CHHAIL SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the appellants, who are ultimate transferees against the judgment of the learned Single Judge dt. 10.3.2008, dismissing the writ petition, thereby upholding the order of the Board of Revenue Annexure -11 dt. 12.3.1999, whereby the learned Board of Revenue had accepted the reference made by the Collector, Jalore, vide order dt. 17.8.1998, making reference to the effect, that the judgment dt. 30.7.1969 passed by the Assistant Collector, Jalore in Suit No. 4/69 is violative of the provisions of Section 42(b) of the Rajasthan Tenancy Act,1955, hereafter to be referred to as the Act of 1955. According to which the land of Scheduled Caste has been mutated in favour of a person not belonging to Scheduled Caste, and recommended for restoration of the land in favour of the original Khatedars, being the Scheduled Caste persons, who are legal representatives of Padamiya Bhambhi.

(2.) THE brief facts of the case, as appearing from the documents annexed with the writ petition, are, that on 13.2.1969 one Guman Singh Rajput r/o Moodi, Tehsil Jalore filed a suit against one Padamiya s/o Jeeva Bhambhi r/o Paharpura Tehsil Jalore in the Court of Assistant Collector, Jalore under Section 88 -89 of the Rajasthan Tenancy Act, alleging inter alia, that the land bearing Khasra No. 175 measuring 19 bigha 18 biswas situate in village Moodi, hereafter to be referred to as the land in question, was in Khudkasht of the plaintiff since time immemorial, including at the time of settlement. However, since the defendant was Hali of the plaintiff, and was working as such, therefore, either by mistake of settlement, or by collusion, in Parcha Lagan, instead of name of the plaintiff, name of the defendant was entered, which is wrong. Then, it was alleged, that at the time of settlement the defendant was only a paid servant of the plaintiff, and was cultivating as such, and the Girdawari went on being recorded in the name of the defendants so long as the defendant continued to cultivate. Thereafter, it started being recorded in the name of the plaintiff, and the land Revenue is being paid by the plaintiff. It is then alleged, that the defendant is a resident of Paharpura, and for the last 4 -5 years he has left the job, and went away to Paharpura, and as such the plaintiff is cultivating the land. With this, it is alleged, that on 22.7.1968, when it rained, the plaintiff went to cultivate, the defendant threatened, contending that the land is in his Khatedari, and therefore, the plaintiff could not cultivate. This is said to be the cause of action. On these pleadings it was prayed, that the plaintiff be declared as Khatedar of the land in question, necessary changes in the revenue records be ordered to be made, and injunction be granted against the defendant, not to interfere with the plaintiff's possession. It appears, that the suit proceeded ex -parte, and the plaintiff led some oral evidence, deposing about his possession, and also deposing about the defendant being Hali for some 2 -3 years only, and having not remained Hali after settlement. Likewise some more oral evidence was also led about plaintiff's cultivation. The learned Assistant Collector vide judgment dt. 30.7.1969, cataloging the plaintiff's evidence, decreed the plaintiff's suit, holding that there is no doubt about the plaintiff's old possession since settlement, and a decree was granted, to the effect, that the plaintiff is a Khatedar of the land in question.

(3.) SINCE the land was recorded earlier in the name of Padamiya, a member belonging to Scheduled Caste, his legal representatives filed an application before the Collector in the year 1994, contending inter alia, that the land in question is their ancestral land, and is of their Khatedari, and since Padamiya is a member of Scheduled Caste, his Khatedari rights could not be interfered, nor any judgment or decree could be passed in that regard. With this it was alleged, that recently the non -petitioners No. 7, 8 and 9 therein, i.e. being Aaskanwar, Allarakh, Rustom Alia, have started illegally harassing them, and raising demand for money, on the pretext of the land being of their Khatedari. It is alleged, that on enquiry it transpired that Guman Singh fraudulently obtained a decree against Padamiya on 30.7.1969, which decree is in violation of the provisions of Section 42 of the Act of 1955, and is therefore, liable to be set aside by way of proceedings of reference. It is also alleged that Padamiya was ancestral tenant of the land in question, at the time of first settlement, as well as at the time of Jagir resumption, Padamiya was cultivating the land, and thus Padamiya legally became Khatedar tenant.