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2023 DIGILAW 1842 (RAJ)

Man Singh v. State of Rajasthan

2023-09-27

NUPUR BHATI

body2023
JUDGMENT : (Nupur Bhati, J.) The instant writ petition has been preferred by the petitioner under Article 226 and 227 of the Constitution of India with the following prayers:- i) the writ petition may kindly be allowed with costs; ii) by an appropriate writ, order or direction the judgment dated 29/8/1991, ANNEXURE P/3, judgment dated 22/3/1993, ANNEXURE P/4 and the judgment dated 11/10/2000 ANNEXURE P/5 may kindly be quashed and set aside and the order dated June 12,1986, ANNEXURE P/2 may kindly ordered to be maintained; iii) by an appropriate writ, order or direction grant any other relief, which is considered just and proper in the facts and circumstances of the case; 2. Brief facts of the case are that the respondent No. 6 Gorakhnath was holding khatedari right in land of khasra No. 714 -Rakba 12 bigha 15 biswas, Khasra No. 704 - Rakba 6 Bigha 13 Biswas, Khasra No.742 - Rakba 11 bigha 13 Biswas. Khasra No. 741- Rakba 7 Bigha Gair mumkin Bera, total Rakba 36 Bigha 19 Biswas of all four Khasras; respondent No.6 by separate registered sale deeds sold the above land to the petitioners on 30.6.1986 and since then the petitioners are in cultivatory possession over the land in question and the mutation has also been entered in their names on the basis of the registered sale deed and they are the recorded khatedar of the above mentioned land. 3. The respondent No.6 Gorakhnath was recorded as khatedar of the above mentioned land way back in the samvat year 2010 however vide Corrigendum (Shuddhipatra No.9) dated 3.11.1982 (AnnexureP/1) his name was deleted from it and in his place the land was entered in the name of Doli Banam Asan. The respondent No. 6 filed an application before Sub Divisional Officer (SDO) Sojat for cancellation of the said shuddhipatra dated 3.11.1982 and the SDO Sojat vide order dated 12.06.1986 (Annexure P/2) ordered that the position prior to 3.12.1982 be maintained and thus cancelled the Corrigendum (shuddhipatra). 4. That against the order dated 12.06.1986 passed by SDO the respondent No.5 Mangenath filed an appeal before the Revenue Appellate Authority II Jodhpur (Hereinafter referred to as RAA in short) without impleading petitioner as the party, However the appeal filed by respondent. 4. That against the order dated 12.06.1986 passed by SDO the respondent No.5 Mangenath filed an appeal before the Revenue Appellate Authority II Jodhpur (Hereinafter referred to as RAA in short) without impleading petitioner as the party, However the appeal filed by respondent. No. 5 was allowed by the Revenue Appellate Authority II Jodhpur vide order dated 29.08.1991 (Annexure-P/3), However as the petitioners were not impleaded as party in the appeal filed by respondent No.5 thus they filed a review application before the Revenue Appellate Authority II Jodhpur which was rejected vide order dated 22.03.1993. (Annexure-P/4). 5. Against the order dated 22.03.1993 the petitioners filed a revision petition before the Board Of Revenue, Ajmer, Rajasthan (hereinafter referred to as BOR in short) and the BOR rejected the revision vide order dated 11.10.2000. (Annexure-P/5). 6. Moreover the land in question was recorded in the name of respondent No. 6 Gorakhnath son of shri Lal Nath as mentioned in Khatoni- Jama bandi. (Annexure-P/6) and the name of petitioners on the basis of the registered sale deed dated 30.6.1986 was entered in the revenue record, in Namantkaran Register. (Annexure- P/7); and as a result of Namantkaran No. 816 dated 31.07.1986 the petitioners' names were recorded as khatedar in Jama bandi Khatoni. (Annexure-P/8). 7. The petitioners being aggrieved of the order dated 11.10.2000 passed by the Board of Revenue Ajmer, (Annexure P/5) and the order dated 29.08.1991 and 22.03.1993 passed by the Revenue Appellate Authority II Jodhpur the petitioners have preferred this writ petition. 8. Learned counsel for the petitioners submitted that the order dated 29.08.1991 and 23.03.1993 passed by the RAA and 11.10.2000 passed by the BOR are without jurisdiction and are liable to be quashed and set aside. He further submitted that the land in question originally belonged to respondent No.6 since the samvat year 2010 as he was recorded as khatedar of the land in question. Moreover the land in question was never entered as Khud kasht of Doli Banam Asan and therefore the SDO Sojat was correct in cancelling the Corrigendum (shuddhipatra No.9) dated 03.11.1982. 9. Learned counsel for the petitioners also submitted that entries in the revenue record cannot be changed by way of shuddhipatra because the land in question was in the cultivatory possession of respondent No.6 Gorakhnath and without an order of competent Authority the same cannot be changed. 9. Learned counsel for the petitioners also submitted that entries in the revenue record cannot be changed by way of shuddhipatra because the land in question was in the cultivatory possession of respondent No.6 Gorakhnath and without an order of competent Authority the same cannot be changed. He further submitted that the appeal filed by respondent No.5 Mangenath was incompetent because the SDO Sojat had passed the order in capacity of Land Records Officer and such orders can only be assailed before the Director, Land records and power of the Director is vested in the Divisional Commissioner. 10. Learned counsel for the petitioners also submitted that respondent No.5 Mangenath has no concern with the land in question as his name does not appear in the revenue record and he was not a party before the SDO as the appeal can only be filed by the party concerned and the respondent No 5 had the knowledge regarding the fact that the land in question has been transferred through a registered sale deed dated 30.06.1986 to the petitioners and despite the knowledge of the same he did not implead the petitioners as a party in appeal before the Revenue Appellate Authority II Jodhpur. He further submitted that RAA II Jodhpur has failed to appreciate the fact that the entries made in the revenue record can only be changed by the order of the competent authority and by issuing Corrigendum (Shuddhipatra) the entries cannot be changed and at the most the matter could have been remanded back to the SDO for deciding the matter afresh, however, the RAA II Jodhpur has set aside the order passed by SDO Sojat on an appeal filed by respondent No. 5 who was a stranger to the litigation and with malafide intention did not implead the petitioners as a party. 11. Learned counsel for the petitioners also submitted that the review application filed by the petitioners was also rejected without considering the fact that the Settlement Officer has got no power to change the entries made in the revenue record prior to the Jamabandi and therefore the Corrigendum (Shuddhipatra) so issued was rightly cancelled by the SDO sojat. 11. Learned counsel for the petitioners also submitted that the review application filed by the petitioners was also rejected without considering the fact that the Settlement Officer has got no power to change the entries made in the revenue record prior to the Jamabandi and therefore the Corrigendum (Shuddhipatra) so issued was rightly cancelled by the SDO sojat. He further submitted that the petitioners have possession over the land in question for last 15 years and their names are also recorded in revenue records as khatedar of the land in question as they have purchased the same by registered sale deed dated 30.06.1986. 12. Learned counsel for the petitioners also submitted that as per proviso of Section 136 of the Land Revenue Act 1956 when any error is noticed by a Revenue Officer in any record of rights during the course of his inspection, no error shall be corrected unless a notice to show cause has been given to the parties and in the present case no notice has been given to the petitioners and the sale deed has been declared void by the court below without impleading the petitioner as a party to the appeal on the grounds that the land belongs to a perpetual minor and the decision has been made by the courts below without any documents thus it is based on presumptions and assumptions and also opportunity of hearing has not been granted to the petitioners. Section 136 of the Land Revenue Act 1956 is reproduced here as under:- 136. Correction of errors - The land Records Officer may, at any time, correct or cause to be corrected in the prescribed manner any clerical errors and any errors which the parties interested admit to have been made in the record of rights or register, or which a Revenue Officer may notice during the course of his inspection in any Register: Provided that when any error is noticed by a Revenue Officer in any record of rights during the course of his inspection, no error shall be corrected unless a notice to show cause has been given to the parties. 13. 13. Per contra learned counsel for the respondent State submitted that the land in question was recorded as Doli Banam Asan which is equivalent to a temple and Gorakhnath was having the status of only a pujari and thus any attempt by way of any transaction by Gorakhnath is unauthorised and unlawful thus any entry in the revenue record on that basis is also unlawful. He further submitted that by the Corrigendum (shuddhipatra) only the erroneous entry in the Revenue Record has been rightly corrected keeping into consideration the previous entries where the land was recorded in the name of Doli Banam Asan thus the order dated 12.06.1986 of SDO is illegal and beyond jurisdiction in cancelling the Corrigendum (shuddhipatra). 14. Learned counsel for the respondent State also submitted that the respondent No. 6 chose not to appear before RAA and the appeal filed by respondent No.5 before RAA has rightly been allowed and the review filed by the petitioner has been rightly rejected and, moreover, the land belongs to the deity thus the transaction and proceedings were in any case null and void ab initio. 15. Learned counsel for the respondent State further submitted that the land in question did not originally belong to respondent No.6, and thus mere wrong entry in a part of record in name of respondent No.6 does not create any right in favour of the respondent No 6 or any other person. He also submitted that the learned SDO Sojat has acted illegally and without jurisdiction in proceeding to cancel the Corrigendum (shuddhipatra) without considering the law applicable to the case. Moreover the respondent No. 6 was only a pujari and the incorrect entry in the revenue record could be corrected at any time by the concerned revenue authorities as the land originally belonged to the deity and none other as the transfer is void ab initio. 16. Moreover the respondent No. 6 was only a pujari and the incorrect entry in the revenue record could be corrected at any time by the concerned revenue authorities as the land originally belonged to the deity and none other as the transfer is void ab initio. 16. Learned counsel for the respondent No.5 submitted that the land in question is a Doli Land which is a religious place of Nath Samoraday and respondent No.5 is the descendant of the persons holding priest ship of this Asan and the respondent No.6 with the connivance of revenue authority got his name entered as khatedar of the said land in question and when this came to the notice of settlement authorities, the original entry was restored back and when the SDO wrongly changed the entry in the name of respondent No 6 which was challenged by respondent No. 5 in appeal before the Revenue appellate authority wherein it was held that the deity is a perpetual minor and the land being a Doli land as such it could not be entered in the name of respondent No.6 and the original entry in the name of Doli Banam Asan was to be restored. He further submitted that the registered sale deed in favour of the petitioner of the land in question dated 30.06.1986 was void ab initio and illegal and the possession of the petitioner on the basis of such sale deed and mutation effected in their name automatically ceases to have any legal effect. 17. Learned counsel for respondent no 5 also submitted that the land was originally held as Doli Banam Asan therefore the entry in name of respondent No.6 Gorakhnath was rightly deleted. He further submitted that the review and revision filed by petitioner was rightly rejected by RAA and BOR vide order dated 22.03.1993 and 11.10.2000. He also submitted that the respondent No.6 Gorakhnath had no right, title or interest nor could he ever acquire the same hence sale deed executed by him in favour of the petitioner is of no consequence and thus the petitioner also could not claim any right title and interest in the Doli land as the person from whom they purchased had no transferable right and the SDO did not take into account the fact that the land being Doli grant therefore it was rightly rejected by the RAA Jodhpur. He further submitted that Gorakhnath has no cultivatory possession over the land in question as he never resided nor cultivated the land at village Dhanla. 18. Learned counsel for the respondent No.5 also submitted that the petitioners are in illegal possession on the basis of void and illegal sale deed and thus they are not the proper and necessary party despite the same the petitioners filed a review before RAA. He further submitted that on 12.06.1986 the order was passed by the SDO Sojat and on 30.06.1986 the land was sold through a registered sale deed which shows a malafide on the part of respondent No 6 in transferring the deity/ doli land/ land in question to the petitioners which was within 18 days from the date of the order passed by the SDO. In support of his submissions learned counsel for the respondents placed reliance on the judgments of the coordinate bench of this Hon'ble High Court in the case of Poosa Ram v. The Board Of Revenue and others (DB Civil Writ Petition No. 179/1986). The relevant portion of the Judgment is reproduced here under: 3. The controversy, in the present case, centres round the interpretation of Section 136 of the Act, which reads as under:- "Section 136. Decision of Disputes. All disputes respecting the class or tenure of any tenant or regarding the rent or revenue payable or regarding entries in the annual register, shall be decided in accordance with the provisions of Section 123 or Section 124 or Section 125, as the case may be." Section 136 of the Act deals with the settlement of disputes relating to: (i) Class or tenure of any tenant (Section 123), (ii) land or revenue payable (Section 124); and (iii) entry in the annual register (Section 125), which are to be decided in accordance with the provisions of Sections 123 or 124 or 125 of the Act. Annual register has been defined in Section 132 of the Act. After completion of the survey/settlement operations, as per Section of the Act, it is the duty of the Land Record Officer to maintain the Record of Rights and for that purpose, shall cause to prepare a set or amended set, as the case may be annually or at such longer interval as the State Government may prescribe, of the registers enumerated in Section 114. The Land Record Officer is further obliged to record in the annual register in the prescribed manner, all the changes that may take placed and any transaction that may affect any of the rights or interest. 5. Maintenance of the land record is a continuous process. It aims in keeping the record up to date. After the completion of the settlement/survey operation, a duty is cast upon the Sub-Divisional Officer who is Land Record Officer, to maintain up to date record of rights by recording necessary changes occurred from time to time affecting the rights and interest of the parties in any land or profit thereof and to correct errors in the annual register. Whether Section 136 of the Act confers any power on the Land Record Officer to correct any error crept in the record of rights during the settlement/survey operation or it is limited to the dispute relating to the class or nature of any tenant or regarding the land or revenue payable or regarding entries in the annual register referred in Sections 123,124 and 125 of the Act; If Section 136 of the Act reference is only to the decision of the dispute with respect to the dispute under these Section then there was no necessity for enacting this Section and the dispute mentioned in these Sections (namely Sections 123, 124 and 125) would have been decided under these provisions itself. The interpretation that this Section 136 confers no power and is merely operative in nature and draws attention to he provisions of Sections 123, 124 and 125 only, will make the provisions of Section 136 of the Act as redundant and have been inserted without any purpose. A construction which attributes redundancy to the Legislature cannot be accepted except for compelling rea-sons. When the Legislature makes certain provision in an Act the presumption is that it is for some purpose and every part of a statute has its effect because the Legislature never waste its words or say anything in vain. The Rule of interpretation is that if possible a meaning should be given to every word and the Section in the Statute unless there is a reason to the contrary. The Rule of interpretation is that if possible a meaning should be given to every word and the Section in the Statute unless there is a reason to the contrary. If during the settlement/survey operations the record has been prepared by the Staff with arbitrariness then this arbitrariness in the preparation of the record can be cured and necessary correction can be made under Section 136 of the Act and it cannot be said that after the settlement/survey operations are over, the aggrieved party has no remedy except to file a suit. If Section 136 of the Act is read with Sections 123, 124, 125, 131 and 132 of the Act then it is clear that the errors crept-in- during the settlement operation in the Record of Rights or the entry made by the Staff in preparing the record is with arbitrariness then those errors can be corrected by the Land Record Officer under Section 136 of the Act. Looking to the place where Section 136 of the Act has been inserted and the object behind it, clearly show that the intention of the Legislature in enacting this Section 136 of the Act was to give powers to the competent authority to correct an error crept in the Annual Registers during the Settlement/Survey Operations which are the part of the Revenue Records. The Land Record Officer has, therefore, power to correct the error which has been crept in the revenue record during the settlement operations but he cannot convert the nature of the land. He Further placed reliance on the judgment of the coordinate bench of this Hon'ble High Court in the case of Tara & Ors v. State of Rajasthan & Anr (DB Civil Special Appeal No. No. 185/2001). The relevant portion of the Judgment is reproduced here under: "48. He Further placed reliance on the judgment of the coordinate bench of this Hon'ble High Court in the case of Tara & Ors v. State of Rajasthan & Anr (DB Civil Special Appeal No. No. 185/2001). The relevant portion of the Judgment is reproduced here under: "48. In order to summarize the answers, the questions framed by by the Court and our decisions on the questions are stated as below:- "Question no.(i) Whether the land held in Jagir, by Hindu Idol (deity) as Dolidar or Muafidar cultivated by a person other than the Shebait/Pujari of the deity or by hired labour or servants engaged by its Shebait/Pujari as a tenant of the deity, such idol being treated as a perpetual minor, will still be regarded as land held in the personal cultivation of the deity or will such land be regarded as held in the tenancy by the person cultivating such land as tenant of a deity? Answer:- The question no.(i) is decided in favour of the State and against the Shebait/Pujari claiming the land to be saved by the Jagirs Act of 1952. The land held in Jagir by Hindu idol (deity) as Dolidar or Muafidar cultivated by a person other than the Shebait/Pujari of the deity personally or by hired labour or servants engaged by its Shebait/Pujari as a tenant of the deity, shall vest in the State, after the Jagirs Act of 1952. The Hindu idol (deity), even if it is treated to be a perpetual minor, could not continue to hold such land. Such land cannot be treated to be in its personal cultivation. A tenant of such land cultivating the land acquired the rights of khatedar of the State. Such land under the tenancy of a person other than Shebait/Purjari of Hindu Idol (deity) became khatedari land of such tenant. The name of Hindu Idol (deity) from such land had to be expunged from the revenue records with Shebait/Pujuri having no right to claim the land as Khatedar.Consequently, they had no right to transfer such lands, and all such transfers have to be treated as null and void, in contravention of the Jagirs Act 1952, and the land under such transfers to be resumed by the State. Question no.(ii) What are the rights of the Hindu Idol (deity) in the lands held by them in the name of its Shebaits/Pujari on the date of resumption of such Jagir, under the provisions of the Rajasthan Land Reforms & Resumption of Jagir Act, 1952? Answer:- The Hindu Idol (deity) in the lands held by them in the name of its Shebait/Pujari on the date of resumption of such Jagir under the provisions of the Jagirs Act of 1952 did not have any rights except in khudkasht land cultivated by Shebait/Pujari either by themselves or by hired labour or servant engaged by them for the benefit of the expenses of the temple including sewa puja. All those lands let out by them to the tenants or sub-tenants were resumed by the Jagirs Act of 1952 and that the Hindu idol (deity) lost all the rights in such jagir lands. Question no.(iii) Whether such a Jagir land/Muafi held by the Shebait/Pujari of Hindu Idol (deity) in their name after the date of resumption of the Jagir (Muafi) can be alienated by them? If so, what is the effect? Answer:- The Jagir land/Muafi held by the Shebait/Pujari of Hindu Idol(deity) in their name after the date of resumption of the Jagir (Muafi) by the Jagirs Act of 1952 will not give them any right nor they could alienate the land. The alienation made by them of such land which was resumed/acquired by the State Government and for which claims were made and settled before the Jagir Commissioner, would be null and void and will have no effect. Question no.(iv) Whether any person can acquire right by adverse possession in the lands of aforesaid nature against the holder? Answer:- No person can acquire right by adverse possession in the lands which were resumed or are in the tenancy of the tenants as khatedars. The limitation applicable under the Rajasthan Tenancy Act, 1955 for filing suit for possession against the trespasser will be applicable. The Rajasthan Tenancy Act, 1955 being a Special Act, will prevail and the provisions of Section 27 of the Limitation Act will not apply for claiming adverse possession on such lands. The limitation applicable under the Rajasthan Tenancy Act, 1955 for filing suit for possession against the trespasser will be applicable. The Rajasthan Tenancy Act, 1955 being a Special Act, will prevail and the provisions of Section 27 of the Limitation Act will not apply for claiming adverse possession on such lands. Question no.(v) Whether any time limit can be fixed for reference under section 82 of the Rajasthan Land Revenue Act, 1956 and under section 232 of the Rajasthan Tenancy Act, 1955 in respect of the land held by a Hindu Idol (deity). If so, to what extent? Answer:- No time limit has been fixed for reference under Section 82 of the Rajasthan Land Revenue Act, 1956 and under section 232 of the Rajasthan Tenancy Act, 1955 in respect of the land held by a Hindu Idol (deity), and thus a reference can be made within a reasonable time, which will depend upon the facts and circumstances of each case. Even if the fraud is alleged, the power must not be exercised after unreasonable period, such as, after several decades claiming rights over the land." 19. Heard learned counsel for the parties; perused the material available on record and the judgments cited at the bar. 20. This court observes that the revenue appellate authority and the Board of Revenue vide orders dated 29.08.1991 and 11.10.2000 after examining the record have held that the land belonged to Doli Banam Asan and thus the respondent No. 6 being a pujari could not have further sold the land in question to the petitioners and in furtherance of the same all the mutations that had taken place shall not create any right in favour of petitioners. This court also observes that through the corrigendum (Shuddhipatra No. 9) dated 03.11.1982 the land records were corrected in the name of the deity which was cancelled by the SDO Sojat vide order dated 12.06.1986. The order of SDO Sojat dated 12.06.1986 was later set aside by the RAA vide order dated 29.08.1991 and was upheld by the BOR vide order dated 11.10.2000 while taking into consideration all the relevant facts and material. 21. The order of SDO Sojat dated 12.06.1986 was later set aside by the RAA vide order dated 29.08.1991 and was upheld by the BOR vide order dated 11.10.2000 while taking into consideration all the relevant facts and material. 21. This court further observes that as laid down in the judgement passed by the full bench of this Hon'ble court in the case of Tara and ors v. State of Rajasthan 2015 (4) RLW 2721 (Raj) in which this court held that once the land has been recorded as the land of deity who is considered a perpetual minor land and whose land cannot be transferred to anyone therefore the sale deed dated 30.06.1986 executed and registered in the name of the petitioners by respondent No.6 while transferring the land in question is void ab initio and thus no legal right is created in favour of the petitioners. 22. This court further observes that on 12.06.1986 the order was passed by the SDO Sojat and on 30.06.1986 the land was sold through a registered sale deed which shows a mala fide on the part of respondent No.6 in transferring the deity/ doli land to the petitioners wherein within 18 days from the date of the order passed by the SDO, the land in question was sold to the petitioners and thus mutation entries were effected in the name of the petitioners. This court also observes that the contention of the petitioners that the petitioners were not made the party in the appeal filed by the respondent No 5 does not stand as the transaction between the respondent No.6 and petitioners for transferring the Doli land was void ab initio as the land of perpetual minor could not be alienated by the respondent No 6 who had no right and a better title to transfer. 23. In view of the above observations, the writ petition being devoid of merit is hereby dismissed. Stay application as well as all other pending applications, if any, also stand dismissed.