J KAMOD Vs. BOARD OF REVENUE

JUDGEMENT

(1.) BRIEF facts leading to this writ petition are that non-petitioner No. 4, Mst. Soni, filed a suit for possession against the petitioners in respect of lands bearing Khasra Nos. 795/1, 795/2, 796 and 797 measuring 25 Bighas 10 Biswas situate in village Gothiana Tehsil Kishangarh, District Ajmer. The suit was filed on the allegation that the disputed land was mortgaged with the petitioners by Peeru deceased husband of the plaintiff some ten years back. After expiry of 10 years, the mortgage automatically extinguished and the plaintiff was entitled to possession. In the alternative it was also pleaded that for redeeming the mortgage, the defendant-petitioners had stated that the land had been sold to them by Peeru on September 13, 1963. It was thus alleged that since the husband of the plaintiff was a member of Scheduled Caste, any sale which was made in favour of the petitioners, was violative of section 42 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act') and on this account also the plaintiff was entitled to a decree for possession.

(2.) THE defendant-petitioners in the written statement totally denied the fact of mortgage and further asserted that the land in question was in their cultivatory possession since long and Peeru also sold his khatedari rights on September 13, 1963 for a consideration of Rs. 360/ -. It was also pleaded that the sale was made by Peeru prior to the amendment of Section 42 of the Act, which came into force with effect from May 1, 1964 and as such the sale was not violative of Section 42 of the Act and in the alternative they had also acquired khatedari rights under section 19 of the Act. On the basis of the above pleadings, learned Assistant Collector, Kishangarh, framed several issues and after recording oral and documentary evidence held that Peeru was the khatedar tenant of the land in question. So far as the factum of mortgage is concerned, the same was not held proved. THE sale being unregistered and in violation of section 42 of the Act, had no validity and was a mere waste paper. It was further held that the suit was within limitation and in the result the suit of the plaintiff was decreed. THE defendant-petitioners aggrieved against the judgment of the Assistant-Collector filed an appeal. THE Revenue Appellate Authority also by judgment dated March 15, 1977, dismissed the appeal and upheld the order of the Assistant Collector. THE learned Revenue Appellate Authority while dealing with the question of alleged sale dated September 13, 1963, in favour of the petitioners discussed the oral and documentary evidence and held that even in fact such sale was not proved by the defendants. It was also found that the defendants failed to prove their possession prior to October 15, 1955. Even the receipts of rent filed by the defendants did not make a mention of the disputed land and in any case, the same related to the period after 1955. THE Jamabandis filed by the plaintiff consisting of Samvat years 2021 to 2024 also mention the name of Peeru as Khatedar. As regards oral evidence of long possession produced by the defendant-petitioners the learned Revenue Appellate Authority observed that in case the defendant-petitioners claimed to be in possession prior to October 15, 1955, then they ought to have taken proceedings for recording khatedari in their favour but no such steps were taken.

(3.) SO far as the amendment made by Act No. 12 of 1964 dated May 1, 1964, in Section 42 is concerned, the only change made was that a further prohibition was put that the sale, gift or bequest by a khatedar tenant of his interest in the whole or part of his holding shall be void if such sale, gift or bequest is by a member of a Scheduled Caste in favour of a person, who is not a member of Scheduled Caste or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe. By the Second Amendment Act No. 28 of 1956, which came into force on September 22, 1956, the prohibition was that no khatedar tenant being a member of a Scheduled Caste or a Scheduled Tribe shall so transfer his interest in the whole or a part of his holding to any person, who is not a member of a Scheduled Caste or a Scheduled Tribe. But now by Act No. 12 of 1964 which came into force on May 1, 1964 such transaction has been held to be void, if it is made 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 above amendment by Act No. 12 of 1964 though brought into force on May 1, 1964 i. e. after the alleged sale on September 13, 1963, but the fact remains that even the earlier proviso which was added to Section 42 by Second Amendment Act No. 28 of 1956, also prohibited any transfer of interest in holding by a member of a Scheduled Caste or a Scheduled Tribe to any person who was not a member of Scheduled Caste or a Scheduled Tribe In the face of such provision existing even on September 13, 1963, any transfer made by Peeru, who was admittedly a member of Scheduled Caste in favour of defendant-petitioners, who were not the members of Scheduled Caste or Scheduled Tribe was totally prohibited.