Rajasthan High Court - Jodhpur
Jai Prakash vs B.O.R. And Ors on 18 September, 2023
Bench: Pushpendra Singh Bhati
[2023:RJ-JD:29621]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 3417/1997
Jai Prakash
----Petitioner
Versus
Board of Revenue, Ajmer & Ors.
----Respondent
For Petitioner(s) : Mr. Devesh Purohit
For Respondent(s) : Mr. I.S. Pareek
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved on 13/09/2023
Pronounced on 18/09/2023
1. The matter pertains to the year 1997, thus, was listed under
the category "Oldest Cases for Early Disposal".
1.1. This petition under Articles 226 & 227 of the Constitution of
India has been preferred claiming the following reliefs:
"It is, therefore, respectfully prayed that this writ
petition may kindly be allowed and :-
(i) By an appropriate writ, order or direction, judgement and
decree passed by Board of Revenue vide judgement dated
17-7-1997, Ann/4, in Appeal No 157/89 may kindly be
quashed and set aside and judgement and decree passed by
the Revenue Appellate Authority dated 4-1-1989, Ann/3 &
3A may kindly be maintained.
(ii) By an appropriate writ, order or direction, Respondents
be restrained from interfering with the possession of the
Petitioner over the land in dispute.
(iii) Pending decision of the writ petition, Respondents may
be restrained from disturbing the possession of the
Petitioner over the land in dispute.
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(iv) Pending decision of the writ, if any action prejudiciation
to the interest of the Petitioner is taken, the same may also
be quashed and set aside.
(v) Any other relief, as may be deemed fit may also be
granted in favour of the Petitioner.
(vi) Costs be awarded in favour of the petitioner."
2. Brief facts of this case, as placed before this Court by
learned counsel of the petitioner are that the petitioner had
purchased a land (Araji Khasra Number 573/21 Rakba 15 biswa
with 5¼ bigha) from the respondent no.4 on 04.01.1955 through
a sale deed/agreement; thereafter, in the year 1971, the
respondent started interfering with the possession of the
petitioner. The petitioner instituted a suit for declaration under
Section 88 of the Rajasthan Tenancy Act, 1955 (hereinafter
referred to as 'Act of 1955') before the learned Sub-Divisional
Officer (SDO), Udaipur. The learned SDO vide the judgment and
decree dated 07.04.1977 dismissed the said suit.
2.1. The petitioner being aggrieved by the order dated
07.04.1977 preferred an appeal before the learned Revenue
Appellate Authority (RAA), Udaipur, which was allowed vide the
judgment and decree dated 04.01.1989 in favour of the petitioner
to the extent of 15 biswa of the land in question, while quashing
and setting aside the judgment and decree dated 07.04.1977.
2.3. The respondent no.4 (since deceased, represented by his LRs
herein) against the aforementioned judgment and decree passed
by the learned RAA, preferred a second appeal before the learned
Board of Revenue (BoR) for Rajasthan, Ajmer, which was allowed
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vide the impugned judgment dated 17.07.1997 while quashing
and setting aside the judgment dated 04.01.1989.
3. Learned counsel for the petitioner submitted that the sale
deed/agreement was executed on 04.01.1955 and the original
Section 42 of the Act of 1955 came into force on 15.10.1955,
which did not contain any restriction in regard to transfer of the
land from SC/ST to non SC/ST person(s); thereafter, the
amendment which came into force on 22.09.1956, a proviso was
added to Section 42 which restricted such transfer in favour of non
SC/ST person(s), and the next amendment came in force on
01.05.1964, whereby clause (b) was added in Section 42 which
declared such transfer from SC/ST to non SC/ST person(s) as
void.
3.1. Learned counsel further submitted that at the time of
execution of the sale deed/agreement, there was no restriction on
the transfer in question from SC/ST to non SC/ST person(s), and
thus, such restriction cannot be given retrospective effect.
3.2. In support of such submissions, learned counsel relied upon
the judgments rendered by the Division Benches of this Hon'ble
Court in the cases of Pt. Triveni Shyam Sharma Vs Board of
Revenue, Rajasthan (D.B. Civil Writ Petition No. 445 of
1961, decided on 27.08.1964). and Hari Ram & Anr. Vs State
of Rajasthan & Ors. (D.B. Civil Writ Petition No.
1675/1987, decided on 27.05.1996).
3.3. Learned counsel also submitted that the respondent before
the learned SDO had admitted in the written statement that he
had no objection if the suit of the petitioner is allowed, and
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therefore, the respondent was estopped from filing the second
appeal before the learned BoR.
3.4. Learned counsel further submitted that the petitioner had
also produced the jamabandi as well as girdawari of Samwat 2031
to 2034, wherein the name of the petitioner was clearly shown in
relation to the land in question, and therefore, the learned BoR
was not justified in law in passing the impugned judgment.
4. On the other hand, learned counsel appearing on behalf of
the respondents, while opposing the aforesaid submissions made
on behalf of the petitioner, submitted that only on the basis of the
possession, the khatedari rights cannot be created in favour of the
any person.
4.1. It was further submitted that the transfer of the land in
question was against the provisions of Section 42 of the Act of
1955. It was thus submitted that the learned BoR had passed the
impugned judgment, after duly considering the material as well as
evidence placed on record before it, and therefore, the same does
not call for any interference.
5. Heard learned counsel for the parties as well as perused the
record of the case alongwith the judgments cited at the Bar.
6. This Court observes that the petitioner had purchased the
land in question on 04.01.1955, whereafter, the respondent
started interfering with the possession of the petitioner. The
petitioner instituted a suit before the learned SDO, which was
dismissed vide the judgment and decree dated 07.04.1977.
Against the said judgment and decree, the petitioner preferred an
appeal before learned RAA, which was allowed vide the judgment
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[2023:RJ-JD:29621] (5 of 6) [CW-3417/1997]
& decree dated 04.01.1989. Thereafter, the respondent no.4
preferred a second appeal before the learned BoR, which was
allowed vide the impugned judgment, while quashing and setting
aside the judgment and decree dated 04.01.1989 passed by the
learned RAA.
7. This Court further observes that at the time of purchase of
the land in question by the petitioner, original Section 42 of the
Act of 1955 did not restrict the transfer in question from SC/ST to
non SC/ST person(s). Thereafter, the amendment dated
22.09.1956 came into force in the Act of 1955 whereby a proviso
was added regarding the restriction on such transfer from SC/ST
to non SC/ST person(s). Further clause (b) was added in Section
42 of the Act of 1955 by way of amendment dated 01.05.1964
whereby the transfer of land from SC/ST to non SC/ST person(s)
was declared as void.
8. This Court also observes that the petitioner had purchased
the land in question on 04.01.1955, and at that time, there was
no restriction on transfer of the land belonging to SC/ST person(s)
to non SC/ST person(s); the restriction was imposed at a later
stage by way of the amendment in Section 42 of the Act of 1955.
9. This Court further observes that Section 42 of the Act of
1955 cannot have a retrospective applicability and the petitioner
had purchased the land in question on 04.01.1955, and therefore,
there was no question of such restriction having any adverse
affect on such purchase.
10. Thus, in light of the above observations and looking into the
factual matrix of the present case, the present petition is
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allowed, and accordingly, the impugned judgment dated
17.07.1997 passed by the Board of Revenue is quashed and set
aside, while restoring the judgment dated 04.01.1989 passed by
the Revenue Appellate Authority. All pending applications stand
disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
SKant/-
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