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2023 DIGILAW 1784 (RAJ)

Jai Prakash v. Board of Revenue, Ajmer

2023-09-18

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT : 1. The matter pertains to the year 1997, thus, was listed under the category “Oldest Cases for Early Disposal”. 1.1. This petition under Articles 226 & 227 of the Constitution of India has been preferred claiming the following reliefs: “It is, therefore, respectfully prayed that this writ petition may kindly be allowed and :- (i) By an appropriate writ, order or direction, judgment and decree passed by Board of Revenue vide judgment dated 17-7-1997, Ann/4, in Appeal No 157/89 may kindly be quashed and set aside and judgment and decree passed by the Revenue Appellate Authority dated 4-1-1989, Ann/3 & 3A may kindly be maintained. (ii) By an appropriate writ, order or direction, Respondents be restrained from interfering with the possession of the Petitioner over the land in dispute. (iii) Pending decision of the writ petition, Respondents may be restrained from disturbing the possession of the Petitioner over the land in dispute. (iv) Pending decision of the writ, if any action pre-judiciation to the interest of the Petitioner is taken, the same may also be quashed and set aside. (v) Any other relief, as may be deemed fit may also be granted in favour of the Petitioner. (vi) Costs be awarded in favour of the petitioner.” 2. Brief facts of this case, as placed before this Court by learned counsel of the petitioner are that the petitioner had purchased a land (Araji Khasra Number 573/21 Rakba 15 biswa with 5¼ bigha) from the respondent no.4 on 04.01.1955 through a sale deed/agreement; thereafter, in the year 1971, the respondent started interfering with the possession of the petitioner. The petitioner instituted a suit for declaration under Section 88 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as ‘Act of 1955’) before the learned Sub-Divisional Officer (SDO), Udaipur. The learned SDO vide the judgment and decree dated 07.04.1977 dismissed the said suit. 2.1. The petitioner being aggrieved by the order dated 07.04.1977 preferred an appeal before the learned Revenue Appellate Authority (RAA), Udaipur, which was allowed vide the judgment and decree dated 04.01.1989 in favour of the petitioner to the extent of 15 biswa of the land in question, while quashing and setting aside the judgment and decree dated 07.04.1977. 2.3. 2.1. The petitioner being aggrieved by the order dated 07.04.1977 preferred an appeal before the learned Revenue Appellate Authority (RAA), Udaipur, which was allowed vide the judgment and decree dated 04.01.1989 in favour of the petitioner to the extent of 15 biswa of the land in question, while quashing and setting aside the judgment and decree dated 07.04.1977. 2.3. The respondent no.4 (since deceased, represented by his LRs herein) against the aforementioned judgment and decree passed by the learned RAA, preferred a second appeal before the learned Board of Revenue (BoR) for Rajasthan, Ajmer, which was allowed vide the impugned judgment dated 17.07.1997 while quashing and setting aside the judgment dated 04.01.1989. 3. Learned counsel for the petitioner submitted that the sale deed/agreement was executed on 04.01.1955 and the original Section 42 of the Act of 1955 came into force on 15.10.1955, which did not contain any restriction in regard to transfer of the land from SC/ST to non SC/ST person(s); thereafter, the amendment which came into force on 22.09.1956, a proviso was added to Section 42 which restricted such transfer in favour of non SC/ST person(s), and the next amendment came in force on 01.05.1964, whereby clause (b) was added in Section 42 which declared such transfer from SC/ST to non SC/ST person(s) as void. 3.1. Learned counsel further submitted that at the time of execution of the sale deed/agreement, there was no restriction on the transfer in question from SC/ST to non SC/ST person(s), and thus, such restriction cannot be given retrospective effect. 3.2. In support of such submissions, learned counsel relied upon the judgments rendered by the Division Benches of this Hon’ble Court in the cases of Pt. Triveni Shyam Sharma Vs Board of Revenue, Rajasthan (D.B. Civil Writ Petition No. 445 of 1961, decided on 27.08.1964). and Hari Ram & Anr. Vs State of Rajasthan & Ors. (D.B. Civil Writ Petition No. 1675/1987, decided on 27.05.1996). 3.3. Learned counsel also submitted that the respondent before the learned SDO had admitted in the written statement that he had no objection if the suit of the petitioner is allowed, and therefore, the respondent was estopped from filing the second appeal before the learned BoR. 3.4. (D.B. Civil Writ Petition No. 1675/1987, decided on 27.05.1996). 3.3. Learned counsel also submitted that the respondent before the learned SDO had admitted in the written statement that he had no objection if the suit of the petitioner is allowed, and therefore, the respondent was estopped from filing the second appeal before the learned BoR. 3.4. Learned counsel further submitted that the petitioner had also produced the jamabandi as well as girdawari of Samwat 2031 to 2034, wherein the name of the petitioner was clearly shown in relation to the land in question, and therefore, the learned BoR was not justified in law in passing the impugned judgment. 4. On the other hand, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that only on the basis of the possession, the khatedari rights cannot be created in favour of the any person. 4.1. It was further submitted that the transfer of the land in question was against the provisions of Section 42 of the Act of 1955. It was thus submitted that the learned BoR had passed the impugned judgment, after duly considering the material as well as evidence placed on record before it, and therefore, the same does not call for any interference. 5. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar. 6. This Court observes that the petitioner had purchased the land in question on 04.01.1955, whereafter, the respondent started interfering with the possession of the petitioner. The petitioner instituted a suit before the learned SDO, which was dismissed vide the judgment and decree dated 07.04.1977. Against the said judgment and decree, the petitioner preferred an appeal before learned RAA, which was allowed vide the judgment & decree dated 04.01.1989. Thereafter, the respondent no.4 preferred a second appeal before the learned BoR, which was allowed vide the impugned judgment, while quashing and setting aside the judgment and decree dated 04.01.1989 passed by the learned RAA. 7. This Court further observes that at the time of purchase of the land in question by the petitioner, original Section 42 of the Act of 1955 did not restrict the transfer in question from SC/ST to non SC/ST person(s). 7. This Court further observes that at the time of purchase of the land in question by the petitioner, original Section 42 of the Act of 1955 did not restrict the transfer in question from SC/ST to non SC/ST person(s). Thereafter, the amendment dated 22.09.1956 came into force in the Act of 1955 whereby a proviso was added regarding the restriction on such transfer from SC/ST to non SC/ST person(s). Further clause (b) was added in Section 42 of the Act of 1955 by way of amendment dated 01.05.1964 whereby the transfer of land from SC/ST to non SC/ST person(s) was declared as void. 8. This Court also observes that the petitioner had purchased the land in question on 04.01.1955, and at that time, there was no restriction on transfer of the land belonging to SC/ST person(s) to non SC/ST person(s); the restriction was imposed at a later stage by way of the amendment in Section 42 of the Act of 1955. 9. This Court further observes that Section 42 of the Act of 1955 cannot have a retrospective applicability and the petitioner had purchased the land in question on 04.01.1955, and therefore, there was no question of such restriction having any adverse affect on such purchase. 10. Thus, in light of the above observations and looking into the factual matrix of the present case, the present petition is allowed, and accordingly, the impugned judgment dated 17.07.1997 passed by the Board of Revenue is quashed and set aside, while restoring the judgment dated 04.01.1989 passed by the Revenue Appellate Authority. All pending applications stand disposed of.