MOHAN LAL AND ORS. Vs. STATE AND ORS.

JUDGEMENT

(1.) THIS writ petition filed by the petitioners Mohan Lal and Mst. Pushpa Bai respectively son and widow of late Shri Nand Kishore seeks to challenge the judgements passed by Assistant Collector dated 17.1.1977, Revenue Appellate Authority dated 31.8.1983 dismissing the first appeal and Board of Revenue dismissing the second appeal by judgement dated 26.7.1990 and review petition by judgement dated 25.9.1996.

(2.) FACTS of the case are that late Nand Kishore, predecessor in title of the petitioners died on 1.4.1992 during proceedings before the Board of Revenue. He instituted a suit on 19.1.1961 in the Court of Assistant Collector, Kota against the State of Rajasthan for declaration under Section 88 of the Rajasthan Tenancy Act to the effect that he is the khatedar -tenant of the land bearing khasra No. 848 measuring 62 bigha 7 biswa, khasra No. 387 measuring 42 bigha 13 biswa, khasra No. 411 measuring 15 bigha 20 biswa total area 120 bigha 2 biswa situated in village Luavad Tehsil Pipalda. He prayed for declaration that the entry in the parcha settlement with regard to these khasra numbers be corrected. Laxmi Shankar, whose legal representatives are respondent Nos. 5 to 8, was made party in the suit on 21.7.1964, likewise Madho Koli whose legal representatives are respondent Nos. 9 and 10 was made party on 19.12.1963 in the suit. Both of them died during the proceedings before the Revenue Appellate Authority. Navneet Lal, the brother of Nand Kishore was also party to the proceedings. His legal representatives are respondent Nos. 11 and 12 herein. According to petitioners, the land in dispute was muafi land of late Shri Laxmi Shankar. Late Nand Kishore was cultivating the land of khasra No. 848 measuring 62 bigha 7 biswa, khasra No. 387 measuring 42 bigha 13 biswa and khasra No. 411 measuring 15 bigha 2 biswa total area 120 bigha 2 biswa situated in village Luavad Tehsil Pipalda. Nand Kishore had got his share in partition 23 years before the registration of the suit. The remaining 118 bigha 8 biswa land came to the share of his brother Navneet Lal. Total joint land was thus 238 bigha 10 biswa comprising of khasra Nos. 387, 403, 404, 411, 635, 848, 849 and 851. The land of muafi was resumed under the provisions of Rajasthan Land Reforms and Resumption of Jagirs Act with effect from 1.7.1958. Since plaintiff -Nand Kishore was cultivating the land of his share as khatedar tenant, he acquired khatedari rights under the Rajasthan Tenancy Act. Plaintiff came to know that the Tehsildar had notified the land to be auctioned treating it as non -occupied land. Plaintiff made a request not to auction the same and claimed that he was khatedar of the land. It so happened that in parcha settlement of Svt. 2011, the land of khasra Nos. 387, 403, 404, 411 and 635 were shown as khudkasht of Navneet Lal, brother of the plaintiff in one share and remaining half was shown as 'maqbuja sarkar', which necessitated filing of the suit by Nand Kishore.

(3.) SHRI M.M. Ranjan, learned senior counsel for the petitioners has argued that the three courts below have committed a serious mistake of law in taking the crucial date of acquiring khatedari right by the plaintiff -Nand Kishore as 1.7.1958, the date on which the muafi of Laxmi Shankar was resumed. In this connection, the date of commencement of provisions of the Rajasthan Tenancy Act, which is 15.10.1955 is significant and for that purpose the khasra girdawari and jamabandi of Svt. 2012 would be relevant. The plaintiff had claimed khatedari rights on the ground that he had been cultivating the disputed land of khasra Nos. 387 and 411 since many years before Svt. 2012. He filed the certified copy of jamabandi of Svt. 2012 before the SDO, in which Nand Kishore and Navneet Lal have been recorded as 'Jaili' in respect of four khasra numbers, area of which was 113 bigha 18 biswa. The Jaili -tenant has the status of sub -tenant and this was the status of the plaintiff in respect of lands of khasra No. 235 and 277, out of which the new khasra Nos. 387 and 411 have been carved out. Learned senior counsel argued that the Board of Revenue in its judgement has given a finding that the status of Nand Kishore has been mentioned as that of Jaili, which proves that Nand Kishore and his ancestors were up -krishak in the disputed land since Svt. 1993. The land was shown to have been in possession of Nand Kishore from Svt. 2012 to 2015. Even then the learned Board of Revenue did not analyse the fact of Section 15 and 19 of the Rajasthan Tenancy Act whereunder the plaintiff was entitled to get khatedari rights by presumption of law. The Board of Revenue erred in law in holding that those provisions are not applicable to the land in question and that khatedari rights in such land can be acquired only under the provisions of Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (in short -'the Act of 1952'). The Board took wrongly 1.7.1958 as the crucial date for the khatedari rights in the act of 1952 and proceeding on the footing that the plaintiff should have proved his tenancy right on 1.7.1958. The finding of the Board that Section 15 and 19 of the Tenancy Act are not applicable is wholly perverse. If a persons happens to get khatedari rights under the provisions of Section 15 and 19 of the Rajasthan Tenancy Act 1955, there is no need for him now to fall back up on the provisions of the Act of 1952. The entry in parcha settlement Annexure -2 in favour of plaintiff's brother that he is tenant of half share and one half was 'Maqbuja Sarkar' is certainly wrong. The plaintiff -Nand Kishore and Navneet were two real brothers and they have joint right in cultivation. The remaining half have to be recorded in the name of Nand Kishore and not 'Maqbuja Sarkar'.