SITA RAM Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THERE is a delay of 4 days in filing the appeal. For the reasons stated in the application under section 5 of the Limitation Act duly supported by affidavit, delay of 4 days in filing the appeal is condoned. The application for condonation of delay thus stands disposed of. The intra-court appeal has been preferred against the order dated 16.2.2012 passed by the Single Bench whereby the writ application challenging the order dated 23.8.2007 passed by the Board of Revenue upholding the order of the Revenue Appellate Authority dated 9.12.1997 dismissing the appeal of appellant on the ground of having abated, was dismissed. Brief facts of the case are that the private-respondents-plaintiffs filed a suit against the appellant-defendant before the Assistant Collector, Bundi in respect of khasra no.1632/1 admeasuring 13 bigha situated in village Lakheri contending inter-alia that the land in dispute was in their khatedari and the land to the extent of 8 bigha was fraudulently taken over by the appellant-defendant on the basis of transaction which was prohibited under section 42(b) of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as "the Tenancy Act") as the respondents-plaintiffs belong to scheduled tribe community and the appellant-defendant was a non-scheduled tribe person; it was further contended in the plaint that the possession of the appellant-defendant over the land in dispute was without authority of law and he was trespasser. The suit was decreed by the Assistant Collector Bundi vide judgment & decree dated 27.7.1981. On appeal filed by the appellant-petitioner, the Revenue Appellate Authority vide judgment dated 6.9.1986 set aside the judgment and decree and 27.7.1981. Aggrieved by the judgment dated 6.9.1986, appeal was filed by the plaintiffs-respondents, which was allowed by the Board of Revenue vide judgment dated 28.9.1993 and the matter was remitted back to the Revenue Appellate Authority with the directions to decide the appeal afresh on merits. Thereafter, on remand, the Revenue Appellate Authority vide judgment dated 9.12.1997 dismissed the appeal of the appellant-petitioner on the ground of having abated. The said judgment was challenged by the appellant before the Board of Revenue and the Board of Revenue vide judgment dated 23.8.2007 dismissed the second appeal of the appellant holding that appeal was rightly dismissed by the Revenue Appellate Authority on the ground of abatement and apart from this, transaction in question was void under section 42(b) of the Tenancy Act as the same was between scheduled tribe persons (respondents-plaintiffs) and non-scheduled tribe person (appellant-defendant). Aggrieved by the judgments and orders passed by the Board of Revenue and Revenue Appellate Authority, the appellant preferred the writ application, which was dismissed by the Single Bench vide impugned order dated 16.2.2012. Hence, the intra-court appeal.

(2.) WE have heard the learned counsel appearing on behalf of the appellant and perused the material on record. Admittedly, sale transaction in question took place between the plaintiffs-respondents, who belong to scheduled tribe category and the appellant-defendant, who belongs to non-scheduled tribe category and in view of the provisions of Section 42(b) of the Tenancy Act, the transaction in question was held to be void by the courts below. Apart from this, appeal of appellant was held to be abated as he was having specific knowledge of the death of Kishangopal and Heera Lal on 22.7.1994, but moved application for bringing their LRs on record subsequent to abatement and without application to have such abatement set aside, after a period of 2-1/2 years.

(3.) THE aforesaid Section 42(b) declares any transaction by khatedar tenant of his interest in the whole or part of his holding, to be void in case such sale, gift or bequest by a member of Scheduled Caste in favour of a person who is not a member of Scheduled Caste or by a member of Scheduled Tribe in favour of a person who is not a member of Scheduled Tribe. The aforesaid provision has been included in the Act of 1955 with a view to protect the tenants belonging to Scheduled Caste and Scheduled Tribe from social injustice and all forms of exploitation and i.e. for fulfilment of directive principles enshrined under Article 46 of the Constitution. Enactment has been enlisted under Schedule IXth having protective umbrella of Article 31-B of the Constitution. The objective is that sources of such weaker sections remains within such community and it does not go out of them. The Apex Court in Manchegowda and ors. V/s State of Karnataka and ors. ((1984) 3 SCC 301) has laid down in the context of Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 containing prohibition of transfers of granted lands and resumption thereof, that the Legislature is competent to declare transfer of lands in contravention of the prohibition as void and effect the resumption, having regard to the legislative policy and object. The Legislature is also competent to nullify the prohibited transfers effected even prior to commencement of the Act as the transferees acquired only defeasible title. With respect to the land of non-tribal, the Apex Court in Lincai Gamango and ors. V/s Dayanidhi Jena and ors. (AIR 2004 SC 3457) has laid down that non-tribal cannot claim to have acquired right or title over such land held by tribal by adverse possession, in view of Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulations (2 of 1956)- Sections 3 and 7D.