Shokat Ali vs The State Of Rajasthan
2023 Latest Caselaw 8505 Raj

[2023:RJ-JD:33013]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13703/2020

Shokat Ali S/o Shri Gulam Shah, Aged About 50 Years, B/c Musalman (Fakir), R/o Qazi Mohalla, Sardarshahar, District Churu.

----Petitioner Versus

1. The State Of Rajasthan, Through Tehsildar (Revenue) , Sardarshahar, District Churu.

2. Municipal Board, Sardarshahar, District Churu Through Chairman.

3. Executive Officer, Municipal Board, Sardarshahar District Churu.

4. Lal Shah S/o Shri Gulam Shah, B/c Fakir Musalman, R/o Qazi Mohalla, Sardarshahar District Churu.

5. Sub Divisional Officer, Sardarshahar, District Churu.

6. Land Settlement Officer Cum Revenue Appellate Authority, Bikaner Camp Churu.

7. Board Of Revenue, Rajasthan, Ajmer.

                                                                    ----Respondents


For Petitioner(s)             :    Mr. Ramawatar Singh
For Respondent(s)             :    Mr. Rajesh Parihar



                HON'BLE DR. JUSTICE NUPUR BHATI

                                        Order



Reserved on:-           05/10/2023
Pronounced on:- 13/10/2023

1. Though the matter has been listed under the 'Orders

Category', however, the matter is being heard today itself with the

consent of counsel for both the parties.

[2023:RJ-JD:33013] (2 of 16) [CW-13703/2020]

2. The instant writ petition has been preferred by the petitioner

under Articles 226 and 227 of the Constitution of India with the

following prayers:-

(i) The impugned judgment dated 03.12.2020 (Ann.12) passed by learned Board of Revenue, Ajmer in Appeal No. 64/2020, judgment dated 26.11.2019 (Ann.10) passed by learned Land Settlement Officer Cum Revenue Appellate Authority, Bikaner in Appeal No. 47/2017 and judgment and decree dated 13.06.2017 (Ann.8) passed by learned Sub Divisional Officer, Sardarshahar in Suit No. 36/1999 may kindly be quashed and set aside.

(ii) The suit filed by the petitioner-plaintiff before the learned Sub Divisional Officer, Sardarshahar District Churu may kindly be ordered to be decreed.

(iii) The respondents may kindly be restrained from interfering in peaceful possession of the petitioner over the land in question.

(iv) Any other appropriate writ, order or direction which this Hon'ble Court may kindly be passed in favour of the petitioner.

3. Brief facts of the case are that the petitioner and respondent

No.4 are brothers and possessing land in Khasra No. 100

admeasuring 50 bighas 6 biswa since before coming into force of

the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the

Act of 1955'). The petitioner and the respondent No.4 filed a suit

for declaration and correction of record under Sections 88 and 92A

of the Act of 1955 stating therein that they are having possession

over the land in question which was under the possession of their

grand father Bhole Shah since Samwat year 2012 i.e. before the

[2023:RJ-JD:33013] (3 of 16) [CW-13703/2020]

coming into force of the Act of 1955 and since then the possession

of plaintiffs is continuing.

4. In Samvat year 2012 i.e. 1955, the Act ot 1955 came into

force when the actual possession was with the father of the

petitioner and respondent No.4, namely, Shri Gulam Shah and

thus he became an absolute khatedar of the land and after the

death of the father of the petitioner-plaintiff and respondent No.4,

the land is in continuous possession of the petitioner-plaintiff and

respondent No.4 and thus they are the khatedars of the land but

being illiterate they had no knowledge of the record of the

agricultural land and the land in question was wrongly recorded as

government land by the settlement department at the time of

settlement proceedings and thus the petitioner-plaintiff and

respondent No.4 are entitled to get corrected the Revenue record

as they are having the continuous possession over the land even

before Samvat year 2012. Thereafter the patwari had informed

the petitioner-plaintiff and the respondent No.4 that as per the

revenue record they are not having the legal right over the land in

question. On 17.05.1999 the Tehsildar refused to correct the

Revenue entries therefore the petitioner-plaintiff and respondent

No.4 filed the suit (Annexure.1) with the prayer that the

agricultural land of old khasra No. 242 i.e. new khasra No. 100

admeasuring 50 bighas 6 biswas Rohi Town Sardarshahar is in

continuous use of the petitioner-plaintiff and the respondent No.4

and thus they are legal khatedars of the land.

[2023:RJ-JD:33013] (4 of 16) [CW-13703/2020]

5. During the pendency of the suit the use of the land has been

changed by the District Collector, Churu vide order dated

16.12.2004 and transferred the land to the Municipal Board

Sardarshahar and the mutation entries have also been recorded in

the name of the Municipal Board Sardarshahar vide mutation No.

645 dated 23.11.2005 therefore the petitioner-plaintiff and

respondent No.4 filed an amended suit (Annexure-2) before the

learned trial court on 10.04.2008 and also amended the prayer to

grant permanent injunction.

6. The Naib Tehsildar, Sardarshahar filed a written statement

(Annexure-3) to the suit whereby he admitted the fact that the

petitioner-plaintiff and the respondent No.4 and their family

members are cultivating the land but stated that they are

encroachers and are illegally cultivating the land and further

averred that the land in question has been set apart by the

District Collector, Churu and further transferred the land to

Municipal Board, Sardarshahar.

7. The defendant Nos. 2 and 3 (respondent Nos.2 and 3 herein)

have also filed the written statement (Annexure-4) wherein it was

stated that the land in question has been transferred to the

Municipal Board, Sardarshahar and mutation entries have been

made in the name of Municipal Board Sardarshahar therefore

Municipal Board Sardarshahar is absolute owner of the land in

question and has also taken the possession of the same with

assistance of Tehsildar and police authorities on 08.02.2007 and

[2023:RJ-JD:33013] (5 of 16) [CW-13703/2020]

further stated that petitioner-plaintiff and respondent No.4 are

encroachers on the land in question.

8. Learned trial court after hearing both the parties dismissed

the suit vide order and decree dated 13.06.2017 (Annexure-8) on

the ground that the petitioner-plaintiff and respondent No.4 are

encroachers over the land in question.

9. The petitioner-plaintiff, being aggrieved by the order and

decree dated 13.06.2017 passed by the S.D.O., preferred an

appeal (Annexure-9) before the Land Settlement officer cum

Revenue Appellate Authority, Bikaner which was dismissed vide

order dated 26.11.2019. (Annexure-10). The petitioner-plaintiff,

being aggrieved of the order dated 26.11.2019 passed by the

Land Settlement Officer cum Revenue Appellate Authority Bikaner,

preferred a second appeal (Annexure-11) before the Board of

Revenue, Ajmer which was dismissed by the Board of Revenue

vide order dated 03.12.2020 (Annexure- 12) on the ground that

the second appellate court cannot interfere in the second appeal in

concurrent finding of the courts below.

10. The petitioner, being aggrieved of the order dated 3.12.2020

(Annexure-12) passed by the Board of Revenue Ajmer, order

dated 26.11.2019 (Annexure-10) passed by the Land settlement

Officer cum Revenue Appellate Authority Bikaner and order and

decree dated 13.06.2017 (Annexure-8) passed by the learned Sub

Divisional Officer, Sardarshahar, has preferred this writ petition.

11. Learned counsel for the petitioner-plaintiff made the

following submissions:-

[2023:RJ-JD:33013] (6 of 16) [CW-13703/2020]

(a) that the learned Land Settlement Officer cum Revenue

Appellate Authority has committed an error in dismissing the

appeal because the Sub-Divisional Officer has not given thoughtful

consideration of the evidence of the parties as well as the

documentary evidence adduced by the petitioner-plaintiff and has

failed to consider the legal aspect of the matter as per the

provisions of the Act of 1955 that the petitioner-plaintiff and his

forefathers were in continuous possession of the land in question

even before coming into force the Act of 1955;

(b) that the Sub Divisional Officer, Sardarshahar has dismissed

the suit in a cursory manner while deciding the issue No.1 on the

ground that the land in question is a government land and

petitioner-plaintiff is encroacher and the continuous possession of

the petitioner-plaintiff cannot be considered and thus the finding

of the SDO, Sardarshahar is contrary to the record as well as law

because looking to the evidence adduced by the petitioner-plaintiff

as well as khasra girdawaris exhibited in the suit, it is clear that

the petitioner-plaintiff was having possession over the land in the

Samwat year 2012 and was cultivating the same;

(c) that the trial court failed to consider the legal propositions of

the case as per Section 5(23), 9 and 15 of the Act of 1955.

Section 5(23) provides that 'Khudkasht' is a person who is

cultivating the land and Section 9 of the Act of 1955 provides the

rights of 'Khudkasht'. Thus from the definition of 'Khudkasht' and

'Right of Khudkasht', it is clear that the petitioner-plaintiff is a

khatedar tenant as per Section 15 of the Act of 1955. Moreover

[2023:RJ-JD:33013] (7 of 16) [CW-13703/2020]

the petitioner-plaintiff has proved his case by adducing evidence

that at the time of coming into force of the Act of 1955 he was

having cultivatory possession over the land but the SDO, RAA and

BOR have totally failed to consider this fact while deciding the suit,

the first appeal and the second appeal.

Sections 5(23), 9 and 15 of the Rajasthan Tenancy Act 1955

are reproduced here as under:-

5. Definitions

(23) "Khudkasht" shall mean land in any part of the State cultivated personally by in estate holder and shall include (i) land recorded as Khudkasht, Sir, Havala, Niji-jot, Gharkhed in settlement records at the commencement of this Act in accordance with law in force at the time when such record was made, and (ii) land allotted after such commencement as Khudkasht under any law for the time-being. in force in any part of the State.

9. Khudkasht right-- 'Khudkasht right' means the rights conferred on holders of Khudkasht by this Act and by6 [any other law for the time being in force in the whole or any part of the State].

15. Khatedar tenants-- (1) Subject to the provisions of section 16 and clause (d) of Sub- section (1) of section 180 every person who, at the commencement of this Act, is a tenant of land otherwise than as a subtenant or a tenant of Khudkasht or who is, after the commencement of this Act, admitted as a tenant otherwise than a sub-

tenant or tenant of Khudkasht or an allottee of land under, and in accordance with, rules made under section 101 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956) or who acquires Khatedari rights in accordance with provisions of this Act or of the Rajasthan Land Reforms and

[2023:RJ-JD:33013] (8 of 16) [CW-13703/2020]

Resumption of Jagir Act, 1952 (Rajasthan Act VI of 1952) or of any other law for the time

(2)xxxxxx (3)xxxxxx (4)xxxxxx (5)xxxxxx

From a bare perusal of above mentioned provisions it is clear

that every person, having possession over khudkasht land, have

the khatedari rights and the Tehsildar (Revenue), Sardarshahar

has admitted in his reply that as per the revenue record the father

of the petitioner-plaintiff was cultivating the land since long time;

and

(d) that the Sub Divisional Officer, Sardarshahar has decided the

Issue Numbers 2,3,4,5,6 against the petitioner-plaintiff because

during the pendency of the suit the District Collector, Churu has

changed the land use and allotted the same to the Municipal

Board, Sardarshahar. Thus it cannot be said that the petitioner-

plaintiff is not entitled for declaration as the suit has been filed in

the year 1999 and land use has been changed on 16.12.2004 and

mutation entries have been made on 23.11.2005 therefore only on

the basis of conversion of land and transfer of the land in the

name of Municipal Board the right of the petitioner-plaintiff cannot

be curtailed and the SDO, Sardarshahar so also the Revenue

Appellate Authority, Bikaner and the Board of Revenue Ajmer have

totally failed to consider the material available on record while

dismissing the suit.

[2023:RJ-JD:33013] (9 of 16) [CW-13703/2020]

12. In support of his submissions learned Counsel for the

Petitioner placed reliance on the Judgments of the Hon'ble Apex

Court in the case of Deepa v/s State of Rajasthan and Ors

reported in (1996) 1 SCC 612 and further placed reliance on the

judgments of this Hon'ble court in the case of LRs. of Netram

and another vs. Board of Revenue and others. (SBCWP No.

3118/1990); Mota Ram through Lrs v/s State of Rajasthan

& Ors. (SBCWP No.3474/2002); Rajasthan Industrial

Investment Corporation Ltd. Vs. Legal Representatives Of

Tikam Das (SBCWP NO.3618/2011); State of Rajasthan Vs.

Girdhari Ram & ors. (SBCWP NO. 4208/2006) and RIICO

Vs. LRs of Prem Kishan & Ors. (D.B.SAW No.1081/2015).

13. Per Contra Learned counsel for the respondents made the

following submissions:-

(a) that all the three courts of SDO, RAA, BOR have concurrently

found that petitioner is an encroacher upon the land in dispute

which was allotted in favour of the Municipal Board, Sardarshahar

vide order dated 16.12.2004 and Hon'ble Supreme Court in

number of judgments categorically held that High Court should

refrain from interfering in the concurrent finding of the fact.

Moreover, it is an admitted case that petitioner is an encroacher

upon the land in dispute and that he is having no such possession

over the land in dispute;

(b) that the land in dispute belongs to the Municipal Board

Sardarshahar which was allotted by the District Collector, Churu

vide order dated 16.12.2004. Thereafter, the petitioner-plaintiff

[2023:RJ-JD:33013] (10 of 16) [CW-13703/2020]

challenged that order by way of filing a suit for declaration,

correction in the revenue entries and for permanent injunction

before the Sub Divisional Officer, Sardarshahar who dismissed the

suit vide order dated 13.06.2017. Thereafter the petitioner-

plaintiff filed an appeal against the said order which was also

dismissed vide order dated 26.11.2019 by the RAA, Bikaner. After

dismissal of the appeal by the RAA, Bikaner, for removal of the

encroachment of the petitioner from the land in dispute, a

committee was constituted vide order dated 30.01.2020 by the

respondents and further a letter was sent to the SDO,

Sardarshahar by the Executive Officer, Municipal Board,

Sardarshahar for appointing the Mauka Magistrate and to provide

police assistance. After various communications for providing

police assistance for removal of encroachment as there was an

apprehension of violence at the site, finally on 15.02.2020 with

the help of police and the team constituted by the Executive

Officer, land in question was released from the encroachment and

Urban Solid Waste has been dumped with the help of tractor

trolleys on the land in question which has been earmarked for the

dumping site of the Urban Solid Waste in view of the order passed

by the National Green Tribunal in Original Application no.

606/2018 in Suo-Moto petition for compliance of Solid Waste

Management Rules, 2016 by which directions were issued to all

the Chief Secretaries of the State for compliance of the Solid

Waste Management Rules, 2016;

(c) that for the compliance of the order passed by the National

Green Tribunal, E-tender was issued on 16.07.2020 for

[2023:RJ-JD:33013] (11 of 16) [CW-13703/2020]

construction of the GSB Road and construction of Material

Recovery Facility (MRF) Station at trenching ground Sardarshahar,

and work order was issued. Thereafter when the petitioner-

plaintiff tried to obstruct the work for construction of the road and

the work for which the tender was issued, the Executive Officer

again requested the SDO, Sardarshahar for providing the police

assistance vide letter dated 23.09.2020 and ultimately the road

was constructed.

(d) The petitioner-plaintiff has wrongly stated the facts in writ

petition as well as in the stay petition that he is having possession

over the land in question, whereas, the land was vacant and put

to use for dumping site of solid waste and for construction of the

treatment of solid waste. The petitioner-plaintiff was not in

continuous possession of the said land and that predecessors of

the petitioner-plaintiff were not in possession prior to coming into

force of the Act of 1955. The land in question was entered in the

name of Municipal Board vide order dated 16.12.2004 and

thereafter in the year 2007 the petitioner-plaintiff encroached over

the land in dispute and the encroachment was removed with the

help of police;

(e) that the Board of Revenue, in paragraph No. 8 of the order,

categorically held that the petitioner-plaintiff has failed to prove

his possession by any cogent documentary evidence and

moreover, proceedings under Section 91 of the Rajasthan Land

Revenue Act 1956 were also initiated against the petitioner-

plaintiff declaring him an encroacher and similarly, the RAA,

Bikaner categorically recorded the finding that the petitioner-

[2023:RJ-JD:33013] (12 of 16) [CW-13703/2020]

plaintiff has produced exhibit 1 to 6, which show different

measurements of the land and the documents belong to the Sivay

Chak Land. The SDO, Sardarshahar categorically found that the

petitioner-plaintiff was ousted from the land in dispute as the land

was allotted to the Municipal Board, Sardarshahar and therefore

the petitioner-plaintiff should have challenged the order of the

allotment before the competent authority however after the

dispossession he has again encroached the land in dispute; and

(f) the petitioner-plaintiff has tried to misinterpret the definition

of "Khudkast" as envisaged under Section 5 (23) and the

"Khudkast rights" as envisaged under section 9 of the Act of 1955

and it is an admitted fact that petitioner-plaintiff or his

predecessor has never remained in possession of the land in

dispute.

14. In support of his submissions Learned counsel for the

respondents placed reliance on the Judgments passed by this

Hon'ble Court in the case of Rajasthan Industrial Investment

Corporation ltd. Vs. Legal Representatives Of Tikam Das

(S.B.Civil Writ Petition No.3618/11). Relevant portion of the

judgment is reproduced here as under:

"10. Indisputably, the land in question was in cultivatory possession of the respondents before coming into force of the Act and therefore, they were entitled to be declared as khatedar tenant as per provisions of Section 15 of the Act. It is also not disputed that vide order dated 28.11.1956 issued by the SDO, Jodhpur, the respondents were granted khatedari rights under Section 15 of the Act. It is a matter of record that order dated 9.6.1970 and

[2023:RJ-JD:33013] (13 of 16) [CW-13703/2020]

consequent orders of Tehsildar, Jodhpur dated 24.12.1970, cancelling the patta of the land in question issued in favour of the respondents were passed without following the due process of law and for this reason, the orders dated 26.4.1974 and 18.3.1989, transferring the land in favour of RIICO and UIT were reviewed and cancelled by the Collector vide order dated 21.9.2004. It is pertinent to note that order dated 28.5.1970 cancelling the pattas of the respondents was based on order of Additional Commissioner, Jodhpur dated 13.8.1957, pertains to cancellation of the patta issued in respect of pasture land whereas, the land in question was never reserved as pasture land. A perusal of the order impugned reveals that the Board of Revenue after consideration of the material on record in its entirety and objectivity, has arrived at a categorical finding the khatedari rights conferred upon the respondents as per the provisions of Section 15 of the Act, was just and proper. In view of the matter, the land belonging to the khatedar tenant could not have been declared sivay chak by way of administrative order, which was apparently passed on the basis of the erroneous facts. Merely because, the RIICO was put into possession of the land in question on the strength of an allotment order issued acting without jurisdiction, which now stands set aside in accordance with law, no right is created in favour of the RIICO, over the land in question."

15. Learned counsel for the respondents further placed reliance

on the Judgments passed by the Jaipur Bench of this Court in the

case of Jaipur Development Authority v/s Deendayal

Purohit and Ors (SBCWP 8678/2021). Relevant portion of the

judgment is reproduced here as under:

[2023:RJ-JD:33013] (14 of 16) [CW-13703/2020]

"4.The State through Tehsildar submitted the written statement and denied the averments as stated in the plaint and prayed to dismiss the suit. However, in the written statement the petitioner-

State has admitted that the plaintiffs are agriculturists and are in cultivatory possession of the land in question. It was further stated in the written statement that during the settlement proceedings, vide order dated 3.2.1960 in MisalNo.1476/1960, the land was recorded as Siwai Chak and the land measuring 56 Bigha and 14 Biswa has been allotted to the former Jagirdars. It was further stated that the plaintiffs are in possession of the land in question as tress-passers and they cannot claim declaration as khatedars of the land in question.

27.In view of the discussion made herein above, the concurrent findings of fact recorded by the three courts below do not suffer from any infirmity as the same have been recorded after correct appreciation of evidence on record. There is no jurisdictional error in the findings recorded by the courts below which warrant interference by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India and supervisory jurisdiction under Article 227 of the Constitution of India. There is no force in these writ petitions. The same are, therefore, dismissed."

16. Heard Learned Counsel for the parties; perused the material

available on record and the judgments cited at the Bar.

17. This Court observes that the Board of Revenue Ajmer vide its

order dated 03.12.2020 observed that after perusal of the

material available on record there is no strong or documentary

evidence produced by the petitioner-plaintiff in order to prove that

the petitioner-plaintiff's ancestors were having khatedari rights

[2023:RJ-JD:33013] (15 of 16) [CW-13703/2020]

and that the petitioner-plaintiff was having the khatedari rights

even before coming into force of the Act of 1955. Moreover, the

petitioner-plaintiff has placed on record only the Khasra

Girdawaris and just on the basis of Khasra Girdawari khatedari

rights of the agriculturist or the petitioner-plaintiff for that matter

cannot be determined. Furthermore, proceedings against the

petitioner-plaintiff under Section 91 of the Rajasthan Land

Revenue Act 1956 has been initiated and illegal possession of the

petitioner-plaintiff has been removed time and again from the land

in question thus the petitioner-palintiff is repeatedly encroaching

upon the land in question and, therefore, cannot be given the

status of a Khatedar. The Board of Revenue further observed that

the SDO, Sardarshahar, while deciding the suit perused the

pleadings of both the parties and framed the issues and dealt with

every issue in detail along with all the documentary and oral

evidence and thereafter rightly passed the order dated 30.06.2017

(Annex.8) and thus there is no requirement of the second

appellate court to interfere with the order of the SDO,

Sardarshahar and RAA, Bikaner wherein there is no illegality or

infirmity with the orders passed by them.

18. This court further finds that the authorities below have

considered all the documents which petitioner-plaintiff has

exhibited and placed reliance upon, which proves that the land in

question is a Sivay Chak Land and has been rightly entered in the

name of Municipal Board, Sardarshahar by the order of the District

Collector, Churu as per the directions of the State Government.

The petitioner-plaintiff has no documentary evidence to prove his

[2023:RJ-JD:33013] (16 of 16) [CW-13703/2020]

case that the petitioner-plaintiff has khatedari rights on the land in

question. Moreover the land in question has been put to use for a

dumping site of Urban Solid Waste for compliance of the Solid

Waste Management Rules 2016. Therefore the land in question is

being used for public purposes and the petitioner-plaintiff holds no

title over it.

19. In view of the above, this Court finds that all the authorities

below have concurrently observed that the land in question is a

Sivay Chak Land and has been rightly entered in the name of

Municipal Board, Sardarshahar by the District Collector, Churu and

the petitioner-plaintiff has failed to prove that he was having

khatedari rights over the land in question.

20. It is well settled proposition of law that where there are

concurrent finding of facts, this Court should not interfere with the

same unless there is a patent irregularity or illegality. In the case

in hand, no irregularity or illegality whatsoever has been proved

by the petitioner-plaintiff.

21. As an upshot of the discussion made herein above, the

present writ petition is devoid of merit and thus is dismissed.

22. The Stay application as well as all other pending applications,

if any, are also dismissed.

(DR. NUPUR BHATI),J

-/skm/-

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