KISHORI Vs. BOARD OF REVENUE FOR RAJASTHAN

JUDGEMENT

(1.) This writ petition has been filed by the petitioner assailing the order passed by the Board of Revenue dated 28.9.87. The Board of Revenue by the aforesaid judgment dismissed the appeal filed by the petitioner and upheld the judgment passed by the Revenue Appellate Authority dated 16.10.79 and that of the Sub Divisional Officer, Bharatpur dated August 20, 1969. The revenue suit for declaration was filed by one Jwala Prasad, who was predecessor of respondent Nos. 4 to 8 inter alia with the prayer that he should be declared khatedar of the lands of Khasra No. 406, 407 and 408 in village Namkhera Tehsil Nadbai District Bharatpur. The Revenue Appellate Authority by its judgment dated 16.10.79 decreed that suit and thereby declared the plaintiff as Khatedar. The case of the plaintiff in the revenue suit was that he was Muafidar of Biswedar in the disputed land and that the status of Muafidar of the land was of the Khudkasht tenant and his name could not be entered in the column of Malik and that he should be recorded as tenant. Initially the appeal filed by the defendant-petitioner was allowed by the Revenue Appellate Authority vide judgment dated 26.11.71 and the suit filed by the plaintiff-respondents was thereby dismissed. However, the plaintiff filed an appeal before the Board of Revenue which vide its judgment dated 6.6.77 allowed the appeal and remanded the matter back to the Revenue Appellate Authority. It is thereafter that the Revenue Appellate Authority by its judgment dated 6.10.79 dismissed the appeal and upheld the judgment and decree passed by the Sub Divisional Magistrate, District Bharatpur dated 20.8.69. Further appeal filed by the defendant-petitioner Kishori Lal was dismissed by the Board of Revenue vide impugned judgment dated 28.9.87. It is against the backdrop of these facts that Kishori Lal has approached this court by assailing all the three judgments.

(2.) Shri Ajay Gupta, learned counsel for the defendant-petitioner has argued that now Rajasthan Zamindari and Biswedari Abolition Act, 1959 was made applicable with effect from 15.11.1959 in respect of all the settled Jamindari and Biswedari estates in the State of Rajasthan by virtue of Section 4 of the Biswedari Abolition Act all rights and titles of the Biswedars vested in the State. Originally plaintiff who was merely Muafidar of the Biswedar and was not even cultivating the disputed land as Khudkasht and, therefore, he lost all his rights and petitioner, who was tenant of the Muafidar became the khatedar tenant of the land by virtue of Section 15 of the Rajasthan Tenancy Act, and mutation was attested in his name. Petitioner was recorded as khatedar tenant pursuant to the order of the Sub Divisional Officer dated 3.2.87. Even if it is assumed that the plaintiff-respondent was a Biswedar himself, then also he lost his possession after enforcement of the Abolition Act, he could not claim himself as khatedar. Learned counsel for the petitioner supported his contentions relying upon the judgment of the Supreme Court in Budha vs. Amilal, 1991 Supp2 SCC 41 and Bir Singh & Ors. vs. Pyare Singh & Ors., 2000 3 SCC 652. He has, therefore, prayed that the impugned judgments be set aside and the writ petition be allowed.

(3.) Shri R.K. Pareek, learned counsel for the respondents opposed the writ petition and submitted that the learned trial Court has decided issue No. 1 in his favour, which was to the effect that whether the plaintiff Jwala Prasad was in possession of the disputed land and was cultivating the same and after his death his legal representatives acquired the same status. In view of that finding, the Revenue Appellate Authority and the Board of Revenue were perfectly justified in dismissing the appeals filed by the petitioner and the suit with reference to Section 88 of the Rajasthan Tenancy Act was rightly decreed in favour of the plaintiff respondents. The remaining question is only the question of consequential relief under Section 188 of the Rajasthan Tenancy Act which was also liable to be decided in favour of the plaintiff. It is contended that the Sub Divisional Officer rightly held that the possession of the defendant-petitioner was unlawful and without the authority of law. The predecessor in title of defendant petitioner had acquired that possession from the respondent Jwala Prasad, who was Muafidar in the land and, therefore, mere illegally acquired possession at a later point of time of the petitioner would not vest upon them the khatedari rights.