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2015 DIGILAW 1112 (RAJ)

Tola Ram v. Board of Revenue

2015-05-22

MOHAMMAD RAFIQ

body2015
ORDER 1. This writ petition filed by the petitioner Tola Ram seeks to challenge the order dated 6.5.2010 passed by the Board of Revenue, whereby it has accepted the reference made to it by the Additional Collector, Jhalawar under Section 82 of the Rajasthan Land Revenue Act, 1956 vide order dated 18.12.1999 and set aside the order passed by the SDO dated 27.12.1995, whereby petitioner was recorded as khatedar of the land of khasra no.433 measuring 4 bigha 10 biswa. 2. The facts of the case are that the Smt. Onkari Bai, mother of Kanchan Bai filed a suit no.324/81 under Section 188 and 183 of the Rajasthan Tenancy Act before the learned Additional Collector and Magistrate, Bhawani Mandi against the petitioner. In the suit, she has pleaded that the land of khasra nos.433 measuring 4 bigha and 10 biswa, 452 measuring 6 bigha and 4 biswa, 463 measuring 2 bigha and 17 biswa, 454 measuring 8 bigha, 455 measuring 18 bigha, 456 measuring 1 bigha, 477 measuring 1 bigha, totaling 15 bigha and 14 biswa, which she used to cultivate through son of younger brother of her husband, Kanwar Lal, who was plaintiff no.2. Father of Kanwar Lal, Shri Ram Lal was employee with Tola Ram, Radhey Shyam etc. about 10 years ago. Employer were claiming Rs.3,000, which was due on him, apart from the interest on such amount. They had forcibly taken possession of the land of khasra no.433 and prevented the plaintiff from entering of land. Petitioner Tola Ram, Radhey Shyam and others who were defendants in the suit contested the suit. They also filed counter claim. They maintained that this land was sold to them by the plaintiff in Svt. 2010 and since then they are in possession of the same. The plaintiff has no locus to file the suit. The suit was dismissed by the learned SDO by order dated 20.2.1985 and no relief was granted to both the parties. 3. Petitioner-Tola Ram then filed a suit wherein it was alleged that apart from the earlier judgement and decree passed twice, the application of Onkari Bai was rejected by Tehsildar Pachpahad on 9.6.1989 and 28.11.1992. She has wrongly been shown as Khatedar of the land in dispute and wants to forcibly take possession of the land. 3. Petitioner-Tola Ram then filed a suit wherein it was alleged that apart from the earlier judgement and decree passed twice, the application of Onkari Bai was rejected by Tehsildar Pachpahad on 9.6.1989 and 28.11.1992. She has wrongly been shown as Khatedar of the land in dispute and wants to forcibly take possession of the land. The petitioner has acquired right and title in the land in dispute by adverse possession and he should be declared khatedar-tenant thereof. Petitioner as plaintiff in the suit produced four witnesses in support of his case. The SDO, Bhawani Mandi decided the suit ex-parte vide judgment dated 27.12.1995 holding that the petitioner Tola Ram has acquired the title in the disputed land by adverse possession and right of the defendant Kanchan Bai to acquire possession has come to an end after expiry of 12 years of the date of such adverse possession. The possession of Tola Ram by judgement of Assistant Collector 20.2.1985 has been proved at least 6-7 years before that date. In between, the suit of the defendant u/s.183 and 183(b) for recovery of possession has been dismissed by Tehsildar on 20.2.1985, thus the possession of the petitioner-plaintiff Tola Ram over the disputed land was for more than 15 years. The learned SDO, therefore declared him as khatedar-tenant. 4. Respondent no.2-Tehsildar, Pachpahad, District Jhalawar filed an application for making reference under Section 82 of the said Act before the Additional Collector on 23.5.1997 inter alia on the premise that the land of khasra no.433 measuring 4 bigha 10 biswa was entered in the name of Smt. Kanchan Bai W/o Shri Rama Chamar situated in Village Anwali Kala Tehsil Pachpahad, District Jhalawar. Smt. Kanchan Bai belongs to Schedule Caste, whereas petitioner belongs to Dhakar community. He purchased the said land from Onkari Bai, mother of Kanchan Bai in Samvat 2010 and paid a sum of Rs.95. Petitioner has received the possession of the said land by an unregistered sale deed executed between the parties over the land in Samvat 2010. Petitioner by collusion with the defendant-Kanchan Bai obtained collusive decree on 27.12.1995 in respect of the land of Scheduled Caste, which is in breach of the bar contained in Section 42(b) of the Rajasthan Tenancy Act. Tola Ram in his plaint so filed claimed that he purchased the land from Onkari Bai, mother of Kanchan Bai in Svt. Petitioner by collusion with the defendant-Kanchan Bai obtained collusive decree on 27.12.1995 in respect of the land of Scheduled Caste, which is in breach of the bar contained in Section 42(b) of the Rajasthan Tenancy Act. Tola Ram in his plaint so filed claimed that he purchased the land from Onkari Bai, mother of Kanchan Bai in Svt. 2010 from Panna, father of Kanchan and husband of Onkari Bai and it was wrongly asserted by him that he was in possession of the land since then. Neither any documentary proof, nor any khasra girdawari was produced to prove his possession, nor any sale deed was produced to substantiate the factum of sale. Witnesses Mathura Lal PW1, Valaram PW2, Ram Narayan PW3 and Shankar Lal PW4 were produced in oral evidence. Rama Chamar, husband of Kanchan Bai and son in law of Panna and Onkari Bai have stated before this Court that they have no objection if the land in dispute is recorded in the khatedari of Tola Ram. Kanwar Lal S/o Rama Chamar has also filed written statement that he does not want to contest the matter. This proves that the decree has been obtained by collusion in respect of land of person belonging to Scheduled Caste, which is hit by Section 42(b) of the Rajasthan Tenancy Act. 5. The learned Additional Collector and Additional District Magistrate, Jhalawar set aside the judgment dated 27.12.1995 passed by the SDO, Bhawani Mandi and initiated the proceedings under Section 175 of the Rajasthan Land Revenue Act vide order dated 18.12.1999 and reference was sent to the Board of Revenue, Rajasthan for deciding the matter. The Board of Revenue has by impugned judgment dated 6.5.2010 accepted the reference and set aside the judgment of the SDO dated 27.12.1995. Petitioner thereafter filed a review petition before the Board of Revenue, which too was dismissed by the order of the Board of Revenue dated 5.8.2011. 6. Shri Sukhveer Singh, learned counsel for the petitioner has argued that the learned courts below have failed to consider that the petitioner has purchased the land of khasra no.433 measuring 4 bigha 10 biswa situated at Village Anwali Kala Tehsil Pachpahad District Jhalawar from the recorded khastedar Smt. Onkari (mother of the Kanchan Bai) in Samvat 2010 before the commencement of the Rajasthan Tenancy Act, 1956. Petitioner is in possession and cultivating the land continuously. Petitioner is in possession and cultivating the land continuously. Hence the provisions of Section 42(b) of the Rajasthan Tenancy Act is not applicable in his case and he has been rightly declared khatedar of the land on the basis of adverse possession. It is argued that the learned SDO, Bhawani Mandi passed the judgment and decree on 27.12.1995 and considered all the relevant documents and oral evidence available on record and petitioner has been legally and rightly declared the khatedar of the land in question. 7. It is contended that no case of res-judicata arises in the matter as the Tehsildar, Pachpahad was party in the proceedings before the SDO and he has failed to oppose the proceedings on the basis of principle of res-judicata. It is argued that the learned Board of Revenue has not given any reason for exercising the power of reference after expiry of such a long period vide order dated 6.5.2010. The learned Board of Revenue has not taken into consideration the principle of law as laid down in various judgements that the power of reference cannot be exercised after expiry of period of three years. Learned counsel has relied on the judgment of this Court in Sunehari & Ors. vs. State & Ors.- 2010 (4) WLC (Raj.) 210. 8. I have given my anxious consideration to the rival submissions and perused the impugned orders. 9. The main argument is that reference order has been made for seeking annulments of the judgment and decree dated 27.12.1995 with enormous delay of 25 years. The Board ought not to have entertained such a reference. The core issue that remains to be examined is whether the reference order has rightly been made and accepted, after as long as 25 years of the judgment and decree dated 27.12.1995. The larger bench judgment of this Court in Chiman Singh vs. State of Rajasthan-2000 (2) WLC (Raj.) page 1 has considered this aspect, 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. 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). In the present case allegation against the petitioner is of getting the judgment and decree dated 27.12.1995 by use of fraud, misrepresentation and collusion because earlier vide order of the Assistant Collector, Bhawani Mandi dated 20.2.1985, the counter claim of the petitioner in the suit filed by Onkari Bai regarding the same land has been rejected. Petitioner has obtained the decree dated 27.12.1995 declaring him khatedar of the land, which is hit by principles of res-judicata according to Section 11 of CPC. Even in the present case against the order dated 27.12.1995, the reference application has been filed by Tehsildar Pachpahad as soon as on 23.5.1997, which was accepted by the Additional Collector vide order dated 18.12.1999 and thereafter the Board of Revenue has passed the order on 6.5.2010 setting aside the decree dated 27.12.1995. 10. The second argument of learned counsel for the petitioner is that the provisions of Section 42(b) of the Tenancy Act is not applicable in his case because he is entitled to be recorded as khatedar of the land on the basis of adverse possession. The Board of Revenue in the impugned order has observed that for claiming title in the land on the basis of adverse possession, petitioner was to prove that he was in possession of the land for last thirty years, but he has failed to produce any document like khasra girdawari, jamabandi etc., showing that he was in possession of the land for last 30 years, nor any sale deed was produced to substantiate the factum of sale. Witnesses Mathura Lal PW1, Valaram PW2, Ram Narayan PW3 and Shankar Lal PW4 were produced in oral evidence only. Witnesses Mathura Lal PW1, Valaram PW2, Ram Narayan PW3 and Shankar Lal PW4 were produced in oral evidence only. Even the claim of adverse possession of the petitioner too was rejected in the counter claim made by him in the suit filed by Onkari Devi and thus is also barred by principles of res judicata. 11. 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 on 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. 12. The question 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. 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 non-tribal 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.” 13. 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. 14. In State of Madhya Pradesh Vs. 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. 14. 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. 15. In view of above, I find no reason to interfere in the impugned orders. The writ petition is dismissed.