Rajasthan High Court
Shallu Son Of Shri Mohd. Khan vs Board Of Revenue on 4 January, 2023
Bench: Manindra Mohan Shrivastava, Chandra Kumar Songara
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 623/1997
In
S.B. Civil Writ Petition No.3547/1991
1. Shallu son of shri Mohd Khan (sicne deceased)
through his legal representatives:
1/1 Jen Khan son of Shallu, resident of village Sherpur,
Post Noganva, tehsil Ramgarh, district Alwar.
1/2 Jeman daughter of Shallu, wife of Alam Khan
1/3 Nizri daughter of Shallu, wife of Alem Khan
1/4 Jebuna daughter of Shallu, wife of Bhutatu
All married, for the purpose of present appeal
resident of village Sherpur, Post Noganva, tehsil
Ramgarh, district Alwar.
2. Ballu since deceased through his legal heirs:
2/1 Pappal, Aged 52 Years
2/2 Mangal, aged about 50 years, (since deceased)
through his legal heirs:
2/2/1 Aasube, aged about 60 years, wife of late Shri
Mangal
2/2/2 Haakam son of late Shri Mangal, aged 32 years
2/2/3 Nababuddin son of late Shri Mangal, aged 28 years
2/2/4 Imran son of late Shri Mangal, aged about 25 years
All residents of village Sherpur, Post Noganva, Tehsil
Ramgarh, District Alwar.
2/2/5 Apijan, daughter of late Shri Mangal, married to
Jayed, resident of village Nemlam, Post Olada, Tehsil
Kamla, district Bharatpur
2/3 Jadmal Khan (deceased)
2/3/1 Tayaab Khan son of Jadmal
2/3/2 Kasam son of Jadmal
2/3/3 Ishab Khan son of Jadmal
2/4 Nasruddin
2/5 Hanif Khan (sicne deceased) through his legal heirs:
2/5/1 Janni w/o Hanif
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2/5/2 Salma d/o Hanif
2/5/3 Iqual s/o Hanif
2/5/4 Akram s/o Hanif
2/5/5 Rukshana d/o Hanif
2/5/6 Munfed s/o Hanif
2/5/7 Waris s/o Hanif
(No. 2/5/3 to 2/5/7 all are minors through mother
Smt. Janni w/o Hanif)
2/6 Saheb Khan son of Ballu
All sons of Ballu, Resident of village Sherpur, Post
Noganva, Tehsil Ramgarh, district Alwar.
Appellants/ Petitioners
VERSUS
1. Board of Revenue for Rajasthan, Ajmer
2. Additional Collector, Alwar
3. State of Rajasthan
4. Parmali son of Manni
4/1 Battu @ Prakash son of late Shri Plarmalli, aged
about 55 years
4/2 Kamlesh @ Battan, D/o late Shri Parmalli, wife of
Ramlal, aged about 65 years
4/3 Bimla @ Jummi, D/o of Late Shri Parmalli, wife of
Jaidayal, aged about 45 years.
5. Chandu (deceased)
5/1 Bhola Ram @ Kanlu (deceased) through LR's:
5/1/1 Ram kishan son of late Bhola Ram @ Kanlu
5/1/2 Kunta daughter of late Shri Bhola Ram @ Kanlu w/o
Kailash, r/o village Palwa, tehsil Rajgarh district
Alwar
5/1/3 Jal singh s/o late Shri Bhola ram @ Kanlu (deceased)
5/1/3/1 Imrati Devi w/o late shri jal singh
5/1/3/2 Sanjeev kumar w/o late shri Jal Singh R/o village
Sherpur, tehsil Ramgarh, district Alwar
5/2 Manhari
5/3 Bishan
5/4 Banshi
6. Budha since deceased through
6/1 Munshi son of Shri Budha, Beripur, via Novgava,
Ramgarh, Alwar
7. Likhi son of Shri Mangli (deceased through LR's):
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7/1 Ramji lal son of Likhi
7/2 Ram Singh son of late Likhi
Resident of Village Sherpur, Post Nougavna, tehsil
Ramgarh, Distt Alwar
7/3 Kela daughter of Shri Likhi, w/o Mangtu
7/4 Hurra daughter of late Likhi, w/o Ramswaroop
7/5 Suki daughter of late Shri Likhi, W/o Ramjilal
Resident of Raghunath Gad, Tehsil Ramgharh, Dist.
Alwar.
7/6 Maida daughter of late Shri Likhi, W/o Vikaram,
resident of Village Khoo, Tehsil Ramgharh, Dist-
Alwar
8. Chhote Lal (deceased)
8/1 Ram Chandra @ Patel
8/2 Shri Ram Kishan (deceased through LR's):
8/2/1 Rakesh S/o late Shri Ramkishan resident of Sherpur,
Tehsil Ramgarh, District Alwar.
8/2/2 Kavita D/o late Shri Ramkishan, Wife of Sanjay,
resident of village Ghamdoj, post Ghamdoj, Tehsil
Sona, Dist- Gurgaon, Harayana.
8/2/3 Seema D/o late Shri Ramkishan.
8/2/4 Sita D/o late Shri Ramkishan
8/2/5 Kela W/o late Shri Ramkishan
All resident of resident of Sherpur, Tehsil Ramgarh,
Dist- Alwar.
8/3 Shri Man Singh
All resident of Sherpur, Tehsil Ramgarh, District
Alwar.
8/4 Smt. Ram Devi d/o Chote Lal, resident of village
Papda via Pahadi, tehsil Pahadi, dist- Bharatpur
9. Chuha since deceased through legal heirs:
9/1 Satpal
9/2 Mangli
Both sons of Chuha
10. Kishori s/o Nandu (decease through LR's):
10/1 Kalli widow of late Kishori
10/2 Kutar son of late Kishori
10/3 Jodha son of late Kishori
10/4 Omveer son of late Kishori
10/5 Mahesh son of late Kishori
10/6 Surri @ Suresh son of late Kishori All resident of
Village Sherpur, Post Naugavna, Tehsil Ramgarh,
Dist- Alwar.
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10/7 Shaukantala daughter of Kishori, W/o Surjeet,
resident of Raghunath gad, Tehsil Ramgarh, Dist-
Alwar.
11. Hardeva (deceased)
11/1 Phool Singh
11/2 Sohan lal
12. Sampat (deceased)
12/1 Pyarelal (deceased) through Lrs:
12/1/1 Rajesh son of late Shri Pyare Lal
12/1/2 Vijay Kumar son of late Shri Pyare lal
12/1/3 Ravi kimar son of late Shri Pyare lal
12/1/4 Surender son of late Shri Pyare lal
All resident of village Sherpur, Tehsil Ramgarh, Dist-
Alwar.
12/1/5 Smt. Geeta wife of Shri Kailash, D/o late Shri Pyare
Lal
12/1/6 Sunita w/o Shri Sultan, D/o late Shri Pyare Lal
Resident of village and Post Ochchar, Tehsil
Laxmangarh, Dist- Alwar
12/1/7 Smt. Aneeta w/o Shri Ram Kishan d/o late Shri Pyare
Lal
Resident of village Aldhana, Tehsil Govindgarh, Dist-
Alwar.
13. Sohanlal (deceased)
13/1 Ram Singh
13/2 Ram Swaroop
14. Ramdhan (deceased)
14/1 Dhanni Ram (deceased through Lrs):
14/1/1 Sunita D/o late Shri Ratan lal
14/1/2 Ramniwas S/o late Shri Ratan lal
14/1/3 Ramesh Chand S/o late Shri Ratan lal
14/1/4 Reena D/o late Shri Ratan lal
14/1/5 Meena D/o late Shri Ratan lal
All residents of village Sherpur, Tehsil Ramgarh, Dist-
Alwar.
15. Khemu (deceased)
16. Kishore son of Nandu
17. Nathu s/o Mannu deceased through legal heirs:
17/1 Parli wife of Nathu
17/2 Shankar son of Nathu
17/3 Ramswaroop son of Nathu
Resident of village Sherpur, Post Nogaon, Tehsil
Ramgarh, Dist- Alwar.
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17/4 Sarbati wife of Chandaram d/o Nathu resident of
village Nangalteju, Tehsil Bawal, Dist- Rewari,
Haryana
17/5 Phulwati wife of Yashpal d/o Nathu, resident of
village Bas Birpal Nagar, Tehsil Kishangarh Bas, Dist-
Alwar.
18. Mozi son of Sugda (deceased)
18/1 Sampati wife of late Shri Mozi
18/2 Ratan son of Mozi
18/3 Kiran son of late Mozi
18/4 Krapu son of late Mozi
18/5 Suresh son of late Mozi
18/6 Lekhraj son of late Mozi
All residents of village Sherpur, Tehsil and district
Alwar.
18/7 Kasturi daughter of late Mozi, wife of Rupo
18/8 Kiran Devi daughter of late Mozi, wife of Hemu
18/9 Phoolan Devi, daughter of late Mozi, wife of
Bhagchand.
7 to 9 resident of village Neemli, Tehsil Tijara, Alwar.
18/10 Kesar, daughter of late Mozi, wife of Mangi lal,
resident of village Ghoda ka Thana, Tehsil Kishangarh
Bas, Alwar.
19. Chaju (deceased)
All resident of Sherpur, Tehsil and Dist- Alwar.
Repondents
Connected With
D.B. Special Appeal Writ No. 467/1997
1. Parmali son of Shri Manni, resident of village Sherpur
Tehsil Ramgarh, Distt. Alwar (died on 31.12.2004
abated upto part of the Parmali on 07.05.2008)
1/1. Battu @ Prakash son of Parmali aged 55 years,
1/2. Kamlesh @ Battan d/o Parmali wife of Ramlal aged
about 65 years,
1/3. Bimla @ Jummi d/o late Parmali wife of Jaidayal aged
45 years,
2. Jassi son of Shri Kundan, resident of village Sherpu,
Tehasil Ramgarh, Distt. Alwar (Died on 18.07.2010
LRs are not come on record).
2/1. Chandgi wife of late Jassi,
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2/2. Ram Prasad s/o late Jassi,
2/3. Ramesh s/o late Jassi,
2/4. Vijay s/o late Jassi,
2/5. Pintu s/o late Jassi,
All r/o village Sherpur, Tehasil Ramgarh, Distt. Alwar.
2/6. Tara Bai d/o late Jassi w/o Rakesh r/o Belaka,
2/7. Rambatti d/o late Jassi w/o Sh. Chand r/o village
Kolani, Teh. Ramgarh, Distt. Alwar.
3. Chandu (deceased)
3/1. Bhola Ram @ Kanlu
3/2. Manhari
3/3. Bishan
3/4. Bansi
4. Budha since deceased through
4/1. Munshi son of late Shri Budha, Beripur via Novgava,
Ramgarh, Alwar.
5. Likhi son of Shri Mangli.
6. Chhote Lal (deceased)
6/1. Ram Chandra @ Patel
6/2. Shri Ram Kishan
6/3. Shri Man Singh
All resident of Sherpur, Tehasil Ramgarh, Distt. Alwar.
6/4. Smt. Ram Devi d/o late Chhote Lal resident of village
Papda via Pahadi, Tehasil Pahadi, Distt. Bharatpur.
7. Chuha since deceased through legal heirs:
7/1. Satpal
7/2. Mangal
Both sons of Chuha.
8. Kishori son of Nandu
9. Hardeva (deceased)
9/1. Phool Singh
9/2. Sohan Lal
10. Sampat (deceased)
10/1. Pyarelal (deceased) through LRs:
10/1/1. Rajesh son of late Pyarelal
10/1/2. Vijay Kumar son of late Shri Pyarelal
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10/1/3. Ravi Kumar son of late Shri Pyarelal
10/1/4. Surendra son of late Shri Pyarelal
All resident of village Sherpur, Tehasil Ramgarh,
Distt. Alwar
10/1/5. Smt. Geeta w/o Shri Kailash d/o late Shri Pyarelal
resident of village Ochchar, Tehasil Laxmangarh,
Distt. Alwar.
10/1/6. Sunita w/o Shri Sultan d/o late Shri Pyarelal, resident
of village Ochchar, Tehasil Laxmangarh, Distt. Alwar.
10/1/7. Smt. Anita w/o Shri Ram Kishan d/o late Shri
Pyarelal, resident of village Aldhana, Tehasil
Govindgarh, Distt. Alwar.
11. Sohan Lal (deceased)
11/1. Ram Singh
11/2. Ramswaroop
12. Ramdhan (deceased)
12/1. Dhanni Ram (deceased) through LRs:
12/1/1. Ratan Lal son of late Dhanni Ram (deceased) through
LRs:
12/1/1/1. Sunita d/o late Shri Ratan Lal
12/1/1/2. Ramniwas son of late Shri Ratan Lal
12/1/1/3. Ramesh Chand son of late Shri Ratan Lal
12/1/1/4. Reena d/o late Shri Ratan Lal
12/1/1/5. Meena d/o late Shri Ratan Lal
All resident of village Sherpur, Tehasil Ramgarh,
Distt. Alwar.
13. Khemu (deceased)
13/1. Kerodi son of late Khemu
14. Kishore son of Nandu
15. Nathu s/o Mannu deceased through legal heirs:
15/1. Parli wife of late Nathu
15/2. Shankar son of late Nathu
15/3. Ramswaroop son of late Nathu
Resident of village Sherpur, Post Nogaon, Tehasil
Ramgarh Distt. Alwar.
15/4. Sarbati w/o Chandaram d/o late Nathu r/o village
Nangalteju, Tehasil Bawqal, Distt. Rewari, Hariyana.
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15/5. Phulwati w/o Yashpal d/o late Nathu, resident of
village Bas Kirpal Nagar, Tehasil Kishangarh, Bas
Distt. Alwar.
16. Mozi son of Sugha (deceased)
16/1. Sampati w/o late Mozi
16/2. Ratan son of late Mozi
16/3. Kiran son of late Mozi
16/4. Krapu son of late Mozi
16/5. Suresh son of late Mozi
16/6. Lekhraj son of late Mozi
All resident of village Sherpur, Tehasil and District
Alwar.
16/7. Kasturi w/o Rupo d/o late Mozi
16/8. Kiran Devi w/o Hemu d/o Late Mozi
16/9. Phoolan Devi w/o Bhagchand d/o late Mozi 7 to 9
resident of village Neemli, Tehasil Tijara, Alwar.
16/10. Kesar w/o Mangilal d/o late Mozi, resident of village
Ghoda Ka Thana, Tehasil Kishangarh Bas, Alwar
17. Chaju (deceased)
All resident of Sherpur, Tehasil and District Alwar.
----Appellants
Versus
1. Board of Revenue for Rajasthan Ajmer.
2. Additional Collector, Alwar.
3. State of Rajasthan
4. Shallu son of Shri Mohd. Khan (deceased)
4/1. Jen Khan son of Shallu resident of village Sherpur,
post Noganva, Tehasil Ramgarh, District Alwar.
4/2. Jeman daughter of Shallu wife of Alam Khan,
4/3. Nizri daughter of Shallu wife of Alem Khan
4/4. Jebuna daughter of Shallu wife of Bhutatu,
All married, for the purpose of present appeal,
resident of village Sherpur, Post Noganva, Tehasil
Ramgarh, District Alwar.
5. Ballu since deceased through his legal heirs:
5/1. Pappal aged 52 years,
5/2. Mangal aged about 50 years (since deceased)
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5/2/1. Assube wife of late Shri Mangal, aged about 60 years
5/2/2. Haakam son of late Shri Mangal aged 32 years
5/2/3. Nababuddin son of late Shri Mangal aged about 28
years
5/2/4. Imran son of late Shri Mangal, aged about 25 years
All resident of village Sherpur, Post Noganva, Tehasil
Ramgarh, Distt. Alwar.
5/2/5. Apijan d/o late Shri Mangal, married to Jayed,
resident of village Nemla Post Olada, Tehasil Kamla,
Distt. Bharatpur.
5/3. Jadmal Khan (deceased)
5/3/1. Tayaab Khan son of late Jadmal Khan
5/3/2. Kasam s/o late Jadmal Khan
5/3/3. Ishab Khan son of late Jadmal Khan
5/4. Nasruddin son of late Ballu
5/5. Hanif Khan (since deceased) through his legal heirs:
5/5/1. Janni wife of late Hanif Khan
5/5/2. Salma d/o late Hanif Khan
5/5/3. Iqbal s/o late Hanif Khan
5/5/4. Akram son of late Hanif Khan
5/5/5. Rukshana d/o late Hanif Khan
5/5/6. Munfed s/o late Hanif Khan
5/5/7. Wari son of late Hanif Khan
(No.5/5/3 to 5/5/7 all are minors through mother
Smt. Janni w/o Hanif)
5/6. Sahab Khan son of late Ballu
All resident of village Sherpur, Post Noganva, Tehasil
Ramgarh, District Alwar.
----Respondents
For Appellant(s) : Mr. R.K. Mathur, Sr. Advocate with
Mr. Ram Prasad Sharma and
Mr. Manoj Bhardwaj
For Respondent(s) : Mr. M.M. Ranjan, Sr. Advocate with
Mr. Rohan Agarwal
Mr. Anil Mehta, AAG with
Ms. Archana
Mr. Manu Bhargava
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HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA
Order
04/01/2023
These two appeals arise out of the order dated
22.10.1996 passed by the learned Single Judge in S.B. Civil Writ
Petition No.3747/1991.
Appeal at the instance of appellant- Shallu is directed
against the impugned order passed by learned Single Judge,
whereby, the petition challenging the order of reference passed by
the Board of Revenue on 11.04.1999 had been dismissed.
Appeal filed by appellant- Parmali is against the
impugned order by which the learned Single Judge had quashed
the order of the Board of Revenue to the extent directions were
issued for handing over possession to the respondent- Parmali.
Shorn of unnecessary details, the factual matrix of the
case giving rise to these appeals are that the suit was filed before
the Assistant Collector, Rajgarh seeking declaration of Khatedari
Rights on pre-existing rights by way of succession. The case of the
appellants/ plaintiffs in the Revenue Suit was that the land in
question belonged to their predecessor in-title namely, Goshan.
According to the appellants, they were entitled to appropriate
declaration of their Khatedari Rights because instead of entering
their names, the name Parmali was entered in the revenue records
as Khatedar of the land in dispute. That suit was decreed by the
learned Trial Court vide judgment/decree dated 28.05.1969.
Though, no appeal was preferred against the said
judgment/decree, in course of time, Parmali sought to challenge
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the decree by filing two suits which were dismissed in default.
When the matter stood, thus, Parmali moved an application before
Assistant Collector seeking reference under Section 232 of the
Rajasthan Tenancy Act. Additional Collector made reference to the
Board of Revenue. The principal ground on which reference was
made was that the land belonged to Parmali, who belonged to
Scheduled Caste and there was a bar engrafted under Section 42
of the Tenancy Act in the matter of transfer of land by Scheduled
Caste in favour of non Scheduled Caste person.
Vide order dated 11.04.1991, the Board of Revenue
answered reference in the manner that the decree dated
28.05.1969 was nullity because the transaction between
Scheduled Caste and non Scheduled Caste was barred under the
law.
Aggrieved by the said order passed in reference, the
appellants preferred writ petition which has been dismissed by the
impugned order.
Learned Single Judge, in its order has also affirmed the
view taken by the Board of Revenue that no Khatedari Rights
would accrue in favour of the appellants in view of bar created
under Section 42(b) of the Rajasthan Tenancy Act. However, as far
as direction of handing over possession is concerned, the learned
Single Judge has set-aside that part of the order of Board of
Revenue.
Learned Senior counsel appearing for the appellants
would argue that the Board of Revenue purportedly passed an
order declaring the decree dated 28.05.1969 as nullity solely on
the ground that it was hit by the provisions contained in Section
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42(b) of Rajasthan Tenancy Act without making any inquiry much
less there being any material on record that the respondent had
executed any deed of transfer in favour of the appellant so as to
say that such a transfer was void. He would submit that main
submission of the appellant which was not appreciated by the
Board of Revenue was that decree for declaration of rights was
sought on the basis of pre-existing right as a result of devolution,
appellant claiming to be successor of one Goshan. His submission
is that as the appellant never claimed title through Parmali, there
was no question of their being any bar created under Section
42(b) of the Rajasthan Tenancy Act. The Board of Revenue neither
examined much less recorded any finding that the suit based on
title on the strength of pre-existing right was not maintainable for
any reason or it was barred by law. He would submit that as the
defendants in the suit had entered into compromise, there was no
occasion for the appellant to have established by leading oral
documentary evidence. Even if the Board of Revenue was of the
opinion that the matter requires consideration, it ought to be
remanded. He would submit that as the decree between the
parties attained finality and even suits, more than one, filed by
Parmali were dismissed in default, the reference itself was not
competent. He would submit that had there been a full fledged
trial, the appellant would have established the title on the basis of
pre-existing right.
On the other hand, learned counsel for the respondents
would submit that even though in the order making reference and
the order passed by the Board of Revenue and also before the
learned Single Judge, material was not placed with regard to any
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transfer of land, material on record show that the land in question
was notified as evacuee property and later on, the custodian
allotted the lands in favour of Parmali. Therefore, it is claimed that
Khatedari Rights were conferred on Parmali and no decree could
be granted in favour of the appellant. Learned State counsel would
also submit that the suit for declaration of Khatedari Rights was
filed without impleading State as party.
Neither the reference order made by the Assistant
Collector on 20.09.1985, nor the order of the Board of Revenue,
not even the order of the learned Single Judge refer to any
document evidencing transfer of disputed land by Parmali in
favour of the appellants. All the orders have proceeded on
assumption as if a transfer was made by Parmali in favour of the
appellants, whereas, there is no such documents on record. The
submission which have been made by learned counsel for the
respondents that the land were declared as evacuee property and
later on, the custodian allotted those lands to Paramali are not
part of record either before the Board of Revenue or the learned
Single Judge. All this would require factual inquiry and due
application of mind on all aspects of the matter after taking into
consideration the material, which have been placed before the
Board of Revenue.
Since, the order of Board of Revenue proceeds on
assumption that the transaction was hit by Section 42(b) of
Rajasthan Tenancy Act, whereas, there was no transaction as
between the appellants and Parmali, the Board of Revenue did not
consider various submissions and all the attending circumstances
of the case and only on the basis as if there was a transaction
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between appellants and Parmali proceeded to record the finding
which seems to be affirmed by the learned Single Judge.
Therefore, in view of above consideration, we are of the
view that the Board of Revenue did not examine the matter in
proper detail before recording the findings that the appellants
were not entitled to declaration of Khatedari Rights in view of
provisions contained in Section 42(b) of Rajasthan Tenancy Act.
In view of above, the order passed by the learned
Single Judge is set-aside. The order passed by the Board of
Revenue on 11.04.1999 is also set-aside and the case is
remanded to the Board of Revenue for consideration afresh after
examining and taking into consideration all the aspects of the
matter including maintainability of reference and such other
submissions as may be made by both the parties before the Board
of Revenue.
Parties shall appear before the Board of Revenue on
20.02.2023.
Both the appeals are accordingly disposed off.
(CHANDRA KUMAR SONGARA),J (MANINDRA MOHAN SHRIVASTAVA),J
Satyendra/5-6
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