Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1604 (RAJ)

Girraj Brahmin v. State of Rajasthan

2018-07-31

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT : SANJEEV PRAKASH SHARMA, J. 1. The petitioners assail the order passed by the Collector dated 18.08.2005 and the order passed by the Board of Revenue dated 14.07.2008 whereby the Collector has accepted the reference made under Section 232 of the Rajasthan Tenancy Act, 1955 (hereinafter ‘the Act of 1955’) and the Board of Revenue has allowed the said reference and set aside the judgment and decree passed by the Assistant Collector Bharatpur dated 21.04.1984 and the subsequent order dated 21.05.1984 and 02.01.1986 passed by the Assistant Settlement Officer and has declared the land to be recorded as Charagah. 2. Learned counsel for the petitioners submits that the petitioner had filed the suit for declaring the land of old khasra No. 1465 measuring 6 bigha 10 biswa, khasra No. 1639 measuring 1 bigha 4 biswa, khasra No. 1645 measuring 14 biswa, khasra No. 1705 measuring 3 bigha 1 biswa, khasra No. 1706 measuring 16 biswa, khasra No. 1724 measuring 1 bigha 12 biswa and khasra No. 1725 measuring 5 biswa, in all 7 khasra Nos. are Khasra No. 39, 123, 156, 258 and 1147, situate in Village Sikrori, Tehsil Kumher, District Bharatpur. The said lands were of the Wahid Khewat and proprietorship of Smt. Kampuri widow of Ganeshi, who was the zamidar and biswedar of the said land. It is submitted that after the coming into force of the Zamindari and Biswedari Abolition Act, 1959, the land was entered in name of the petitioner in terms of Section 29 of the said Act and the petitioner was entered as khudkasht that the said lands in the jamabandi of samwat 2012-2015. The petitioner, therefore, had acquired khatedari rights w.e.f. coming into force the aforesaid Act, i.e. from 15.11.1959 but the State Government wrongfully entered the said lands as Charagah in the samwat year 2019. She, therefore, preferred the suit before the Additional Collector for correcting the entries as the land was duly occupied by her and was being cultivated by her. 3. In reply to the said suit proceedings, the Tehsildar filed his reply and admitted that the petitioner being Wahid Khevat was a khudkasht record holder, was wrongly entered as Charagah and the samwat required to be corrected. The Gram Panchayat Sikroi, Tehsil Kumher, also submitted a declaration to the same effect that the land was in the cultivation and under possession of the petitioner. The Gram Panchayat Sikroi, Tehsil Kumher, also submitted a declaration to the same effect that the land was in the cultivation and under possession of the petitioner. Issues were framed by the Additional Collector and the suit was decreed in favour of the petitioner holding that the entry made in the samwat 2019 was wrongful and the land was to be declared as in the khatedari of the petitioner and the petitioner had acquired all the rights on the said land. The suit was decreed vide order dated 21.04.1984 and after almost 19 years, the reference was made to the Collector, Bharatpur, who vide order dated 18.12.2003 rejected the reference and directed the Tehsildar to conduct a fresh investigation and if he finds that there has been some illegality committed by revenue authority may. 4. It appears that the Tehsildar again submitted an application making a reference on the same grounds. It was submitted that in the khasra girdawari there is no mentioning of the cultivation for samwat 2011-2016, and therefore, the order of the Collector was required to be set-aside. Learned counsel submits that the reference was highly belated. Secondly, the facts have not been examined in light of the record which was produced at the time of deciding the suit filed by the petitioner. It is further submitted that once the rights have accrued in favour of the petitioner in terms of decree, reference after a lapse of 19 years was wholly unjustified and it was not the case of the respondent that the decree had been passed on the basis of fraud or collusion. The petitioner has placed reliance on the law laid down by this Court in the case of Mst. Malka Jamani Begum, through LRs v. State of Raj., 2006 RRD 163. Similar view has been taken by another Coordinate Bench of this Court as reported in 2006 RRD 785, L.Rs. of Rajjak v. Board of Revenue. Learned counsel has also relied on the judgment passed in the case of Shiv Ram v. The State of Rajasthan, 2016 (1) RRT 651, to point out that although for making reference, no limitation has been prescribed, delay of 25 years was held to be unreasonable and reference was dismissed on the said count. of Rajjak v. Board of Revenue. Learned counsel has also relied on the judgment passed in the case of Shiv Ram v. The State of Rajasthan, 2016 (1) RRT 651, to point out that although for making reference, no limitation has been prescribed, delay of 25 years was held to be unreasonable and reference was dismissed on the said count. Learned counsel also submits that the land which was in possession of the petitioner could not be treated as a Charagah land and the possession is to be seen on the crucial date alone. Admittedly, the petitioner was in possession of the entire land as on the crucial date i.e. November 1959 as zamindar and reliance has been placed on law laid down by the Apex Court in the case of Devi Singh v. Board of Revenue for Rajasthan, (1994) 1 SCC 215 . 5. Per contra, learned counsel appearing for the State submits that as there was no entry of cultivation made in samwat year 2011-2016, therefore, the land could not be said to be in possession and on the said basis, therefore, the decree passed by the Assistant Collector dated 21.04.1984 was liable to be set-aside and the reference was rightly made and has been rightly accepted by Collector as well as by Board of Revenue. It is stated that under Section 232 there is no limitation provided. 6. On behalf of the intervener, it has been argued that the land was being used as charagah land by the villagers and the judgment and decree dated 21.04.1984 was rightly set-aside. The petitioner cannot be said to be in possession of the said land because no cultivation was done. He also reliance on the law laid down by the Apex Court in (2000) 3 SCC 652 : AIR 2000 SC 1216 . 7. Having heard learned counsel for the parties, this Court finds that the petitioner had filed the suit for declaration and permanent injunction relating to the land in question before the Assistant Collector. Admittedly the said land was under the Zamindar i.e. petitioner and after coming into force of the Zamindari and Biswedari Abolition Act, 1959, the petitioner would continue to retain the possession as a khudkasht recorded as in the Annual Register before the date of vesting of all such estates in terms of Section 5(4) of the Act of 1959. Admittedly the said land was under the Zamindar i.e. petitioner and after coming into force of the Zamindari and Biswedari Abolition Act, 1959, the petitioner would continue to retain the possession as a khudkasht recorded as in the Annual Register before the date of vesting of all such estates in terms of Section 5(4) of the Act of 1959. The petitioner was admittedly a Zamindar being widow of deceased Ganesh and in terms of Section 29 of the Act of 1959 the petitioner cannot be said to be not in possession of the said lands as on the date of vesting of estate, she would have to be treated as Malik of any khudkasht land in her occupation on such date. And taking note of the said provision, the Assistant Collector has proceeded to hold the petitioner entitled to be declared to have khatedari on the said land. A factual finding has also been arrived at that the lagaan' for the said land was being regularly paid upto samwat 2019 and she was actually in occupation and was cultivating the land. A finding has also been given that in spite of having cultivated the land the entry was not made of the cultivation in the revenue records i.e. the khasra girdawari and the same has been admitted both by the Panchayat as well as by Tehsildar who have filed their reply. While making reference, the Collector has not given finding that a fraud has been committed or that there was any collusion between the revenue authorities and the petitioner. Thus examined, this Court finds that not only there has been unreasonable delay of 19 years in making reference, no new document had come on record to give a finding that the petitioner was not having occupation of the land for which she had sought declaration and entry made on the said lands as Charagah was rightly set-aside by the Assistant Collector. That apart the Collector's order as well as the Board of Revenue do not show whether there was any previous entry prior to samwat 2019 showing the land to be a charagah land and it has not come out as to how the land was entered as a charagah land in samwat 2019 for the first time. This Court's view is supported by the judgments relied upon by the petitioner's counsel. This Court's view is supported by the judgments relied upon by the petitioner's counsel. The view taken in (2000) 3 SCC 652 : AIR 2000 SC 1216 supports case of petitioner as she was in continuous occupation. 8. In the circumstances, the order dated 18.08.2005 passed by the Collector as well as the order dated 14.07.2008 passed by Board of Revenue deserve to be set aside. The reference is held to be illegal and unjustified, and accordingly same is set-aside. The order passed by the Assistant Collector is upheld. The petitioners would have all the rights as flown from the judgment and decree dated 21.04.1984 passed by the Assistant Collector and continue to remain with them. 9. The writ petition is accordingly allowed.