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2011 DIGILAW 728 (RAJ)

Hatim Ali v. Rama

2011-04-07

ARUN MISHRA, VINEET KOTHARI

body2011
Hon'ble MISHRA, CJ.—The appellants-writ petitioner approached this Court by filing writ petition being S.B.C.W.P. No. 669/2001 assailing the orders passed under Section 183-B of the Rajasthan Tenancy Act, 1955 (for short, hereinafter referred to as "Act of 1955") dated 6.12.1993 which order was assailed successfully before the Additional Collector by way of filing appeal and same was allowed. Against which the revision preferred by one Rama (deceased respondent No.1) before the Board of Revenue, was allowed vide order dated 31.12.1999. The review petition was also dismissed by the Board of Revenue on 4.9.2000. 2. Against the orders passed by the Board of Revenue and aggrieved by the order passed by the learned Single Judge dismissing the writ petition of the appellants, the intra-Court appeal has been preferred by the appellants. 3. Admittedly, 14 bighas and 10 biswas agricultural land was owned by Pyara, Rama, Khaima and Megha sons of Varda, and Rama and Ganga Ram sons of Nagji. They were members of Scheduled Caste community. In the year 1957, the land in question was purchased by the appellants. Thereafter on the basis of sale-deed, mutation No.11 was opened in their names. A reference was made to the Board of Revenue being Reference No. 61/1997, however, vide order dated 15.1.1982 the mutation No.11 was set aside by the Board of Revenue holding that alleged transfer was made in utter violation of Section 42 of the Act of 1955. Consequently, the mutation order was set aside. An application was filed under Section 183-B of the Act of 1955 on the ground that Ismile and Hatim Ali were not allowing them by use of force to plough the land. Prayer was made for restoration of the possession. The application was contested and aforesaid orders were passed and writ petition has been dismissed. 4. The stand of the appellants was that application itself was not maintainable which was filed beyond the period of limitation. The transaction was not violation of provisions of Section 42 of the Act of 1955. 5. Mr. B.R. Mehta, learned counsel for the appellants along with Mr. J.S. Rao, submitted that suit filed by the State was dismissed. In the matter of the mutation, question relating to title was not decided as such question of Section 42 of the Act of 1955 can be examined in the proceedings under Section 183-B of the Act of 1955. Mr. B.R. Mehta, learned counsel for the appellants along with Mr. J.S. Rao, submitted that suit filed by the State was dismissed. In the matter of the mutation, question relating to title was not decided as such question of Section 42 of the Act of 1955 can be examined in the proceedings under Section 183-B of the Act of 1955. Counsel has further submitted that when possession was not taken from the appellants for more than twelve years, therefore, right title and interest was accrued to the appellants in view of adverse possession. Consequently, the orders passed by the Board of Revenue and Single Bench deserve to be quashed; and the order passed by Additional Collector be restored. 6. Shri Sundeep Bhandawat, learned Government Counsel submitted that question as to violation of Section 42 of the Rajasthan Tenancy Act, 1955 has attained finality in the Reference Case No. 61/1977, which was decided by the Board of Revenue vide order dated 15.1.1982. Thus, it was not open for the appellants to take the said plea in the instant proceedings initiated under Section 183-B of the Act. So far as the plea taken with regard to adverse possession is concerned, learned Government Counsel submitted that the appellants have not raised such issue before the Revenue Courts, which now cannot be permitted to be agitated in the writ petition. No civil suit has been filed by the appellants so as to establish the title, if any. 7. After hearing learned counsel for the parties at length, we are of the opinion that there is no merit in the intra-Court appeal. So far as the first submission raised by the learned counsel for the appellants with regard to alleged violation of Section 42 of the Act of 1955 is concerned, we find submission to be unacceptable. Earlier, in the Reference Case No. 61/1977, the Board of Revenue has found that there was violation of Section 42 of the Act of 1955 alienation being in violation of provision was held to be void. Furthermore, the appellants are not the members of Scheduled Caste, whereas they purchased land from the members of Scheduled Caste which was not permissible. Earlier, in the Reference Case No. 61/1977, the Board of Revenue has found that there was violation of Section 42 of the Act of 1955 alienation being in violation of provision was held to be void. Furthermore, the appellants are not the members of Scheduled Caste, whereas they purchased land from the members of Scheduled Caste which was not permissible. Thus, the Board of Revenue has held that due to violation of Section 42, mutation could not have been ordered and they had no right, title or interest on the basis of sale-deed executed in their favour in the year 1957. The order has attained finality which was not challenged, thus, we are of the considered opinion that though in the mutation case question of title cannot be decided, however, it was not open in view of reference answered by the Board of Revenue to raise this question afresh on proceedings under the provisions of Section 183-B of the Act of 1955 before revenue Courts. 8. The finding of Board of Revenue was binding on the revenue Courts in the proceedings under Section 183-B of the Act of 1955 and no suit for claiming right, title or interest on the basis of adverse possession was filed by the appellants in the civil Court, thus, it cannot be said that order passed by the Board of Revenue and order passed by learned Single Judge dismissing the writ petition preferred by the appellants, suffer with any illegality. So far as question of adverse possession of the appellants is concerned, no such pleas was raised in the reply. Mere long possession does not confer any title as per settled preposition of law. 9. In view of above discussion, the orders passed by Board of Revenue and learned Single Judge do not require any interference in the intra-Court appeal, and, therefore, the present special appeal being bereft of merit fails and the same is hereby dismissed. No costs.