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2009 DIGILAW 1789 (RAJ)

Nathu Lal v. Kesri Lal

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 judgment and decree dated 3.8.04 of Revenue Appellate Authority Kota passed in appeal No. 76/02. 2. The factual matrix arising out of this case is that Tehsildar Keshoraipatan filed an application under Section 175 of the Act against the respondents on the ground that the co-tenants of the disputed land namely Devi Lal, Bhwana sons of Bhanwar Lal Balai who are from the category of scheduled caste sold the disputed land through registered sale deed to Kesri Lal, Nathu Lal, Giriraj, Babu Lal sons of Harishankar who are not members of the Scheduled Caste. The trial Court vide its judgment dated 29.6.1976 ousted transferees and transferors of the suit land and declared the land as Siwai Chak (Government Land) treating the said transaction violative of Section 42 of the Act. An appeal preferred against the judgment of the trial Court before Revenue Appellate Authority Kota was allowed by the Revenue Appellate Authority by the judgment dated 24.6.1978. The Revenue Appellate Authority remanded the case to Sub-Divisional Officer for re-trial. In the meantime, Collector Bundi made a reference to the Board of Revenue against the impugned judgment of Revenue Appellate Authority, which was allowed by the Board of Revenue vide its judgment dated 28.12.1988 and the matter was remanded to the Revenue Appellate Authority for re-hearing. Thereafter Revenue Appellate Authority Kota by his judgment dated 18.6.04 gave re-hearing and remanded the case to trial Court which by its judgment dated 5.12.02 decreed the suit ousting illegal vendors and vendees declaring the suit land as government land (Siwai Chak). Aggrieved against this judgment dated 5.12.02 of Sub-Divisional Officer Keshoraiptan an appeal was preferred before Revenue Appellate Authority Kota who by his judgment dated 3.8.04 dismissed the appeal and upheld the order of the trial Court. Hence the second appeal. 3. We have heard the learned counsels of both the parties. 4. The learned counsel for the appellant has contended that the appellant has purchased the disputed land as a result of which he has been in possession of this land since long and as such entitled to become khatedar by virtue of adverse possession. It is also contended that the application of Section 175 of the Act was not put up in proper form before the trial Court. It is also contended that the application of Section 175 of the Act was not put up in proper form before the trial Court. It is pleaded that a case under Section 183-B of the Act was decided in favour of the respondents No. 5 to 8 against which a revision is still pending consideration with the Board of Revenue. In such a situation the impugned judgment should not have been rendered at all in view of pending revision before the Board of Revenue. No copy of the registered sale deed is put up before the trial court Initially a case under Section 175 of the Act was registered as an application but on being contested this was changed into a suit; so it was necessary for the trial Court to frame issues before giving final judgment. But no issues have been framed in this case. As such the impugned judgment should be set aside. 5. Countering the contentions of the appellant, the learned Govt. Advocate pleaded that the disputed land was sold through a registered sale deed dated 26.4.1973 by a member of scheduled caste to a person who is not from scheduled caste in violation of the provisions of section 42 of the Act. As such lower courts have not committed any illegality in allowing the suit under Section 175 of the Act. It was also argued that to nullify the action taken under section 175 of the Act, a case under Section 183-B of the Act was filed between two private parties involving some of respondents, and got fraudulently decided during a revenue campaign. This is an attempt to defeat the purpose and provisions of Section 175 of the Act. In this case State was not a party as such it does not affect landholder through Tehsildar from taking any action under Section 175 of the Act. It is also significant to observe that proceedings of Section 175 of the Act have been challenged not by the person of scheduled caste who has sold the land but by a transferee of the transferees; as such this appeal is not maintainable. 6. We have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the record available on the file. 7. 6. We have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the record available on the file. 7. This is a matter involving illegal transfer of the disputed agriculture land belonging to persons of the Scheduled caste to persons who are not from the scheduled caste in contravention of Section 42 of the Act. The learned counsel for the appellant has contended that there is no sale deed proving the fact of the alleged transfer from scheduled caste persons to non-scheduled caste persons. This contention of the learned counsel for the appellant is untenable in view of the fact that a certified copy of the registered sale deed executed in respect of the disputed land is enclosed as Ex. 1 in the file of the trial Court. Perusal of this copy of the registered sale deed makes it abundantly clear that the suit land was transferred by Devi Lal and Bhwana Balai (respondents-defendants) to Kesri Lal, Babu Lal, Giri Raj sons of Harishankar (respondents) in lieu of Rs. 5500/- on 26.4.1973. This sale has further been corroborated by the oral evidence of the concerned Tehsildar. Evidently this sale and consequential transfer of land is in flagrant violation of Section 42of the Act. The contentions of the learned counsel for the appellant that the application under Section 175 of the Act was not put up properly in proper form is not tenable; there is no perceptible and legal defect in the application filed under Section 175 of the Act before the trial Court. Besides, this plea was not raised before the trial Court or before the first appellate Court. The contentions of the appellant that subsequent to conversion of the application to suit under Section 175 of the Act, the trial Court did not frame issues and as such the decree of the trial Court is illegal, is not tenable in view of the fact that a case under Section 175 of the Act has to be decided summarily within a period of three months. The only issue to be decided under Section 175 of the Act is whether any transfer of land has taken place in contravention of Section 42 of the Act or not; this has amply been proved and correctly decided by both the courts below. The only issue to be decided under Section 175 of the Act is whether any transfer of land has taken place in contravention of Section 42 of the Act or not; this has amply been proved and correctly decided by both the courts below. Additionally, according to Section 227 of the Act no decree or order should be reversed or modified for an error or irregularity which does not affect the merit of the case. Both the courts below in their concurrent judgments have given concurrent findings of facts about an illegal transfer of the disputed land in contravention of Section 42 of the Act. We do not find any reason to interfere in these concurrent inferences of both the courts below. 8. The contention of the appellant that under Section 173-B of the Act possession was given to the person of scheduled caste and as such the case under Section 175 of the Act is not maintainable, does not hold water; firstly a person of scheduled caste who allegedly was given possession of the disputed land has not gone in appeal against the judgment of the trial Court or Revenue Appellate Authority, secondly appellant is a transferee of the original transferees and as such does not become entitled to relief even if it is presumed for the sake of argument that a certain person of scheduled caste was restored possession on the land under Section 183-B of the Act; thirdly the alleged case under section 183-B of the Act was between two private parties in which neither the State Government nor Tehsildar as a landholder was impleaded. If this contention of the appellant is presumed to be admitted, it simply implies that proven offenders of Section 175 of the Act have abused the provisions of Section 183-B of the Act as a ruse to circumvent the provisions of Section 42 and frustrate the proceedings under Section 175 of the Act, which cannot be allowed. However, it is significant to observe here that a revision petition against the alleged impugned order under Section 183-B of the Act is still pending before The Board of Revenue according to both the parties. Be it so, we do not consider the said revision before this court against an order under Section 183-B of the Act as a bar on deciding this appeal which is against judgments passed under Section 175 of the Act. Be it so, we do not consider the said revision before this court against an order under Section 183-B of the Act as a bar on deciding this appeal which is against judgments passed under Section 175 of the Act. 9. In view of the foregoing discussion, there is no force in the appeal warranting any interference in the concurrent judgments of both the courts below. As such the appeal fails. 10. Resultantly the appeal is dismissed. Pronounced.