Rajasthan High Court

Ramesh Chand @ Ramesh Prakash vs Smt Ram Kanwari And Ors on 22 August, 2024

Author: Sudesh Bansal

Bench: Sudesh Bansal

    [2024:RJ-JP:30424]

            HIGH COURT OF JUDICATURE FOR RAJASTHAN
                        BENCH AT JAIPUR

                     S.B. Civil Writ Petition No. 2907/2005

    Ramesh Chand @ Ramesh Prakash S/o Shri Prabhu Daya, R/o
    Aklera, District Jhalawar.
                                                                        ----Petitioner
                                        Versus
    1. Smt. Ram Kanwari (since deceased through her LRs)
    1/1 Ram Kalyan Meena, aged about 52 years,
    1/2 Mohan Lal Meena, aged about 48 years,
    1/3 Ramswaroop Meena, aged about 40 years,
            All sons of Shri Kanhaiya Lal Meena, R/o Village Tharol,
    Tehsil Aklera, District Jhalawar (Raj.).
    2. State of Rajasthan, through the Tehsildar, Tehsil Aklera,
    District Jhalawar.
    3. Board of Revenue, Ajmer, through its Registrar.
    4. Revenue Appellate Authority, Kota.
    5. The SDO Aklera, District Jhalawar.
                                                                     ----Respondents


    For Petitioner(s)         :     Mr. Adhiraj Singh for
                                    Mr. Devendra Raghava
    For Respondent(s)         :     Mr. Neeraj Batra, GC



                  HON'BLE MR. JUSTICE SUDESH BANSAL

                                     Judgment

    Judgment reserved on                                       : July 10th, 2024
    Judgment Pronounced on                                     : August 22nd ,2024
BY THE COURT:

1. Petitioner is plaintiff, who has preferred instant writ petition,

purportedly under Article 226 of the Constitution of India which

indeed must have been filed under Article 227 of the Constitution

of India, challenging the judgment dated 07.10.2003 passed by

the Board of Revenue, dismissing his Second Appeal No.54/2002

[2024:RJ-JP:30424] (2 of 8) [CW-2907/2005]

and affirming the judgment dated 17.07.2000 passed by the

Revenue Appellate Authority, Kota in Appeal No.146/2000, so also,

the judgment dated 26.06.2000 passed by the Sub-Divisional

Officer, Aklera in Revenue Suit No.1197/1994 whereby and

whereunder, the plaintiff's suit filed under Sections 88 and 91 of

the Rajasthan Tenancy Act for declaration of khatedari rights on

the land in question, on the basis of adverse possession has been

dismissed on merits.

2. Heard counsel for petitioner and counsel for State at length

and perused the record.

3. The relevant facts, in brief, as culled out from the record are

that the petitioner-plaintiff instituted a revenue suit on 16.03.1994

against one Smt. Ram Kanwari and State of Rajasthan through

Tehsildar under provisions of Sections 88 and 91 of Rajasthan

Tenancy Act, asserting that land of Khasra No.223 (old Khasra

No.186) measuring 4 bigha 3 biswa at village Tharol, Tehsil

Aklera, District Jhalawar is recorded in the revenue record, in

khatedari of respondent-defendant Smt. Ram Kanwari (a widow

lady, Member of Scheduled Tribe being by caste Meena) but

indeed plaintiff claimed to have cultivatory possession of such land

since 1967 continuously. Thus the plaintiff, asserting his long

possession over the khatedari land of defendant, claimed to

acquire khatedari rights by virtue of having adverse possession on

the land in question and made a prayer of declaration of his

khatedari rights over the land in question.

4. Such revenue suit was resisted by the respondent-defendant

Smt. Ram Kanwari stating inter alia that defendant is a widow lady

[2024:RJ-JP:30424] (3 of 8) [CW-2907/2005]

of Scheduled Tribe caste and is recorded khatedar of the land in

question. She submitted that at one point of time, plaintiff was

permitted to cultivate her land on sharing basis, hence, his

possession was merely a permissive possession, that too has been

removed and she has got back the actual possession of the land in

question from the plaintiff, therefore, the case of plaintiff to claim

adverse possession over the land in question was empathetically

denied. In addition, defendant opposed the suit on the ground

that since she is a member of Scheduled Tribe, therefore, on the

land of her khatedari rights no declaration of khatedari rights in

favour of plaintiff who is person of General Caste can be made

because same would be in breach of the spirit of Section 42 of

Rajasthan Tenancy Act, 1955.

5. The suit was considered and decided on merits by the Sub-

Divisional Officer Aklera and the fact that prior to institution of the

present revenue suit, defendant Smt. Ram Kanwari had filed a suit

against plaintiff under Section 183 of Rajasthan Tenancy Act

bearing Case No.505/75 to take possession of the land in question

from him, which had been dismissed vide judgment dated

29.06.1978 by Pargana Officer, Akhlera was taken into

consideration. It was observed that when that previous suit was

remanded, such suit came to be dismissed in default on

03.12.1982. While considering this fact, the Court relied upon the

contention of the respondent that in the meanwhile, she had

obtained the actual possession of the land in question from

plaintiff and therefore, she did not pursue her suit under Section

183 of the Rajasthan Tenancy Act and got the same dismissed in

[2024:RJ-JP:30424] (4 of 8) [CW-2907/2005]

default and for non-prosecution. Thus, the Sub-Divisional Officer,

Aklera did not find the possession of the land in question with

plaintiff and consequently, his suit for declaration of the khatedari

rights on the basis of adverse possession was dismissed on merits

vide judgment dated 26.06.2000.

The Sub-Divisional Officer also held that in view of

undisputed fact that khatedari of the land in question is recorded

in the name of defendant who is a member of Scheduled Tribe

Category, therefore, over the agricultural land belonging to

Scheduled Tribe Category person, khatedari rights in favour of a

person belonging to General Caste cannot be declared in view of

specific bar under Section 42 of the Rajasthan Tenancy Act.

6. Plaintiff preferred appeal against the judgment dated

26.06.2000 which was heard and dismissed on merits by the

Court of Revenue Appellate Authority and Land Settlement Officer,

Kota vide its judgment dated 17.07.2000.

7. Plaintiff preferred second appeal under Section 224 of the

Rajasthan Tenancy Act, before the Board of Revenue and his

second appeal has also been dismissed on merits vide judgment

dated 07.10.2003. The Board of Revenue affirmed the findings

that the initial possession of plaintiff over the land in question was

merely permissive, which cannot be converted into adverse

possession. Further, the Board of Revenue also affirmed the

proposition of law that on the khatedari land of person belonging

to Scheduled Tribe category, khatedari rights in favour of a person

belonging to General Caste cannot be declared on the basis of

adverse possession.

[2024:RJ-JP:30424] (5 of 8) [CW-2907/2005]

8. Having gone through the judgment passed by the Sub-

Divisional Officer, Aklera, which has been affirmed in first appeal

by the Revenue Appellate Authority and further in second appeal

by the Board of Revenue, this Court finds that there are

concurrent findings of fact of all three Courts that the possession

of plaintiff over the land in question was merely permissive

possession, since the respondent-defendant, who was a widow

lady of Scheduled Tribe caste, permitted cultivation of her

khatedari land through plaintiff on sharing basis. Further there are

findings against plaintiff that the possession of land in question

has been taken by the defendant, thus the claim of plaintiff to

have continuous and long possession over the land in question has

been disbelieved by all the Courts.

9. It is settled proposition of law that a permissible possession

cannot be converted into adverse possession unless it is proved

that the person in possession asserted and acquired adverse title

to the property to the knowledge of the true owner for a period of

12 years and above. Such proposition of law has been expounded

by the Hon'ble Supreme Court in case of Bhura Mogiya & Ors.

Vs. Satish Pagariya & Ors. reported in [(2001) 9 SCC 385].

10. In an another judgment delivered by the Hon'ble Supreme

Court in case of Konda Lakshmana Bapuji Vs. Govt. of A.P. &

Ors. reported in [(2002) 3 SCC 258], it was held in Para No. 53

as under:

"53. The question of a person perfecting title by adverse possession is a mixed question of law and fact. The principle of law in regard to adverse possession is firmly established. It is a well-settled proposition that mere possession of the land,

[2024:RJ-JP:30424] (6 of 8) [CW-2907/2005]

however long it may be, would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animus possidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus possidendi, the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist. The length of possession to perfect title by adverse possession as against the Government is 30 years."

11. In view of aforereferred proposition of law coupled with the

fact findings recorded by all the Courts against plaintiff in respect

of having a permissible possession over the land in question and

further possession of the land in question has been obtained by

the respondent-defendant, this Court does not find any illegality

and perversity in the judgments impugned, dismissing plaintiff's

suit for declaration of khatedari rights over the lands in question

on the basis of adverse possession.

12. Coming to the spirit of Section 42 of Rajasthan Tenancy Act,

it has also been opined in several judgments delivered by the

Rajasthan High Court that by virtue of doctrine of adverse

possession, right, title or interest could not have been acquired in

favour of a person of General Caste against the agricultural land

belonging to a person of Scheduled Caste or Scheduled Tribe

Category, because that would be against the mandate of Section

[2024:RJ-JP:30424] (7 of 8) [CW-2907/2005]

42 of the Rajasthan Tenancy Act. To buttress such proposition of

law, reference of a judgment of Coordinate Bench of Rajasthan

High Court, in case of Babu Singh vs. State of Rajasthan,

(RLW 1998(1) Raj. 507), in which the Court considered the

question of acquisition of khatedari right by virtue of adverse

possession in favour of person of non-Scheduled Caste/ Scheduled

Tribe Caste, on the land belonging to Scheduled Caste category,

held that same will be in contravention of the provisions of Section

42 of the Act. The relevant portion of the aforesaid judgment is

being extracted hereunder:

"15. This Court had occasion to consider the question whether khatedari rights can be acquired by adverse possession even if the sale was in contravention of Sec.42 of the Tenancy Act in the case of Khuman Mal vs. Bheru (1994 RBJ 50). In that case, it was observed by the Division Bench that Section 42 of the Rajasthan Tenancy Act prohibits transfer of land by khatedar tenant belonging to Scheduled Caste to a person who does not belong to Scheduled Caste and the prohibition in this Section is absolute, and that as the sale of land held by a member of Scheduled Caste cannot be transferred by way of sale, gift or bequest or even by decree of a competent court, the same cannot be allowed to be entered in the name of persons who are seeking khatedari rights on the basis of possession. It was further observed that under Section 88 a purchaser may acquire by adverse possession khatedari rights provided that the acquisition of khatedari is not specifically prohibited by law, which means that if a person, claiming to have acquired khatedari rights by contravention of any provisions of law prohibiting or invalidating the

[2024:RJ-JP:30424] (8 of 8) [CW-2907/2005]

transaction which has occasioned such adverse possession or if any such provision of any State was thereby circumvented, will not acquire the khatedari rights. It is, thus, settled legal position that when a person has purchased the land in contravention of the provisions of Sec.42 of the Tenancy Act, he cannot acquire khatedari rights by adverse possession."

(emphasis supplied)

13. Thus, it can be concluded that the fact findings as well as the

legal proposition recorded by the Court of Sub-Divisional Officer

and affirmed by the Revenue Appellate Authority and Board of

Revenue, are neither perverse nor suffer from any infirmity or

jurisdictional error which causes miscarriage of justice. The

judgments delivered by all the Courts are well within jurisdiction

and do not warrant any interference by the High Court in exercise

of its writ jurisdiction.

14. As a final result, the writ petition is not liable to succeed and

same is hereby dismissed.

15. All pending application(s), if any, stand(s) disposed of.