Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 15 (RAJ)

Pancha Ram v. State of Rajasthan

2022-01-04

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT : Pushpendra Singh Bhati, J. 1. This writ petition has been preferred claiming the following reliefs: "(a) an appropriate writ, order or direction be issued quashing the orders passed by the Assistant Collector, Bali, the Revenue Appellate Authority (II), Jodhpur and the Board of Revenue dated 14.12.88, 17.04.93 and 09.06.2000 (Annexures 3, 4 and 5 respectively); (b) the respondents may be restrained from interfering with the cultivatory possession of the petitioners over the lands in dispute; (c) in any case, the order passed by the Board of Revenue for dispossessing the petitioners from 16.06 Bighas of the lands may be quashed." 2. The bone of contention in the present case is subletting of half portion of a land (comprising Khasra No. 59 in Village Dhalop, Tehsil Desuri, District Pali), allotted under the landless category to the private respondent-Jeevla (member of the Scheduled Caste category), which was in alleged violation of the provisions of Section 46A of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'Act of 1955'); and the consequential orders passed in regard to dispossession of the petitioners from the said half portion of the land, while vesting the entire 16 bigha 06 biswa of land in the State as Siwai Chak land. 3. It is pertinent to note that though the private respondent-Jeevla was also ordered to be dispossessed vide the impugned judgments, but he has not challenged the same, until now. 4. The genesis of the present dispute is traceable to an application preferred by the Tehsildar, Desuri, District Pali on 14.06.1983 before the Assistant Collector, Bali, under Section 175 of the Act of 1955. In the said application, while alleging violation of the provisions of Section 175 of the Act of 1955, it was prayed that the non-applicants (present petitioners) as well as the private respondent may be ordered to be dispossessed from the portion of the disputed land, which was put to subletting by the private respondent to the petitioners, and accordingly, the same may be ordered to be vested in the State. 5. On 27.08.1983, the non-applicants/petitioners filed reply to the aforementioned application preferred by the Tehsildar, and they, while denying all the averments made in the said application, claimed, amongst others, their father's prolonged and continuous cultivatory possession over the land in question since Samwat Year 2010. 6. 5. On 27.08.1983, the non-applicants/petitioners filed reply to the aforementioned application preferred by the Tehsildar, and they, while denying all the averments made in the said application, claimed, amongst others, their father's prolonged and continuous cultivatory possession over the land in question since Samwat Year 2010. 6. Thereafter, during the proceedings of the application under Section 175 of the Act of 1955, on the request of the petitioners, the same was converted into a suit. 7. After hearing the parties, the Assistant Collector, Bali, vide the impugned judgment and decree dated 14.12.1988, decreed the suit (application u/s. 175 of the Act of 1955), while directing that the present petitioners alongwith their father and the private respondent herein be dispossessed from the entire land in question. It was also directed that the Tehsildar, Desuri shall take half portion of the said land under his control, while recording the same as Siwai Chak land, until re-allotment of the said half portion of the disputed land is made. 8. Against the aforementioned judgment and decree dated 14.12.1988, the petitioners preferred an appeal before the Revenue Appellate Authority (Second), Jodhpur. 8.1. The Revenue Appellate Authority vide its judgment dated 17.04.1993, while affirming the aforementioned judgment and decree dated 14.12.1988, dismissed the appeal preferred by the petitioners. 9. Being aggrieved by the aforesaid judgment dated 17.04.1993, the petitioner preferred a second appeal before the learned Board of Revenue for Rajasthan at Ajmer, which was also dismissed vide the judgment dated 09.06.2000. However, the learned Board of Revenue modified the judgment and decree dated 14.12.1988 passed by the Assistant Collector, Bali, only to the extent that instead of vesting only half portion of the disputed land in the State, the entire land measuring 16 bigha 06 biswa shall be vested and recorded in favour of the State. 10. Mr. J.L. Purohit, learned Senior Counsel assisted by Mr. Shashank Ojha appearing on behalf of the petitioners submits that as per the relevant khatoni, the petitioners and the private respondent have been recorded as joint khatedars of the disputed land, having equal khatedari rights. 10.1. Learned Senior Counsel further submits that since the petitioners were having prolonged and continuous cultivatory possession in respect of the said land, therefore, the question of any subletting thereof by the father of the private respondent to the petitioners' father, can never arise. 10.1. Learned Senior Counsel further submits that since the petitioners were having prolonged and continuous cultivatory possession in respect of the said land, therefore, the question of any subletting thereof by the father of the private respondent to the petitioners' father, can never arise. Thus, as per learned Senior Counsel, any allegation against the petitioners in regard to violation of Section 46A of the Act of 1955 cannot be sustained in the eye of law. 10.2. In regard to applicability of Section 175 of the Act of 1955, learned Senior Counsel made an attempt to thwart its applicability in the present case, while submitting that since the petitioners' father was having cultivatory possession in respect of the disputed land since Samwat Year 2010, therefore, the petitioners were having undisputed ancestral cultivatory possession of the said land, which fact has been substantially proved by a copy of khasra Girdavri (Samwat Year 2010). Thus, as per learned Senior Counsel, the provisions of Section 175 of the Act of 1955 are not applicable in the present case. 10.3. Learned Senior Counsel thus submits that the revenue entry in respect of the disputed land having been made in favour of the private respondent was not legally sustainable. This is more so when despite the petitioners approaching the revenue authorities several times regarding rectification of an incorrect revenue entry, nothing has been done by the concerned authorities in this regard. 10.4. Learned Senior Counsel also submits that the application under Section 175 of the Act of 1955 was barred by limitation, as the same, at the relevant time, was required to be filed within a period of three years only. In support of this submissions, learned Senior Counsel has referred to Section 63(1)(iv) of the Act of 1955, which reads as under: "63. Tenancy when extinguished-- (1) The interest of tenant in his holding or a part thereof as the case may be shall be extinguished (iv) when he has been deprived of possession and his right to recover possession is barred by limitation." 11. On the other land, learned counsel for the State/respondents No. 1, 4 & 5 submits that since the private respondent has sublet the land allotted to him, being a member of Scheduled Caste category, to the present petitioners who did belong to Savarna Caste category, the same was violative of the provisions of Section 46A of the Act of 1955. On the other land, learned counsel for the State/respondents No. 1, 4 & 5 submits that since the private respondent has sublet the land allotted to him, being a member of Scheduled Caste category, to the present petitioners who did belong to Savarna Caste category, the same was violative of the provisions of Section 46A of the Act of 1955. 11.1. Learned counsel further submits that if the entry in the revenue record has been incorrectly made in favour of the private respondent, then the petitioners were required to take appropriate legal remedy of filing a suit, which was not done by them. 11.2. Learned counsel also submits that though the private respondent was recorded as khatedar in respect of half of the land in question, but it cannot be inferred that he is a joint khatedar alongwith the petitioners. Thus, as per learned counsel, there was no question of a partition being affected in the present case between the petitioners and the private respondent, in respect of the land in question. 11.3. Learned counsel also submits that the petitioners remained in possession of the land in question only on count of the subletting in question by the private respondent to the petitioners. 11.4. As regards the submission made on behalf of the petitioners regarding limitation for filing the application under Section 175 of the Act of 1955, learned counsel submits that the limitation period was to be counted from the date when the factum of subletting in question came to the knowledge of the concerned authorities during the Revenue Survey, and that at the relevant time, the limitation period was of 30 years for the said purpose. 11.5. Learned counsel thus submits that the learned authorities below have passed the impugned judgments after taking into consideration all the relevant evidence placed on record before them. Thus, such a well reasoned and concurrent findings arrived at by the learned authorities below do not call for any interference under the writ jurisdiction. 12. Learned counsel for the respondent No. 6 controverts the submission made on behalf of the petitioners regarding their continuous possession of the disputed land, while submitting that half portion of the land in question belongs to the respondent No. 6. 12. Learned counsel for the respondent No. 6 controverts the submission made on behalf of the petitioners regarding their continuous possession of the disputed land, while submitting that half portion of the land in question belongs to the respondent No. 6. Thus, as per learned counsel, the learned Board of Revenue erred issuing the direction that the entire land be vested with the State, while making the necessary entry in the revenue records. 13. Heard learned counsel for the parties as well as perusing the record of the case. 13.1. Looking to the significance of Sections 46A & 175 of the Act of 1955 for the purpose of the present adjudication, the said provisions are reproduced as hereunder: "46A. Special provision for letting or sub-letting by members of scheduled castes and scheduled tribes-- Not with standing anything contained in sections 44, 45 and 46, no person who is a member of a scheduled caste or a scheduled tribe shall let or sub-let the whole or any part of his holding under the said sections to any person who is not a member of a scheduled caste or a scheduled tribe." 175. Ejectment for illegal transfer or subletting-- (1) If a tenant transfers or sub-lets, or executes an instrument purporting to transfer or sub-let, the whole or any part of his holding otherwise than in accordance with the provisions of this Act and the transferee or sub-lessee or the purported transferee or sub-lessee has entered upon or is in possession of such holding or such part in pursuance of such transfer or sub lease, both the tenant and any person who may have thus obtained or may thus be in possession of the holding or any part of the holding, shall on the application of the land holder, be liable to ejectment from the area so transferred or sub-let or purported to be transferred or sub-let. (2) To every application, under this Section the transferee or the sub-tenant or the purported transferee or the sub-tenant, as the case may be, shall be joined as a party. (3) On an application being made under this section, the court shall issue a notice to the opposite party to appear within such time as may be specified therein and show cause why he should not be ejected from the area so transferred or sublet or purported to be transferred or sub-let. (3) On an application being made under this section, the court shall issue a notice to the opposite party to appear within such time as may be specified therein and show cause why he should not be ejected from the area so transferred or sublet or purported to be transferred or sub-let. (4) If appearance is made within the time specified in the notice and the liability to ejectment is contested, the court shall, on payment of the proper court fees, treat the application to be a suit and proceed with the case as a suit: Provided that in the event of the application having been made by a Tehsildar in respect of land held directly from the State Government no court-fee shall be payable. (4-a) Notwithstanding anything to the contrary contained in sub-section (4), if the application is in respect of contravention of the provision contained in section 42 or the proviso to subsection (2) of section 43 or section 49-A, the court shall, after giving a reasonable opportunity to the parties of being heard, conclude the enquiry in a summary manner and pass order, as far as may be practicable within a period of three months from the date of the appearance of the non-applicants before it, directing ejectment of the tenant and his transferee or sub-lessee from the area transferred or sub-let in contravention of the said provisions." 13.2. This Court finds that at no stage, the petitioners have been able to prove their continuous possession over the land in question since Samwat Year 2010; rather their possession was on count of subletting by the private respondent, which makes it clear that in the present case, the provisions of Section 46A of the Act of 1955 have been violated. 13.3. This Court also finds that the petitioners have also not been able to make out their case regarding joint khatedari over the disputed land, and as regards, the so called incorrect revenue entry in favour of the private respondent, they have not been able to show as to what legal remedy they have availed and exhausted. 13.4. 13.3. This Court also finds that the petitioners have also not been able to make out their case regarding joint khatedari over the disputed land, and as regards, the so called incorrect revenue entry in favour of the private respondent, they have not been able to show as to what legal remedy they have availed and exhausted. 13.4. This Court further finds that from the pleadings as well as the submissions made on behalf of the petitioners, they have not been able to convince this Court regarding the non-applicability of Section 175 of the Act of 1955 in the present case as well as the application under the said provision of law being barred by limitation. 13.5. Thus, in the opinion of this Court, there is no reason so as to interfere with the well reasoned and concurrent findings arrived at by the learned authorities below. 13.6. Consequently, the present petition is dismissed. All pending applications stand disposed of.