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2009 DIGILAW 293 (RAJ)

Sudarshan Kumar v. Laxminarain

2009-01-30

G.K.TIWARI, ROHIT KUMAR SINGH

body2009
Judgment SINGH, M.—This is second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the impugned judgment and decree dated 27.1.01 of Revenue Appellate Authority Kota by which he partially allowed the appeal filed before him against the order dated 18.7.2000 of Sub-Divisional Officer Chhabra (Baran). 2. Briefly stated, the facts leading to the appeal are that the appellant-plaintiff filed a suit against the respondents-defendants under sections 88, 89, 91, 188 and 92(A) of the Act before Sub-Divisional Officer Chhabra who dismissed the suit and directed Tehsildar Chhabra to take action under Section 42 of the Act vide his judgment dated 18.7.2000. Aggrieved against this judgment, the appellant-plaintiff preferred an appeal before Revenue Appellate Authority Kota who by his impugned judgment dated 27.1.01 partially allowed the appeal upholding the judgment dated 18.7.2000 of Sub-Divisional Officer but deleting at the same time the direction given by the trial Court to Tehsildar for proceedings under Section 175 of the Act. The appellant has preferred the instant second appeal before this Court against the impugned judgment dated 27.1.01 of Revenue Appellate Authority Kota. 3. We have heard the learned counsel for the rival parties. 4. The learned counsel for the appellant has argued that the respondents No. 1 and 2 have sold the disputed land to the appellant through a registered sale deed on 19.6.1969 and duly handed over the possession of the land; as such the respondents have lost any right and interest in the land sold by them and the appellant has become khatedar tenant as a bonafide purchaser of the land, although this transaction involves transfer of the land through sale by a khatedar tenant who is member of a scheduled caste to a person who is not a member of the scheduled caste, nonetheless this transaction is not hit by provisions of Section 42 of the Act in view of the fact that the plaintiff-appellant has become khatedar by efflux of time being in possession of the land since the year 1969. It was also argued that an earlier case filed by the respondents under Section 183-B of the Act was also dismissed being time barred on the point of limitation by Sub-Divisional Officer Chhabra. It was also argued that an earlier case filed by the respondents under Section 183-B of the Act was also dismissed being time barred on the point of limitation by Sub-Divisional Officer Chhabra. The appellant has also acquired khatedari right by virtue of adverse possession on the land as such judgments of both the lower courts on this count are not in accordance with the law. It is also argued that the suo moto direction given by trial Court for proceedings under section 175 of the Act is also unwarranted as period of limitation for taking action under Section 175 of the Act is time barred by now. The learned counsel cited 2006 RRT (1) 183, 2002(1) RLR 135 and 2002 RRT (1) 408. 5. Countering the contentions of the appellant, the learned Additional Government Advocate contended that the disputed land was sold by a scheduled caste khatedar tenant to a person who is not from the category of scheduled caste through a registered sale deed executed on 19.6.1969. This is clearly in violation of Section 42 of the Act and as such the transaction is void ab-initio. The appellant cannot acquire khatedari right on account of such an illegal sale. Citing 1994 RBJ 50 (HC) it was pleaded that there is no question of adverse possession on the land belonging to the scheduled caste khatedar tenant. It is also argued that the trial Court is within its competence and jurisdiction to direct Tehsildar for taking action under Section 175 of the Act in view of the gross violation of the provisions of section 42 of the Act. Revenue Appellate Authority erred in deleting this direction from the judgment of trial Court which should not be allowed by this Court. He pleaded to uphold the judgment of the Sub-Divisional Officer Chhabra. 6. We have given 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. 7. Admittedly, the respondents No. 1 and 2 are the khatedar tenants of the disputed land. This is also admitted fact that the disputed land was sold by respondents to the appellant in lieu of consideration of Rs. 2500/- through a registered sale deed executed on 23.6.1969 a copy of which is enclosed in the file of trial Court. 7. Admittedly, the respondents No. 1 and 2 are the khatedar tenants of the disputed land. This is also admitted fact that the disputed land was sold by respondents to the appellant in lieu of consideration of Rs. 2500/- through a registered sale deed executed on 23.6.1969 a copy of which is enclosed in the file of trial Court. This is also undisputed that the respondents No. 1 & 2 (vendors) are members of scheduled caste community whereas the appellant (vendee) is not a member from scheduled caste. Evidently such transaction is prohibited under Section 42 (B) of the Act and is void ab-initio. Neither any right or interest passes nor any khatedari right accrues pursuant to such illegal transaction which is expressly barred and prohibited under the Act. The appellant, therefore, does not become entitled to any khatedari right on account of such transfer of the land which is patently in violation of provision 42(B) of the Act. 8. The appellant has taken an alternative plea that he has acquired khatedari right on account of adverse possession on the land. On the one hand the appellant is claiming right on account of regular purchase through registered sale deed and possession on the land in pursuance thereof, i.e, through permissive possession, on the other hand the appellant is pleading adverse possession on the disputed land. Both these claims of permissive possession and adverse possession cannot go together hand in hand being mutually exclusive. In fact there cannot be adverse possession on the land belonging to a scheduled caste khatedar tenant. Hon'ble Rajasthan High Court in D.B.C. Writ petition No. 2321/82 Khumman Mal vs. Bheru as reported in 1994 RBJ 50 has clearly propounded that section 42 of the Act prohibits transfer of land by khatedar tenant belonging to scheduled caste to a person who does not belong to scheduled caste and the prohibition in this section is absolute. It is also held that section 88 of the Act clearly envisages that by adverse possession the trespasser acquires khatedari rights provided the acquisition of khatedari right is not specifically prohibited by law. In the case under consideration, the impugned transfer of land is clearly and absolutely prohibited under the law and as such no khatedari right can accrue on any ground of adverse possession on land belonging to scheduled caste khatedar. 9. In the case under consideration, the impugned transfer of land is clearly and absolutely prohibited under the law and as such no khatedari right can accrue on any ground of adverse possession on land belonging to scheduled caste khatedar. 9. The appellant has cited 2006 RRT (1) 183, 2002 RLR (1) 135 and 2002 RRT (1) 408 which are mainly in respect of taking action under section 175 of the Act but the appeal under consideration is not against any judgment passed under section 175 of the Act. In fact there never was or is any case so far under Section 175 of the Act. This appeal is against the judgment which is passed in suit under Sections 88, 89, 91, 188 and 92(A) of the Act. As such the facts of the citations quoted by the learned counsel are not applicable in this case. 10. Perusal of the order of Revenue Appellate Authority shows that although he has upheld the impugned judgment of Sub-Divisional Officer but deleted his direction given to Tehsildar for taking action under Section 175 of the Act on the ground that it was passed beyond the pleadings and beyond jurisdiction. We cannot land support to this view of Revenue Appellate Authority; passing a direction for taking action under Section 175 of the Act is not beyond jurisdiction of Sub-Divisional Officer as section 175 of the Act falls within the ambit of the jurisdiction of Sub-Divisional Officer. The plea that it is passed beyond pleadings is also not acceptable in view of the fact that when a transaction involving gross violation of law comes to the notice of the trial Court who is competent to deal with such matter, the court cannot shut its eyes to the act which is patently illegal and unlawful ab-initio. Thus trial Court neither committed any illegally nor jurisdictional error in giving direction to Tehsildar for taking action under Section 175 of the Act in the larger interest of justice. 11. In view of the aforesaid discussion there is no force in the appeal which is dismissed accordingly; simultaneously the judgment of Revenue Appellate Authority Kota pertaining to deletion of direction given by trial Court for proceeding under Section 175 of the Act is deleted and judgment dated 18.7.2000 of Sub-Divisional Officer Chhabara is upheld. Pronounced.