have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the record available on the file. 7. The prominent contention of the appellant-plaintiff for claiming khatedari right in respect of the disputed land is that he has been in possession of the disputed land since jagir era due to which the suit land was regularised by the concerned Tehsildar in favour of the appellant-plaintiff. But no order of regularisation of the land in favour of the appellant-plaintiff has been produced before any of the Court. Once a land is regularised in favour of any person, order of regularisation, Sanad and Patta of allotment (regularisation) are issued. There is a record of the proceedings of the Allotment Advisory Committee/allotting authority about recommendation and order of allotment. But in this case none of such document is produced. Once a land is regularised in favour of any person, order of regularisation, Sanad and Patta of allotment (regularisation) are issued. There is a record of the proceedings of the Allotment Advisory Committee/allotting authority about recommendation and order of allotment. But in this case none of such document is produced. The contention of the appellant is that the disputed land was regularised by the concerned Tehsildar in the year 1971. Even if this plea of appellant-plaintiff is admitted for the sake of argument, a Tehsildar is not competent to regularise any piece of agricultural land under the Rajasthan Land Revenue (Allotment of Land For Agricultural Purposes) Rules 1970 (in short `the Rules of 1970') under which allotment/regularisation of the land is done by the Sub-Divisional Officer on recommendation of the Allotment Advisory Committee. Firstly there is no order of allotment or regularisation of the land by any authority; secondly presuming for the sake of argument that Tehsildar did allot/regularise, such an alleged act of Tehsildar would be patently beyond his jurisdiction and as such nullity in the eye of law. No right or interest would accrue on account of such purported act of regularisation done beyond his jurisdiction by a Tehsildar under the Rules of 1970. 8. A bare perusal of the revenue record like jamabandi Ex. P.8, Khasra girdawari Ex. P. 11 makes it abundantly clear that the disputed land is a pasture-land. Even khasra girdawari Svt. 2015-17 produced by the appellant before Revenue Appellate Authority shows that the disputed land is a government land (Bilanam) shown as Charnot (Pasture-land) in the record of khasra girdawari. Under Section 16 of the Act, khatedari rights do not accrue in pasture-land which is used for common public purpose as grazing ground for the cattle of the village. Under rule 4(1) of the Allotment Rules of 1970 the lands falling under section 16 of the Act are not available for the allotment or regularisation to anybody. Even if it is presumed that the appellant-plaintiff had been in possession on the disputed land, it would tantamount to possession by a trespasser on pasture-land which is neither available for allotment nor for regularisation; mere trespass on the disputed pasture-land does not make the appellant-plaintiff entitled for conferment of any khatedari right in respect of the disputed land. Even if it is presumed that the appellant-plaintiff had been in possession on the disputed land, it would tantamount to possession by a trespasser on pasture-land which is neither available for allotment nor for regularisation; mere trespass on the disputed pasture-land does not make the appellant-plaintiff entitled for conferment of any khatedari right in respect of the disputed land. The trial Court had framed two issues in this respect both of which are correctly decided against the appellant-plaintiff; the first appellate Court of Revenue Appellate Authority has concurred in the judgment of the trial Court. 9. In view of the foregoing discussion, when there is common inference of facts arrived at by both the lower courts, no interference can be made in such concurrent judgments of the courts below in the second appeal. As such the appeal is without any force. 10. Resultantly, the appeal is dismissed. Pronounced.