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2015 DIGILAW 1061 (RAJ)

Vidhyadhar Sunda v. State

2015-05-13

MOHAMMAD RAFIQ

body2015
Order 1. This writ petition has been filed by the petitioner Vidhyadhar Sunda, challenging two orders passed by the District Collector both dated 20.9.2000 (Annexure-8 and 11). By first order, Collector, Sikar has allowed the application filed by respondent nos.4 to 16 herein and made a reference to the Board of Revenue, Ajmer for setting aside judgment and decree dated 19.10.1981 passed in revenue suit no.274/1981 titled Vidhyadhar vs. Noparam & Ors. and cancelling the mutation no.258 and again recording the land in dispute in the khatedari of Noparam Nayak and Nolaram Balai, holding that mutation of the land of person belonging to Scheduled Caste was wrongly attested in favour of a person of general category in breach of Section 42(b) of Rajasthan Tenancy Act. By second order, Collector Sikar has allowed the application u/s.82 of the Rajasthan Land Revenue Act, 1956 filed by the State through Telsildar, Sikar for cancelling the mutation no.258 attested by Tehsildar, Sikar in respect of the land of Village Samarthpura and for recording the said lands again in the khatedari of Noparam Nayak and Nolaram Balai, members of the Scheduled Caste. The petitioner has also challenged the order of Board of Revenue dated 5.1.2001 (Annexure-13) whereby reference in both the aforesaid cases was accepted and the mutation no.258 attested in favour of the petitioner, referred to supra, was cancelled and the land in dispute was again ordered to be recorded in the khatedari of Noparam and Nolaram Balai. Prayer has also been made in the writ petition for restoring the judgment and decree dated 19.10.1981 passed by the SDO, Sikar in Suit No.274/1981. 2. According to the petitioner, the dispute pertains to the lands of khasra no.44/5 min measuring 11 bighas, which in the new settlement were recorded as khasra no.176 measuring 1.38 hectares, khasra no.178 measuring 1.08 hectares and khasra no.177 measuring 0.02 hectares in Village Samarathpura, Tehsil and District Sikar. The land comprising in old khasra no.44, Village Samarathpura, Tehsil and District Sikar measured 188 bigha and 13 biswas. It was originally recorded as siwai chak. Different parcels of lands were regularised in favour of several landless persons under different orders passed by Collector, Sikar. 11 bighas out of the said land recorded in khasra no.44/5 min was regularised in favour of Noparam Nayak, a member of Scheduled Caste. It was originally recorded as siwai chak. Different parcels of lands were regularised in favour of several landless persons under different orders passed by Collector, Sikar. 11 bighas out of the said land recorded in khasra no.44/5 min was regularised in favour of Noparam Nayak, a member of Scheduled Caste. 6 bighas out of that very khasra was regularised in favour of Toda, Mala and Goru, each having 2 bighas of land, whose L.Rs. are now respondent nos.4 to 16 herein. Petitioner claims to be in possession of half land of khasra no.44/5 min, measuring 2 bighas and 10 biswas. He asserts that he has constructed two rooms, kitchen, veranda and cattle shed in the area of 500 sq. mtrs thereof, towards south of new khasra no.178. He has also constructed a well in the same land and is having electricity connection. It is alleged that Noparam Nayak after regularisation of 11 bighas of land comprising in khasra no.44/5 in his favour, sold 5 bighas and 10 biswas out of that land of khasra no.178 vide registered sale deed dated 7.2.1978 to respondent Nolaram Balai. In the remaining half, Noparam Nayak has constructed his own house and the houses of relatives, which fell in khasra no.175. Their interest in the half land now in the present writ petition, is being represented by respondent nos.17 to 29. 3. Petitioner-Vidhyadhar Sunda filed a suit for declaration, perpetual injunction and correction of entries in the Court of SDO, Sikar impleading deceased Noparam Nayak, Nolaram Balai and the Government of Rajasthan through Telsildar, as defendants. He pleaded that no part of land of his possession, had ever remained in possession of the deceased Noparam and that deceased Noparam had nothing to do with 5 bighas and 10 biswas of lands, possessed by the petitioner. Although Noparam Nayak was in occupation of the land comprised in khasra no.175 and 178 only, the Settlement Department has wrongly entered the land of khasra no.176 in the name of deceased Noparam in place of khasra no.175. According to petitioner, Noparam Nayak and Nolaram Balai, both filed their written statement admitting the averments made in the plaint by the petitioner, but despite service of notice, no one appeared on behalf of State. Statements of petitioner himself as plaintiff and deceased Noparam as defendant, were recorded in the suit. According to petitioner, Noparam Nayak and Nolaram Balai, both filed their written statement admitting the averments made in the plaint by the petitioner, but despite service of notice, no one appeared on behalf of State. Statements of petitioner himself as plaintiff and deceased Noparam as defendant, were recorded in the suit. The Sub-Divisional Officer, Sikar vide judgment dated 19.10.1981 decreed the suit in favour of petitioner. Deceased Noparam even filed appeal against the aforesaid judgment and decree before the Revenue Appellate Authority, Sikar, which was dismissed as barred by limitation vide judgment dated 10.12.1991. Noparam Nayak then filed second appeal before the Board of Revenue, Rajasthan at Ajmer, which too was withdrawn by his successors-respondent nos.17 to 30 and was accordingly dismissed vide judgment dated 4.10.1993. It was thereafter that the respondents Toda, Mala and Goru filed a suit for declaration and perpetual injunction against deceased Nolaram and Noparam and their legal heirs in the Court of SDO, Sikar on 26.8.1991 regarding the land comprised in khasra no.176 situated in village Samarathpura. The said suit is stated to be still pending. Simultaneously, the respondent Toda, Mala and Goru submitted an application under Section 232 of the Rajasthan Tenancy Act, 1955 on 14.10.1991. In that proceeding, the Telsildar, Sikar submitted report before the Collector on 19.12.1996 for cancellation of mutation, which ultimately culminated in the order of making reference to the Board of Revenue and the Board accepted the reference by the impugned judgment. 4. Shri Sanjay Mehrishi, learned counsel for the petitioner has argued that the order making reference passed by District Collector, Sikar and the judgment passed by the Board of Revenue on that basis, are illegal and without authority of law. SDO, Sikar passed the judgment and decree as far back as on 19.10.1981, whereas the reference order has been passed by Collector with enormous delay of 19 years on 20.9.2000. The Board of Revenue has therefore erred in law in accepting such a belated reference. Even if no limitation has been prescribed for making of reference, the Collector could make the order of reference only within reasonable time and the Board of Revenue could also have accepted the reference only if it is made within the reasonable time and not with such enormous delay. Even if no limitation has been prescribed for making of reference, the Collector could make the order of reference only within reasonable time and the Board of Revenue could also have accepted the reference only if it is made within the reasonable time and not with such enormous delay. When the remedy of regular suit was availed by Toda, Mala and Goru, they were debarred from filing the application under Section 232 of the Act. Reliance in support of this argument is placed on the judgment in Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat- AIR 1970 SC 1 . Learned counsel for the petitioner has also relied on the judgment of Full Bench of this Court in Chiman Singh vs. State of Rajasthan-2000 (2) WLC (Raj.) page 1, judgment of Supreme Court in Ram Karan (Dead) through L.Rs. & Ors. vs. State of Rajasthan & Ors.- AIR 2014 SC 3070 , State of Punjab & Ors. vs. Bhatinda District Cooperative Milk P. Union Ltd.-AIR 2007 (SC) Suppl. 473. Reliance for the same purpose is also placed on the judgments of this Court in State of Rajasthan vs. Teja & Ors.-2005 (1) DNJ 2005 page 162, Hanja Ram & Ors. vs. State & Ors.-2007(1) RRT 39, State of Rajasthan vs. Raj Gajendra Singh through L.Rs. & Ors.-2006 (1) DNJ (Raj.) 142, Sunehari & Ors. vs. State & Ors.-2010(1) RRT 577 and Hari Ram & Anr. vs. State & Ors.-RRD 1996 page 538. 5. Shri Sanjay Mehrishi, learned counsel for the petitioner has argued that powers under Section 232 of the Rajasthan Tenancy Act, 1955 and Section 82 of the Rajasthan Land Revenue Act are extraordinary powers, which can be exercised by the Board of Revenue only in exceptional circumstances with due caution. Such powers cannot be exercised for settling personal scores. Learned Board of Revenue has arbitrarily entertained application on 14.10.1991 submitted by Toda, Mala and Goru who have unnecessarily dragged the petitioners in meaningless litigation. They are neither members of Scheduled Caste, nor Scheduled Tribe, nor are they in any way related to deceased Noparam and Nolaram. They did not have any locus to file application u/s.232. Order of reference passed by the District Collector on their application was incompetent and without jurisdiction. They are neither members of Scheduled Caste, nor Scheduled Tribe, nor are they in any way related to deceased Noparam and Nolaram. They did not have any locus to file application u/s.232. Order of reference passed by the District Collector on their application was incompetent and without jurisdiction. While on the one hand, they have filed revenue suit before the SDO, Sikar against the petitioner and deceased Noparam and the legal heirs of Nolaram, seeking declaration of their khatedari rights in the land comprised in khasra no.176 measuring 1.38 hectares and for deleting name of defendants from the khatedari of khasra nos.176, 177 and 178, on the other hand, they have field application under Section 232 of the Act seeking reference and prayed for cancellation of the judgment and decree dated 19.10.1981. Their application u/s.232 ought not to have been entertained because they had already in so far as this grievance is concerned, filed a revenue suit. 6. Learned counsel for the petitioner argued that the Board of Revenue has erred in law in holding that the decree dated 19.10.1981 has been passed in violation of the provisions of Section 42 of the Rajasthan Tenancy Act. Section 42 prohibits transfer of agricultural land by members of Scheduled Caste and Scheduled Tribe in favour of non-Scheduled Caste and Scheduled Tribe persons only by sale, gift or bequest, none of which was done in the present case. Provisions of Section 42, therefore, could not be invoked in a case where rights have been determined in a declaratory suit, as held by this court in Lad Bai & Ors. vs. Board of Revenue-1999 DNJ (Raj) 761. It is argued that the Board of Revenue has completely lost sight of the fact that Section 42 of the Tenancy Act does not operate as a bar in filing a suit by a member of non-Scheduled Caste or Non- Scheduled Tribe against a member of Scheduled Caste and Scheduled Tribe, for declaration of his rights in the land, which had already existed prior to the entry of the said land in favour of the members of the Scheduled Caste or Scheduled Tribe. The said provision does not restrict the power of the Court to grant declaration in favour of such persons. There was thus no illegality in the judgment and decree dated 19.10.1981. 7. The said provision does not restrict the power of the Court to grant declaration in favour of such persons. There was thus no illegality in the judgment and decree dated 19.10.1981. 7. It is argued that State Government, despite being a party, did not contest the suit no.274/81, in which judgment and decree was passed on 19.10.1981, on the basis of pleadings of the parties and the statement made by petitioner and Noparam on oath. The entries existing in favour of Noparam and Nolaram Balai had rightly been ordered to be corrected. The aforesaid judgment and decree has rightly been upheld by the Revenue Appellate Authority and the Board of Revenue. Reliance in support of this argument is placed on judgment of the Supreme Court in Kunhayammed & Ors. vs. State of Kerala & Anr.- (2000) 6 SCC 359 . It is argued that by virtue of doctrine of merger, the judgment passed by the SDO, merged into the judgments of Revenue Appellate Authority and the Board of Revenue. Since those judgments have attained finality, having not been challenged by any of the parties any further, the matter cannot be reopened. Reliance in this connection is placed on the judgment of Supreme Court in Kunhayammed & Ors. vs. State of Kerala & Anr.- 2000 (6) SCC page 359. It is argued that when Noparam and Nolaram Balai admitted claim of the petitioner on the basis of his old and long possession in the disputed land, their legal heirs are estopped from questioning the same. The Board of Revenue has arbitrarily set aside the judgment and decree dated 19.10.1981 on assumptions, which are wholly unfounded. Making of reference by Collector, Sikar on such facts amounts to gross abuse of the process of the Court. 8. Learned counsel for the petitioner submitted that the respondent Toda, Mala and Goru, in para 9 and 13 of their application under Section 232 of the Tenancy Act before the Collector, Sikar, had maintained that deceased Noparam was residing on the lands of khasra nos.175 and that he only had five and half bighas of land in old khasra no.44/5, which was sold by registered sale deed dated 7.2.1978 in favour of deceased Nolaram. These averments are in conformity with the findings recorded in judgment and decree dated 19.10.1981 by SDO. The Board of Revenue has completely overlooked this aspect while setting aside the same. These averments are in conformity with the findings recorded in judgment and decree dated 19.10.1981 by SDO. The Board of Revenue has completely overlooked this aspect while setting aside the same. It is argued that the deceased Noparam had sold 5 bighas and 10 biswas of lands by executing registered sale deed dated 7.2.1998 in favour of deceased Nolaram and remaining part of the land of khasra no.175 measuring 5 bighas and 10 biswas continued to be in possession of the deceased Noparam and his successors. Thus, entire 11 bighas of land is proved to be in possession of Noparam and his successors. They have got nothing to do with the lands in possession of the petitioner. It is settled law that a party cannot be allowed to withdraw the admissions made by him in the written statement through amendment application. Reliance in this connection is placed on the judgment in Heeralal vs. Kalyan Mal & Ors.-AIR 1998 page 618 and Modi Spinning and Weaving Mills Co. Ltd. vs. Ladha Ram & Co.-AIR 1977 680. 9. Learned counsel submitted that the deceased Nolaram had bequeathed the lands comprised in khasra no.178 of Village Samarathpura on 17.11.1980 in favour of Goru Ram (who is different person than respondent- Goru) and Goru Ram in turn sold the said land vide registered sale deed to respondent no.35-Chiranji herein, who continues to retain the possession of the same. Relying on the judgment of division bench in Babu Singh vs. State of Rajasthan-AIR 2002 page 92, learned counsel argued that the rights of even a khatedar-tenant belonging to Scheduled Caste or Scheduled Tribe, would get extinguished under Section 63(1)(iv) of the Rajasthan Tenancy Act if he has abandoned the khatedari land and does not remain in possession of the same. His rights to recover the possession is also barred by limitation. Since Noparam has been out of possession from the disputed land for last more than 12 years, he thereby forfeited his right to remain khatedar of the land. 10. His rights to recover the possession is also barred by limitation. Since Noparam has been out of possession from the disputed land for last more than 12 years, he thereby forfeited his right to remain khatedar of the land. 10. Shri Dharmendra Pareek, learned Additional Government Counsel, appearing for the State, has submitted that the judgment and decree dated 19.10.1981 has rightly been set aside and the mutation attested in favour of the petitioner has rightly been ordered to be cancelled, by the Board of Revenue in reference proceedings because petitioner got the suit decreed in his favour in a collusive manner by playing fraud upon the court. He nowhere disclosed as to from where, he acquired the right and the title of the land on which he claimed to have raised construction of the house and about which, he got the declaration in his favour. The land measuring 11 bigha situated in khasra no.44 min was allotted to Noparam, a member of Scheduled Caste on 4.6.1970, taking him to be a landless person of Scheduled Caste category. Mutation no.113 was attested in his favour. Out of said land, Noparam sold half i.e. 5.5. bigha to Nolaram, also member of Scheduled Caste category, by registered sale deed dated 7.2.1978. It was thereafter that the petitioner has filed suit for declaration and permanent injunction, which was decreed by SDO, Sikar vide judgment and decree dated 19.10.1981. The Revenue Appellate Authority dismissed the revision petition being time barred and the appeal before the Board of Revenue was withdrawn. There was thus no question of merger of the judgment of SDO as none of the appellate courts have examined the matter on merits. 11. Shri Dharmendra Pareek, learned Additional Government Counsel argued that judgment and decree dated 19.10.1981 has been obtained by the petitioner on the basis of concealment and suppression of facts, without disclosing complete facts. Petitioner did not disclose how he came in possession of the land belonging to member of reserved category. No mutation of the land of Scheduled Caste and Scheduled Tribe person can be attested in favour of non-Scheduled Caste or non-Scheduled Tribe person merely on the basis of possession. Doing so is completely prohibited by Section 42 of the Rajasthan Tenancy Act. No mutation of the land of Scheduled Caste and Scheduled Tribe person can be attested in favour of non-Scheduled Caste or non-Scheduled Tribe person merely on the basis of possession. Doing so is completely prohibited by Section 42 of the Rajasthan Tenancy Act. Such mutation cannot be attested even on the basis of decree of the revenue court because such a course is also barred by the provisions of Section 42 of the Rajasthan Tenancy Act, which is a special provision made in favour of the persons belonging to reserved category for protecting their interest. Such a decree, even if passed, would be nullity. The land on which possession is claimed by the petitioner is half of the land, which was originally allotted to the Noparam. This land actually was sold by Noparam to Nolaram, another person belonging to Scheduled Caste. Mutation in favour of petitioner, who is a member of non-reserved category is thus void and has rightly been ordered to be cancelled by the Board of Revenue in the reference proceedings. It is argued that the sale deed exhibited by Noparam in favour of Nolaram is on record and that the petitioner neither in suit, nor otherwise made any prayer for cancellation of the sale deed. Petitioner is claiming right on the basis of prolonged possession of the land, which already stands allotted to a member of reserved category. The order passed by the Board of Revenue is perfectly just and legal. The writ petition deserves to be dismissed. 12. Shri Raj Kamal Gaur, learned counsel appearing for respondent no.4 to 16, who are L.Rs. of the Toda, Mala and Goru, submitted that their predecessor in interest Toda, Mala and Goru, were in possession of 6 bighas of land comprised in khasra no.44, which was a big khasra of about 185 bighas. They were in possession of the land since the time of their forefathers. Two bighas each was regularised in their favour by the order of the competent authority vide communication Annexure-R- 4/2 in which their names appeared at S.No.9, 10 and 11, thus they were in possession of 6 bighas of land. Their lands were collectively numbered as khasra no.44/1. Mutation no.215, 216 and 217 was attested in their favour, documents of which are on record at Annexure-R- 4/3 and 4/4 and 4/5. Their lands were collectively numbered as khasra no.44/1. Mutation no.215, 216 and 217 was attested in their favour, documents of which are on record at Annexure-R- 4/3 and 4/4 and 4/5. Learned counsel submitted that in jamabandi of Samvat year 2032-35, (Annexure-R-4/6) a note was made at S.No.9, 10 and 11, that mutation no.215, 216 and 217 was attested in favour of Toda, Mala and Goru in view of the regularisation order passed in their favour. Still in the settlement proceedings which took place soon thereafter, the above mutation was not implemented in revenue record. Thus, the names of Toda, Mala and Goru were wrongly omitted from the subsequent revenue records. Possession of deceased Noparam Nayak, the predecessor in interest of the respondent nos.17 to 30 was also regularised on 11 bighas of land in khasra no.44, which was situated at two different place in the form of two plots of 5 bighas and 10 biswas each. Noparam Nayak sold 5 bighas and 10 biswas of land to Nolaram Balai, predecessor in interest of the respondent nos.31 to 34 herein, vide registered sale deed dated 7.2.1978. In remaining 5 bighas and 10 biswas of land, Noparam and his sons had constructed their houses, cattle shed and `bara' etc. The respondent nos.17 to 30 are still in possession of the remaining 5 bighas and 10 biswas of land. Since the above referred to 11 bighas land regularised in favour of Noparam was situated at two different places, it could not be given one khasra number. In the sale deed dated 7.2.1978, the land sold to Nolaram was wrongly and fraudulently shown as half share of khasra no.44/5, whereas this khasra no.44/5 was never demarcated in 'sazra' shown in any other revenue record. The sale deed dated 7.2.1978 has also been signed by present petitioner-Vidhyadhar Sunda as a witness. Description of boundaries of the land sold was given therein and towards south of the land sold, the land of Ladu Mali, father of Toda, Mala and Goru has been shown, which means that the land of Toda, Mala and Goru existed towards south of the land, which was sold by Noparam Nayak to Nolaram Balai. Description of boundaries of the land sold was given therein and towards south of the land sold, the land of Ladu Mali, father of Toda, Mala and Goru has been shown, which means that the land of Toda, Mala and Goru existed towards south of the land, which was sold by Noparam Nayak to Nolaram Balai. It was during settlement proceedings that new khasra nos.177 and 178 were created with regard to 5 bighas and 10 biswas of land of khasra no.44 sold by Noparam Nayak to Nolaram Balai and new khasra no.176 was created towards south of these new khasras, where the land of Toda, Mala and Goru was situated. In the new settlement proceedings, this khasra no.176 should have been entered in the name of Toda, Mala and Goru. It is submitted that remaining 5 bighas and 10 biswas of land of Noparam in which his sons/legal heirs had developed their `dhani' and constructed their house, cattle shed, `bara' etc. is situated in new khasra no.175. This khasra no.175 was wrongly shown as siwai chak by the settlement authorities, whereas it should have been recorded in the khatedari of Noparam. Instead, the settlement authorities wrongly showed the land of khasra no.176 with khasra no.175 and 178 in the khatedari of Noparam and Nolaram and they were shown khatedars of one half share. 13. Shri Raj Kumar Gaur, learned counsel submits that no land was shown in the khatedari of Toda, Mala and Goru by the settlement authorities, whereas Noparam had 11 bighas of land, which was regularised in his favour in the form of khasra no.176, 177 and 178, including 5 bighas and 10 biswas of land for his `dhani'/house in the form of khasra no.175. Thus, Toda, Mala and Goru were completely deprived of their 6 bighas of land wherefor regularisation order is available on record and also the mutation attested in favour of each of them is available on record. In fact, Noparam was having only 5 bighas and 10 biswas of land, which he had already transferred in favour of Noparam and as such no land of Nolaram remained in khasra no.176, 177 and 178. In fact, Noparam was having only 5 bighas and 10 biswas of land, which he had already transferred in favour of Noparam and as such no land of Nolaram remained in khasra no.176, 177 and 178. Taking advantage of all these facts, petitioner-Vidhyadhar Sunda filed a revenue suit no.274/1981 for declaration against Noparam and Nolaram with regard to half share of 11 bighas of land and vide judgment dated 19.10.1981 got the mutation no.258 sanctioned in his favour. Although, petitioner- Vidhyadhar Sunda claimed khatedari rights in the lands of Noparam, but effect of the above referred to judgment and decree dated 19.10.1981 is that petitioner-Vidhyadhar Sunda was declared khatedar of the land, which ought to have been recorded in the khatedari of Toda, Mala and Goru. What is therefore argued is that the land of Toda, Mala and Goru comprised in khasra no.176 came to be wrongly recorded in the name of Nolaram and petitioner-Vidhyadhar Sunda in equal shares. Toda, Mala and Goru, therefore filed a revenue suit on 26.8.1991 for declaration of their rights in the Court of SDO, Sikar against the petitioner and others praying that they be declared khatedar-tenant of the land comprised in khasra no.176. The said suit is still pending, but the file of the said suit is missing since long. It is argued that petitioner is a practicing advocate at Sikar and due to his influence, no steps have been taken to reconstitute the file. Resultantly, the legal heirs of Toda, Mala and Goru have not been able to get their land till today. Prayer is made that this Court while deciding the present writ petition may make it clear that this judgment will not affect the outcome of the revenue suit filed by Toda, Mala and Goru and the SDO, Sikar may be directed to re-constitute the said file with immediate effect with further direction to decide the suit within fixed time frame. 14. Shri R.P. Singh, learned senior counsel appearing for the respondent nos.17 to 29 argued that while petitioner filed suit no.274/81 for declaration, permanent injunction and correction in the entries in revenue records u/s.88 and 188 of the Tenancy Act and Section 136 of the Land Revenue Act, 1956 against Noparam and Nolaram as defendants with regard to half of the land of khasra no.44/5 min, but, in fact, no khasra numbers in particular were mentioned. Petitioner prayed for such declaration and injunction on the premise that half of the share of 11 bigha in khasra no.44/5 was in his actual cultivation and possession and the defendant-Noparam was having his house/dhani in the remaining half. According to the pleadings set up by the petitioner, Noparam, defendant no.1 never sold his land to defendant no.2 Nolaram and Nolaram never acquired possession of the disputed land. It is argued that entire file of the revenue suit in which judgment and decree dated 19.10.1981 was passed, was missing and in that respect, FIR No.36/1993 dated 30.1.1993 was lodged at Police Station Kotwali, Sikar by the Reader of the Collector, Sikar against the petitioner alleging that petitioner had taken documents from file even on earlier occasion during the time of former Reader Mukundpal Singh, although eventually, the final report has been submitted by the police in that case. Apparently, a consent reply was got filed from the defendants through their power of attorney in the suit on which basis, petitioner was declared khatedar of the half share of 11 bighas of land in khasra no.44/5 min by judgment dated 19.10.1981. 15. Learned senior counsel submitted that contrary to what has been pleaded by the petitioner in the aforesaid revenue suit, his pleadings in para 5 of the present writ petition are that deceased-Noparam sold 5 and half bighas of land of his khatedari comprised in khasra no.177 and 178 in favour of Nolaram vide registered sale deed dated 7.2.1978 and transferred possession of the same in favour of the purchaser and Nolaram thereafter executed the Will on 17.11.1980 in favour of Goru Ram S/o Nola Ram Balai. Mutation no.103 dated 16.1.1996 was got attested on that basis in favour of Goru Ram. Will was a forged document, which is evident from the affidavit of Goru Ram himself filed before the Collector, Sikar Annexure-R/4/7 in the appeal filed against such mutation by his brother Hanuman. He has alleged on oath that petitioner CW Vidhyadhar Sunda has by misleading that he would get the entire land recorded in his name obtained his thumb impression on blank papers. Petitioner-Vidhyadhar Sunda told him that he has prepared a Will dated 17.10.1981 in his favour and on that basis he (Goruram) has become sole owner of the disputed land and would retain the possession. Petitioner-Vidhyadhar Sunda told him that he has prepared a Will dated 17.10.1981 in his favour and on that basis he (Goruram) has become sole owner of the disputed land and would retain the possession. Neither he had seen the Will, nor his father executed any such Will in his favour. The Will was a forged document. It is argued that, in fact, petitioner-Vidhyadhar Sunda has made a false averment in the plaint that Noparam never executed any sale deed in favour of Nolaram, whereas the fact is that the petitioner Vidhyadhar himself is a witness to the sale deed dated 7.2.1978. He in para 3 of the reply to the reference application filed by Toda, Mala and Goru stated that Nolaram received possession of one half portion of 11 bighas of khasra no.44/5 min through registered sale deed dated 7.2.1978. Petitioner- Vidhyadhar Sunda admits to be a witness of the agreement to sale by Noparam in favour of Nolaram in para 3 of the rejoinder filed in the present writ petition. Learned senior counsel submitted that Toda, Mala and Goru filed a suit no.316/91 u/s.88 and 188 of the Tenancy Act, 1955 read with Section 136 of the Land Revenue Act, 1956 against petitioner-Vidhyadhar, Noparam and Nolaram. Similarly, an application was made by Toda, Mala and Goru for making reference to the Board of Revenue for cancellation of mutation no.258. 16. It is submitted that petitioner-Vidhyadhar Sunda took various steps to ostensibly give a legal shape to the fraudulent legal proceedings. He got the written statement in the revenue suit filed by him, through power of attorney of Noparam and Noraram and got a collusive decree passed. He orchestrated a forged Will from Nolaram in favour of his son Goru Ram. Mutation no.103 was got attested on 16.1.1996 in the name of Goru Ram S/o Nolaram ostensibly based on such Will by Nolaram by which he bequeathed his entire land to Goru Ram. An appeal was filed by Hanuman, another son of Nolaram before the Collector challenging the Mutation no.103 in favour of Goru Ram S/o Nolaram on the basis of forged Will dated 17.11.1980. In that appeal, Hanuman submitted his affidavit Annexure-R/4-7 denying the execution of the Will by Nolaram in his favour. The appeal was dismissed as abated because on the death of Hanuman, his L.Rs. were not brought on record. In that appeal, Hanuman submitted his affidavit Annexure-R/4-7 denying the execution of the Will by Nolaram in his favour. The appeal was dismissed as abated because on the death of Hanuman, his L.Rs. were not brought on record. Petitioner also got a first appeal no.59/91 allegedly filed by Noparam, with enormous delay of ten years, against the decree dated 19.10.1981 before the Revenue Appellate Authority. The appeal was dismissed on the ground of limitation. Filing of this appeal was a fraud committed by the petitioner, which is evident from the observations made by the Revenue Appellate Authority in its judgment dated 10.12.1991 that the appeal has been filed on the basis of photo copy of the certified copy, which is not attested. This certified copy of which photo copy has been produced, was obtained by petitioner-Vidhyadhar Sunda on 27.1.1983. The petitioner did not stop at that only, he, in fact, got a second appeal filed before the Board of Revenue through the L.Rs. of Noparam, which was ostensibly shown withdrawn by the L.Rs. of Noparam and was dismissed accordingly. 17. Shri R.P. Singh, learned senior counsel submits that petitioner-Vidhyadhar Sunda and L.Rs. of Nolaram including Goru Ram filed a common written statement in the suit no.316/91 filed by Goru, Mala and Toda before SDO, Sikar in which he admitted that the land allotted to Noparam was not in khasra no.44/1 but was part of khasra no.44/5. In para 5 thereof, petitioner admits that the land was allotted to the Noparam in 1970 from khasra no.44 measuring 11 bigha, which was numbered as khasra no.44/5 and mutation no.113 dated 8.7.1970 in favour of defendant no.1-Noparam was attested and that the land allotted to Noparam was not in two parts but adjunct. In para 5, petitioner further states that the new settlement numbers of khasra no.44/5 are khasra no.176, 177 and 178. In last line of para 5 of the reply, it is stated that khasra no.175 is siwai chak land, which is actually correct and this fact is borne out by the revenue records. This very fact is repeated in para 6. Factum of sale of half of the land of khasra no.44/5 in favour of Nolaram on 7.2.1978 by registered sale deed is admitted. In para 9 petitioner claims joint possession over lands of khasra nos.176, 177 and 178 along with L.Rs. This very fact is repeated in para 6. Factum of sale of half of the land of khasra no.44/5 in favour of Nolaram on 7.2.1978 by registered sale deed is admitted. In para 9 petitioner claims joint possession over lands of khasra nos.176, 177 and 178 along with L.Rs. of Nolaram and more specifically Goru Ram, in whose favour Nolaram ostensibly executed a Will. On the strength of forged Will, the entire land of Nolaram came to the share of his son Goru Ram, which was challenged by the other L.Rs. of Nolaram. 18. Argument of Shri R.P. Singh, learned senior counsel is that the entire sequence of events would show that petitioner-Vidhyadhar Sunda, has abused the process of Courts throughout. He was instrumental in obtaining consent decree dated 19.10.1981 from SDO, Sikar by submitting wrong facts, which were contradicted by petitioner himself in later proceedings. The consent decree further raises suspicion. The decree, in any case, was contrary to Section 42 of the Act of 1955. The legal maxim “which was originally void does not by lapse of time become valid” is applicable in this case. Petitioner tried to create confusion between khasra no.175 and 176, whereas even by the documents submitted by the petitioner himself, it becomes clear that khasra no.44/5 was newly numbered as khasra no.176, 177 and 178. Affidavit of Goru Ram (Annexure-R/4/7) is truly revealing of the nature of this litigation. A forged Will was prepared, which was allegedly executed by Nolaram in favour of his son Goru Ram. In fact, petitioner has further got a sale deed based on the forged Will allegedly on behalf of Goru Ram in favour of Chiranji Lal (respondent no.35) thereby creating third party interest to further create hurdles in the implementation of the process of law and restoration of the possession of the land. It is argued that where a threat of fraud conspicuously pervades through the entire proceedings, this brings huge disrepute to the system. In such case, the Court should not allow itself to be deflected by red herrings drawn across the track. It has to pass such orders as the circumstances warrant, of course within the four corners of law, to secure the interest of justice and to appease its judicial conscience. In such case, the Court should not allow itself to be deflected by red herrings drawn across the track. It has to pass such orders as the circumstances warrant, of course within the four corners of law, to secure the interest of justice and to appease its judicial conscience. Reliance in this connection is place on the judgment of Supreme Court in Delhi Development Authority vs. Skipper Construction & Anr.-(2007) 15 SCC 601. 19. It is argued that if a judgment is obtained by playing fraud, the same is nullity, annulment of which would not even require adherence to principles of natural justice. Reliance in this connection is placed on the judgments in Ganpatbhai Mahijibhai Solanki vs. State of Gujarat & Ors.- (2008) 12 SCC 353 , Jai Narain Parasrampuria (Dead) & Anr. vs. Pushpa Devi Saraf & Ors.- (2006) 7 SCC 756 , Hamza Haji vs. State of Kerala & Anr.-(2006) 7 SCC 416, A.V. Papayya Sastry & Ors. vs. Government of A.P. & Ors.- (2007) 4 SCC 221 , Santosh vs. Jagat Ram & Anr.- (2010) 3 SCC 251 . 20. Learned senior counsel on the point of breach of Section 42 of the Rajasthan Tenancy Act has cited the judgment of Supreme Court in State of Rajasthan & Ors. vs. Aanjaney Organic Herbal Private Ltd.- (2012) 10 SCC 283 and has argued that in this case the Supreme Court has annulled the sale effected by a member of Scheduled Caste to a juristic person, which does not have a caste. It is therefore prayed that the writ petition be dismissed. 21. Shri Ved Prakash, learned counsel appearing for respondent no.35-Chiranji Lal has submitted that his client is a bonafide purchaser of the half share of 11 bighas land originally regularised in favour of Noparam, which was sold to Nolaram. Nolaram had executed a Will in favour of his son Goru Ram and Goru Ram has sold the same to Chiranji Lal i.e. respondent no.35 by sale deed dated 18.10.2010. It is argued that the sale of the land by Noparam in favour of Nolaram was not hit by Section 42 of the Tenancy Act as both of them belonged to Scheduled Caste category. Chiranji Lal is a member of Scheduled Caste. Goru Ram, in whose favour the land was bequeathed by his father Nolaram by Will, also happened to be member of Scheduled Caste. Chiranji Lal is a member of Scheduled Caste. Goru Ram, in whose favour the land was bequeathed by his father Nolaram by Will, also happened to be member of Scheduled Caste. Thus sale of the land in question to Chiranji Lal by Goru Ram is also a regular sale. Chiranji Lal, is presently in possession of the land, which fact is not disputed by any other party and, therefore, his possession need be protected. It is argued that none of the legal heirs of Nolaram has come forward to question the correctness of Will executed by him in favour of Goru Ram or sale deed executed by Goru Ram in favour of Chiranji Lal and, therefore, whatever may be the judgment of this Court in the present writ petition, interest of Chiranji Lal should remain unaffected thereby. 22. I have given my anxious consideration to the rival submissions and perused the material on record. 23. Perusal of the judgment dated 19.10.1981 on the basis of which mutation no.258 was attested in favour of the petitioner and impugned judgment dated 20.9.2000 by which mutation has been set aside by the Board of Revenue on reference of Collector, indicates that the petitioner set up the case with respect to one half share of 11 bigha land of khasra no.44/5 claiming that this land was in two parts. Noparam was in possession of only one part of that land, having his houses constructed thereupon and remaining half is in his possession and cultivation. Petitioner further claimed that he has constructed a well about 15 years ago on that land and has also fixed pumping set and obtained the electricity connection. He claimed that his possession on half of the land measuring 11 bighas of khasra no.44/5 was 28-29 years old and that the defendant-Noparam was never in possession of the said land and that defendant Noparam has never sold that land to defendant no.2 Nolaram. Clearly, therefore, claim that was set up by the petitioner was in respect of one half of the land measuring 11 bigha of khasra no.44/5, which was allotted in favour of Noparam and mutation no.113 was attested in his favour by Tehsildar vide his order dated 4.6.1970. It is this half portion of land, which was sold by Noparam to Nolaram by registered sale deed dated 7.2.1978. Curiously, petitioner himself was the witness to the sale deed aforesaid. It is this half portion of land, which was sold by Noparam to Nolaram by registered sale deed dated 7.2.1978. Curiously, petitioner himself was the witness to the sale deed aforesaid. This sale was entered in the jamabandi of Samvat Year 2032-35 and mutation was attested in favour of Nolaram. The transaction goes on further with Nolaram shown to have executed a Will, which is highly disputed by his other legal heirs. One of them, Hanuman filed appeal before the Collector and Goru Ram, in whose favour the Will was allegedly executed, himself filed an affidavit before the Collector that such Will was forged and further a sale deed having been executed by Goru Ram in favour of Chiranji Lal-respondent no.35 herein and mutation no.165 was entered by Tehsildar in favour of Chiranji Lal. The factum of possession of Chiranji Lal has not been disputed by the petitioner or his counsel, who were present in the courts of hearing and has rather been admitted. In fact, the petitioner, who was present in Court, in the course of arguments, was more than eager to admit possession of respondent no.35-Chiranji Lal. All these facts explain why the petitioner has impleaded both Noparam and Nolaram as defendants in the suit and if one half of the land of khasra no.44/5 is already in possession of Noparam and his legal heirs, who have their houses, ‘dhanis’ and cattle shed etc. constructed on such house and the remaining half is in possession of Nolaram and through him, is ultimately in possession of Chiranji Lal, which land petitioner claims to be in his possession and what is his title to such land, is a significant question. Strangely enough, the petitioner even then in the aforesaid revenue suit has taken the plea that defendant no.1-Noparam never sold the land to defendant no.2-Nolaram and that defendant no.2 Nolaram was never in possession of the disputed land. The suit was decided ex-parte against the State, but according to the judgment, the defendant Noparam and Nolaram filed their consent written statement requesting to decree the suit. Plain and simple, it was nothing but a collusive suit. Had the suit been contested on the basis of bar of Section 42 of the Tenancy Act that no land of member of Scheduled Caste or Scheduled Tribe can be transferred to a non-member, the claim of the petitioner would have certainly been defeated. Plain and simple, it was nothing but a collusive suit. Had the suit been contested on the basis of bar of Section 42 of the Tenancy Act that no land of member of Scheduled Caste or Scheduled Tribe can be transferred to a non-member, the claim of the petitioner would have certainly been defeated. 24. Here comes the role of the respondents-Toda, Mala and Goru, who are now represented by their legal heirs respondents nos.4 to 16. According to their claims, each of them were allotted 2 bighas of land by way of regularisation vide order dated 24.10.1977, thus in total 66 bighas of land in khasra no.44/1 and mutation nos.215, 216 and 217, was attested in their favour. Regularisation made in favour of Noparam Nayak on 11 bighas of land was in khasra no.44, which was situated in two different parts in the form of two plots of 5 bighas and 10 biswas each. One of the parts was utilised by him and his family members by raising construction of dhani, house, cattle shed and `bara' etc. and another part was sold to Nolaram vide sale deed dated 7.2.1998. Their claim is that in this sale deed, half of the land of khasra no.44/5, which was demarcated was fraudulently shown in 'sazra' or shown in other revenue records. According to them, 5 bighas and 10 biswas of land of khasra no.44 was sold by Noparam to Nolaram. In the settlement proceedings, khasra no.44 was recorded as khasra no.177 and 178 and 6 bighas of land was recorded as new khasra no.176. On one half of the land, Noparam has raised construction of house, dhani, cattle shed etc. was recorded as new khasra no.175. This khasra no.175 has been wrongly shown as siwai chak. According to petitioner, one half of the share Noparam sold to Nolaram in the settlement proceedings of the year 1980 was recorded as khasra no.178. House, dhanis and cattle yards were actually constructed in the land of khasra no.175, which has wrongly been recorded as kharsa no.176. It is therefore that he had to file the suit no.274/1981 for declaration and perpetual injunction. No such case has been set up by the petitioner in the aforesaid suit. House, dhanis and cattle yards were actually constructed in the land of khasra no.175, which has wrongly been recorded as kharsa no.176. It is therefore that he had to file the suit no.274/1981 for declaration and perpetual injunction. No such case has been set up by the petitioner in the aforesaid suit. In fact, the respondent nos.4 to 16, who are now representing the interest of Toda, Mala and Goru, have maintained that during settlement proceedings, 5 bighas and 10 biswas of land of khasra no.44 sold by Noparam to Nolaram, came to be recorded as khasra no.177 and 178 and new khasra no.176 was created towards south of those khasras, where the land of Toda, Mala and Goru was situated. This land should have been recorded in their name and the land on which Noparam and his family has constructed the house, cattle shed etc. is situated in khasra no.175, which came to be wrongly shown as siwai chak and instead, the land of khasra no.176 was wrongly recorded in the name of Noparam and his family, whereas the land of khasra no.177 and 178 should have been recorded in the name of Noparam and through him, Nolaram. 25. Complaint of the successor-in-title of Toda, Mala and Goru in substance is that the land of khasra no.176, which ought to be recorded in the name of Toda, Mala and Goru, was wrongly recorded in the name of Nolaram and petitioner-Vidhyadhar Sunda in equal share. It is therefore that they had to file revenue suit, but the suit has not proceed further due to influence of the petitioner, who is a practicing lawyer, caused the case file to disappear, which fact is disputed by the petitioner-Vidhyadhar Sunda. According to him, the suit was not proceeded because certain revision petition out of the said suit is pending before the Board of Revenue. Respondent nos.17 to 29, however, agree with the petitioner to the extent that the land of khasra no.175 is actually a siwai chak land, but the petitioner has tried to create a confusion between khasra no.175 and 176, whereas according to the petitioner himself khasra no.44/5 was newly numbered as khasra nos.176, 177 and 178, which continues to exist as such on record. When the respondent nos.17 to 34 filed an amended reply to the writ petition contending that Tehsildar, Sikar vide order dated 4.6.1970 allotted 11 bighas of land to Noparam treating him to be a landless person of Scheduled Caste community and attested mutation no.113, the khasra no.44 min was indicated therein, which later became khasra no.44/5. And this khasra no.44/5 in the settlement proceedings, later became khasra no.176, 177 and 178. Petitioner has filed rejoinder to this reply to contend that by amendment in the originally filed reply, the respondents are trying to introduce new case, which they had accepted in para 2 of the original reply to the writ petition and now trying to come back to their previous admission that khasra no.44 min exist in two parts, out of which Noparam Nayak had settled in one part and that part is khasra no.44 min and could not be termed as khasra no.44/5. According to him, Toda, Mala and Goru were allotted the land out of khasra no.44/1, which has got nothing to do with the disputed land. In new settlement now their lands consist in khasra no.115 and 127 tan, which are situated much away from the disputed land on Sikar-Piparali Road, a fact, pleaded in para 2 of the rejoinder. In para 3 of the rejoinder, he pleaded that respondent nos.4 to 6 and their predecessor in interest are bound by the previous admission in the originally filed reply to the writ petition that Noparam Nayak and his family were inhabited on the land of khasra no.175 and that their land (Toda, Mala and Goru) was situated in khasra no.176. 26. Tremendous amount of confusion has thus been created by all the parties as to the exact number of land on which they are claiming right on the basis of possession or otherwise, but the fact nevertheless remain that the judgment dated 19.10.1981 resulted in a collusive decree being obtained against the State exparte. The learned counsel for respondent no.29 has denied in the course of arguments, the filing of written statement. In fact, his allegation has been that everything was arranged by the petitioner, who is a practicing advocate, in getting the written statement filed and that too through the power of attorney and thereafter causing original file to be misplaced. The learned counsel for respondent no.29 has denied in the course of arguments, the filing of written statement. In fact, his allegation has been that everything was arranged by the petitioner, who is a practicing advocate, in getting the written statement filed and that too through the power of attorney and thereafter causing original file to be misplaced. Even the FIR was registered against him in which it was alleged that earlier also, he stole certain documents from the court file. The FIR has resulted in negative final report, but the original file could still be not traced. In fact, learned counsel appearing for the respondent nos.4 to 16, who were the legal representatives of Toda, Mala and Goru, has also alleged that it is because of the undue influence of the petitioner that their revenue suit filed as far back as 26.8.1991 has not proceeded any further so far inasmuch the case file of that revenue suit is also missing since long and due to petitioner's influence, no steps have been taken so far to re-constitute the file. This allegation is refuted by the petitioner, who contended that the revenue suit could not proceed because of the pendency of certain revision petition before the Board of Revenue. And it is a strange coincidence that even the present case file of the instant petition carries a sticker titled “khone wali file”, which if translated in english literally means, a case file, which often goes missing. Be that as it may, it a poor reflection on the conduct of the petitioner, who despite being a practicing advocate, faced so serious allegation and so frequently, with so many insinuations and aspersions cast against him. 27. Let us now advert to the legal submissions made on behalf of the petitioners. The first and foremost argument is that reference order has been made for seeking annulments of the judgment and decree dated 19.10.1981 with enormous delay of 19 years. The Board ought not to have entertained such a reference, particularly when one of the applicants before the Collector seeking reference to be made, had separately filed a revenue suit and, therefore, the application ought to have out rightly dismissed. In so far as this argument is concerned, this need not detain us any further because Tehsildar, Sikar himself has filed reference application. In so far as this argument is concerned, this need not detain us any further because Tehsildar, Sikar himself has filed reference application. Therefore, even if we were to ignore the reference application filed by Toda, Mala and Goru, nevertheless this cannot invalidate the reference. The core issue that still remains to be examined is whether the reference order has rightly been made and accepted, after as long as 19 years of the judgment and decree dated 19.10.1981. Heavy reliance on behalf of the petitioner has been placed in this regard on the larger bench judgment of this Court in Chiman Singh, supra in which case the question as to within what period, the revisional power with reference to Section 27A of the Rajasthan Panchayati Raj Act, 1953 could be exercised by Collector. The controversy arose because the said provision did not provide any period of limitation and revision petitions filed with enormous delay used to be entertained. In that context, it was held by this Court that where statute omits to fix any period of limitation, the Court cannot prescribe any period of limitation. In absence of period fixed by statute, power has to be exercised within reasonable time depending on facts of given case, though in cases, of fraud, misrepresentation, collusion, lack of jurisdiction, violation of statutory provisions and orders being void or against public interest, power can be exercised at any time (emphasis supplied). This judgment, in fact, strengthen the case of the respondent, rather than that of petitioner, because allegation against the petitioner is of getting the judgment and decree by use of fraud, misrepresentation and collusion. 28. Another judgment of Supreme Court in Ram Karan (Dead) through L.Rs., supra relied by petitioner, also cannot be of any help to him because even the Supreme Court in that case held that a sale being forbidden by law being opposed to public policy within the meaning of Section 23 of the Contract Act, 1872 was not enforceable in law in view of proviso to Section 42. Section 2 of the Contract Act, 1872 also provides that an agreement, which is not enforceable is said to be void. It was observed by their Lordships in para 24 as under: “24. Section 2 of the Contract Act, 1872 also provides that an agreement, which is not enforceable is said to be void. It was observed by their Lordships in para 24 as under: “24. The Amendment Act No. 12 of 1964 though brought into force on 1.05.1964 after the alleged sale on 12.1.1962, the fact remains that even the earlier proviso which was added to Section 42 by second Amendment Act No.28 of 1956, also prohibits any transfer of interest in holding by a Member of Scheduled Castes or Scheduled Tribes to any person who was not a member of Scheduled Castes or Scheduled Tribes. The second amendment Act No.28 of 1956 which came into force on 22.09.1956 was in force at the time of alleged sale, The sale being forbidden by law and being opposed to public policy within the meaning of Section 23 of the Contract Act, 1872, it was not enforceable by law in view of proviso to Section 42. Section 2 of the Contract Act, 1872 also provides that an agreement which is not enforceable by law is said to be void.”` 29. Having decided the matter on first issue against the appellant in that case, the Supreme Court reversed the judgment of this Court on the second issue in relation to limitation for initiation of proceedings for ejectment of transfer by recourse to Section 175. It was held that for taking an action under Section 175 of the Act, the procedure as prescribed under subsection 4(A) by Section 175 has to be adopted. As per Section 214 of the Tenancy Act, the proceedings ought to have been initiated within 12 years because in that case, the transfer was in two parts; one on 2.4.1964 and another on 4.5.1964 and clause 66 of the third scheduled prescribing period of limitation was amended with effect from 5.10.1981 and was prescribed as 30 years. No action was taken either by the Vendor or by the State for more than 31 years. Even on merits, it was found that the sale deed executed on 12.1.1962 by Dalu is not in breach of Section 42 of the Act because proviso to Section 42 inserted by Section 4 of the Rajasthan Tenancy (Second Amendment) Act no.28 of 1956, giving Section 42 retrospective effect has been declared violative of Article 19 of the Constitution. Even on merits, it was found that the sale deed executed on 12.1.1962 by Dalu is not in breach of Section 42 of the Act because proviso to Section 42 inserted by Section 4 of the Rajasthan Tenancy (Second Amendment) Act no.28 of 1956, giving Section 42 retrospective effect has been declared violative of Article 19 of the Constitution. Such are not the facts of the present case because herein even if 30 years is accepted as the basis, which is the period of limitation with effect from 5.10.1981, application for reference has been filed much there before. The judgment does not provide any help to the petitioner. 30. The division bench judgment of this Court in Babu Singh has again dealt with proviso (b) of Section 42, Section 63 (1)(iv) and Section 175 of the Rajasthan Tenancy Act. In that case the original tenant was member of Scheduled Caste, who has sold his property to the person, who was not belonging to the Scheduled Caste category and who in turn sold the same to the petitioner, who was also not a person belonging to Scheduled Caste category. It was held that application filed by the widow for possession and eviction of petitioner would not be maintainable as neither the original tenant, nor his widow failed to sue for recovery of possession within 12 years as provided for in Section 63(1)(iv) of the Act. Such are not the facts in the present case because the period of limitation has since been extended upto 30 years. 31. A learned Single Judge of this Court in Heja Vs Board of Revenue, 1999 DNJ (Raj.) 740 considered validity and correctness of the judgment passed by the Board of Revenue a the reference being made to it by Collector under Section 232 of the Rajasthan Tenancy Act which was accepted. The Board of Revenue by its order passed in reference proceedings set aside a compromise decree entered into between the parties one of which was a Scheduled Caste whereas the other was General Caste. In those facts, when the Board accepted the reference and set aside the decree, this Court upheld the order of the Board in reference proceedings holding that the decree passed by the Civil Court was null and void being in violation of Section 42 of the Rajasthan Tenancy Act. 32. In those facts, when the Board accepted the reference and set aside the decree, this Court upheld the order of the Board in reference proceedings holding that the decree passed by the Civil Court was null and void being in violation of Section 42 of the Rajasthan Tenancy Act. 32. The core issue in Amrendra Pratap Singh vs. Tej Bahadur Prajapati & Ors.-2004 (1) WLC (SC) Civil 203 was acquisition of title by adverse possession on the property belonging to tribal by a non-tribal and it was in that context that their Lordships held that this would be barred by the provisions contained in para 5(2) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations (2 of 1956) and such transfer in the meaning of para 3 thereof would be liable to be treated as transfer of immovable property. The aforesaid Regulations of 1956 were promulgated by the Governor of Orissa in exercise of sub-para (2) of paragraph 5 of the 5th Schedule to the Constitution of India. Similar to Section 42 of the Rajasthan Tenancy Act, there was also a restriction on transfer of the lands of a aboriginal tribal to a member of non aboriginal tribal except with the previous permission of the Sub-Divisional Officer concerned and such provision was contained in Section 7 of the Orissa Merged State's Lands Act, 1950. The Supreme Court held that such transaction would be liable to be construed as transfer which “acquisition of title in favour of a nontribal by invoking the Doctrine of Adverse Possession over the immovable property belonging to a tribal, is prohibited by law and cannot be countenanced by the Court.” It was held that “a tribal may acquire title by adverse possession over the immovable property of another tribal”, “but a non tribal can neither prescribe nor acquire title by adverse possession over the property belonging to a tribal as the same is specifically prohibited by a special law promulgated by the State Legislature”. It was held that “a general law cannot defeat the provisions of special law to the extent to which they are in conflict, else an effort has to be made at reconciling the two provisions by homogeneous reading.” 33. This view was later reiterated by Supreme Court in Lincai Gamango & Ors. Vs. It was held that “a general law cannot defeat the provisions of special law to the extent to which they are in conflict, else an effort has to be made at reconciling the two provisions by homogeneous reading.” 33. This view was later reiterated by Supreme Court in Lincai Gamango & Ors. Vs. Dayanidhi Jena & Ors., AIR 2004 SC 3457 in which the earlier judgment in Amrendra Pratap Singh was followed. Manchegowda & Ors. Vs. State of Karnataka & Ors., (1984) 3 SCC 301 was a case in which the Constitutional validity of the provisions of Section 4 and 5 contained in Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, a similar provision to that of Section 42 of the Rajasthan Tenancy Act, was upheld and it was held that the transfer of granted lands in contravention of the said provision would be void and therefore the transferee would have no property rights and recovery of such property would not be hit by Article 31 or 31A of the Constitution. It was held that a person who acquires a defeasible right which is liable to be defeated in accordance with law, cannot make grievance of violation of Article 19(1)(f) by the Constitution if the law defeating such rights is enacted by a competent legislature. 34. Contention of learned counsel for the petitioner that what is barred in Section 42(b) of the Rajasthan Tenancy Act is sale, gift or bequest, none of which is attracted in the present case and that declaration of the rights of a person belonging to general community against a person of Scheduled Caste/Scheduled Tribe in a regular suit, is not barred thereunder, is only noted to be rejected. Reference in this connection may be usefully made to the judgment of Supreme Court in Pandey Orson Vs. Ram Chandra Sahu, 1992 Supp (2) SCC 77. In that case, their Lordships had the occasion to consider the meaning of the term “transfer” as used in Section 71 of the Tenancy Act 1908. The word “transfer” was not defined in that Act. It was held that considering the situation in which the exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of “transfer” to a transfer under Transfer of Property Act or a situation where “transfer” is statutorily defined. The word “transfer” was not defined in that Act. It was held that considering the situation in which the exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of “transfer” to a transfer under Transfer of Property Act or a situation where “transfer” is statutorily defined. It was held that what exactly was contemplated by Section 71A of that Act was whether possession has passed from one to another and as a physical fact the member of Scheduled Tribe who was entitled to hold possession has lost it to and a non member has come into possession. Such a transaction was held to have been covered by “transfer”. Their Lordships held that “provisions is beneficial and the legislative intention is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. Therefore when the legislature is extending special protection to the named category, the Court has to give a liberal consideration to the protective mechanism which would work out protection and enable the sphere of protection to be effective than limit by its scope.” In State of Madhya Pradesh Vs. Babu Lal & Ors., (1977) 2 SCC 435 , the Hon'ble Supreme Court was dealing with a case in which the non tribal devised a peculiar mode to deprive a tribal of his land. The provisions of M.P. Land Revenue Code 1959 imposed restriction on the transfer of land by a member of a Scheduled Tribe to a non-tribal. The non tribal filed a suit for declaration against the tribal in that case that his name be recorded in the revenue record as bhooswami and the concerned tribal did not contest the suit which ended in decree in favour of the plaintiff based on compromise. The Government intervened and filed a writ of certiorari against the decree which was issued in contravention of sub-section (6) of Section 165 of the M.P. Land Revenue Code, 1959. Though the High Court dismissed the writ petition holding that the State could pursue the alternative remedy by filing the civil suit, the Hon'ble Supreme Court set aside that judgment and issued a writ of certiorari quashing the decree passed in civil suit. 35. Though the High Court dismissed the writ petition holding that the State could pursue the alternative remedy by filing the civil suit, the Hon'ble Supreme Court set aside that judgment and issued a writ of certiorari quashing the decree passed in civil suit. 35. Number of Supreme Court judgments have been cited by Shri R.P. Singh, learned senior counsel for the respondent nos.17 to 29 in support of his argument that if an order is obtained by reason of commission of fraud, the same would be nullity and even the principles of natural justice are not required to be complied with for setting aside the same. The Supreme Court in the relied case has held that if a judgment or decree is vitiated by fraud, the same is nullity. In such an event, Section 44 of the Indian Evidence Act would be attracted. Ratio of all the cited judgments by learned senior counsel is that courts of law are meant for imparting justice between the parties. One, who comes to the Court, must come with clean hands. Once it is held that decree is obtained by reason of commission of fraud, such decree is rendered void and it will render all subsequent proceedings pursuant thereto also as nullity and it would be wholly inequitable to confer a benefit of such decree upon a party who is beneficiary thereunder. This has been consistently so held by the Supreme Court in innumerable cases including in the cases referred to above because the fraud vitiates all solemn acts. 36. Incidentally, the observations of Supreme Court in A.V. Baba Shastri, supra are apposite to refer in the present case wherein it was held by the principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. This is because petitioner has asserted that the judgment and decree has attained finality and merged with the judgment passed by the Revenue Appellate Authority and the Board of Revenue. But on the `doctrine of merger', the law is well settled that even in the judgment of Supreme Court in Kunhayammed, supra it was held in para 42 of the judgment as under: “42. To merge means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. But on the `doctrine of merger', the law is well settled that even in the judgment of Supreme Court in Kunhayammed, supra it was held in para 42 of the judgment as under: “42. To merge means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality.” 37. Viewed thus, it cannot be said that the judgment and decree dated 19.10.1981 merged with the judgment of the Revenue Appellate Authority which dismissed the appeal barred by limitation or further, with the judgment of Board of Revenue, which dismissed the appeal as withdrawn. 38. In view of above, this Court does not find any infirmity in the order passed by the Board of Revenue dated 20.9.2000. The present writ petition fails and is hereby dismissed. However, it is deemed appropriate to direct the SDO, Sikar to resolve the dispute effectively as to the exact number of khasras, which are in possession of and are claimed by various parties and decide the revenue suit pending for last twenty five years, which is now being prosecuted by legal heirs of Toda, Mala and Goru, within a maximum period of one year. The SDO shall for that purpose not entertain any interlocutory application that may be filed to stall or delay the proceedings in the peculiar nature of this case. The fresh file may be reconstituted on necessary documents being submitted by all the concerned parties and thereafter the evidence of the parties may be recorded, without granting any undue or longer adjournments. The proceedings of the suit may be conducted in such a way so as to conclude the same and pass final order within a period of one year from the date copy of this order is produced before him. 39. The proceedings of the suit may be conducted in such a way so as to conclude the same and pass final order within a period of one year from the date copy of this order is produced before him. 39. In the peculiar facts of the case, this Court, in view of dubious, despicable and deplorable conduct of the petitioner, deems it appropriate to saddle him with exemplary cost of Rs.50,000 (rupees fifty thousand), which he shall be required to deposit with the Rajasthan State Legal Services Authority and produce receipt in the Registry within one month, failing which separate contempt proceedings be registered against him for enforcing compliance of this order.