[Cites 11, Cited by 0]

Rajasthan High Court - Jodhpur

Pani Devi And Ors vs Board Of Revenue,Ajmer And Ors. ... on 22 January, 2026

Author: Nupur Bhati

Bench: Nupur Bhati

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN

                                  AT JODHPUR


                    S.B. Civil Writ Petition No. 5423/2017

1.       Pani Devi W/o Bastiram, By Caste Mali R/o Bera Badliya,
         Guda Kala Tehsil Sojat Dist. Pali
2.       Kanaram S/o Bhopalram, R/o Guda Kala Tehsil Sojat Dist.
         Pali
3.       Legal Representative Bachna Ram Son Of Deva Ram As
         Under-
         3/1 Verda Ram S/o Bachna Ram,
         3/2 Javta Ram S/o Bachna Ram,
         3/3 Ghevar Ram S/o Bachna Ram,
         3/1 to 3/3 R/o Gulla Kalla, Tehsil Sojat, District Pali.
         3/4 Sua Devi D/o Bachna Ram, (wife of Bhunda Ram) R/o
         Musalia, Tehsil Marwar Junction, District Pali.
                                                                    ----Petitioners
                                       Versus

1.     Board Of Revenue, Ajmer Through Its Registrar.
2.     Sub Divisional Officer, Sojat, District Pali
3.     Additional Commissioner, Jodhpur.
4.     Tehsildar, Sojat District Pali.
5.     Narayan S/o Sh. Pratap, R/o Guda Chutra Tehsil Sojat
       District Pali.
6.     Sarpanch, Gram Panchayat Guda Kala Tehsil Sojat District
       Pali.
7.     Pawan Kanwar W/o Girdhari Singh Rajput, R/o Kerpura
       Tehsil Devgarh Near Kayal Station District Rajsmand.
8.     Kailash Kanwar W/o Banne Singh, R/o Kerpura Tehsil
       Devgarh District Rajsamand.
9.     Arjun Singh S/o Bhim Singh,
10.     Ishwar Singh S/o Bhim Singh,
11.     Kailash Kanwar W/o Bhanwar Singh,
 12.    Bhawani Singh S/o Bhanwar Singh,
 13.    Sugan Kanwar W/o Bhim Singh,
 14.    Bhanwar Singh S/o Govind Singh,
 15.    Mangu Singh S/o Govind Singh,
 16.    Bhikh Singh S/o Khim Singh,
 17.    Ladu Singh S/o Bag Singh,
 18.    Kalyan Singh S/o Bag Singh,
 19.    Dungar Singh S/o Hem Singh,
 20.    Shyam Singh S/o Hukam Singh,
        Respondent No. 9 To 20 All Are R/o Guda Chutra Tehsil
        Sojat District Pali.
 21.    Gheesu Singh S/o Jodh Singh


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 22.     Nand Kanwar W/o Hukam Singh
 23.     Narpat Singh S/o Bhanwar Singh
 24.     Kalu Kanwar W/o Bhanwar Singh,
         Respondent Nos. 21 To 24 R/o Guda Chutra Tehsil Sojat
         District Pali.

                                                                  ----Respondents


For Petitioner(s)          :     Mr. Moti Singh.
For Respondent(s)          :     Mr. Bharat Shrimali.
                                 Mr. S.R. Paliwal, G.C.



               HON'BLE DR. JUSTICE NUPUR BHATI

Order

22/01/2026

1. The instant writ petition has been filed with the following

prayers:-

"1. Court may be pleased to issue appropriate writ, order, direction quash the judgement and order dated 21.4.2017 (Annexure-7) passed by learned Board of Revenue, Ajmer in Revision No. 1020/2010/PALI Kanaram V/S Narayanram & Ors, and the order dated 11.3.2010 (Annexure-5) passed by learned Additional Commissioner, Jodhpur in appeal No. 155/2006 may kindly be quashed and set aside.

2. Court may be pleased to issue appropriate writ, order, direction confirm the judgement and order dated 15.9.2006 (Annexure-3), passed by learned Sub Divisional Officer, Sojat in mutation appeal no. 3/2005 Narayan v/s Sarpanch & Ors."

2. Brief facts, as stated in the writ petition, are that the present

controversy arises out of mutation No. 23 dated 20.09.1962

sanctioned by the Gram Panchayat, Guda Kala, Tehsil Sojat. After

a lapse of about 43 years, respondent-Narayan filed an appeal on

11.08.2005 (Annex.2) before the Sub-Divisional Officer, Sojat,

assailing the said mutation on the ground that the Gram

Panchayat lacked jurisdiction to sanction mutation in view of

Section 19 of the Rajasthan Tenancy Act. The learned SDO

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registered the appeal subject to limitation and, vide judgment

dated 15.09.2006, dismissed the same holding that the appeal

was grossly time-barred, no sufficient cause was shown for

condonation of delay, mutation proceedings are fiscal in nature,

and that rights of recorded khatedars and third-party transferees

cannot be unsettled in summary proceedings. Aggrieved,

respondent-Narayan preferred a second appeal before the

Additional Commissioner, Jodhpur, who allowed the appeal by

judgment dated 11.03.2010, observing that the mutation entry

suffered from clerical defects and that the Gram Panchayat had no

jurisdiction, as the competent authority under Section 19 of the

Rajasthan Tenancy Act is the Assistant Collector and mutation

could thereafter be sanctioned only by the Tehsildar. Challenging

the said order, the petitioners and others filed a revision before

the Board of Revenue contending, inter alia, that there was no

finding on perversity or arbitrariness in the SDO's order, no proper

condonation of an inordinate delay of 43 years, and that third-

party rights created through registered sale deeds could not be

disturbed in fiscal proceedings. The Board of Revenue, however,

dismissed the revision by judgment dated 21.04.2017 holding that

the mutation was illegal and void ab initio, could be questioned at

any time, and that respondent-Narayan was a minor at the time

of sanction of mutation in 1962, rendering the mutation against

the interest of a minor.

3. Learned counsel for the respondents at the outset submits

that the order dated 21.04.2017 (Annex.7) passed by the Board of

Revenue and the order dated 11.03.2010 (Annex.5) passed by the

Additional Commission have rightly been passed, as the Gram

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Panchayat did not have the jurisdiction to mutate the land in

question in favour of the petitioners. He submits that in

accordance with Section 19 of the Rajasthan Land Revenue Act,

1955 ('Act of 1955), the power of mutating the land vests only

with the Assistant Collector. He submits that the writ petition

deserves to be dismissed.

4. Learned counsel for the petitioners submits that the appeal

preferred by respondent No. 5 before the Assistant Collector, Sojat

(Annexure-2) was filed after an inordinate delay of about 43

years, and that neither the learned Additional Commissioner, while

deciding the second appeal (Annexure-5), nor the Board of

Revenue, while adjudicating the revision petition (Annexure-7),

has recorded any finding whatsoever regarding condonation of

such extraordinary delay or the existence of sufficient cause for

the same.

5. Learned counsel for the respondents submits that as the

mutation done by the Gram Panchayat is in stark contravention to

the Section 19 of the Act of 1955, thus, will not cause any

impediment in filing the appeal before the concerned Authority.

6. Learned counsel for the petitioner is not in a position to

refute that in view of Section 19 of the Act of 1955, the power of

mutation of the land solely vests with the Assistant collector and

Gram Panchayat has no power to mutate the land.

7. I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

8. Section 19 of Rajasthan Tenency act, 1955 is reproduced

hereunder:-

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"19. Conferment of rights on certain tenants of Khudkasht and sub tenants-

(1) Every person who, at the commencement of this Act-

(a) was entered in the annual registers then current as a tenant of Khudkasht or sub-tenant of land other than grove land, or

(b) was not so entered but was a tenant of Khudkasht or sub-

tenant of land other than grove land.

shall as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1959, hereafter in this Chapter referred to as the appointed date, become, subject to the other provisions contained in this Chapter, the Khatedar tenant of such part of the land held by him as does not exceed the minimum area prescribed by the State Government for the purpose of clause (a) of sub-section (1) of section 130 or exceeds the maximum area from which such person is liable to ejectment under clause (d) of the said sub-section of the said section and rights in improvements in that part of the said land shall also accrue to such person:

Provided that Khatedari rights or rights in improvements shall not so accrue-

(i) if such part of the said land is held from any of the persons enumerated in section 46, ог

(ii) if such rights therein may not accrue under the proviso to sub-section (1) of section 15 or under section 15-A or under section 15-B or under section 16, oг

(iii) if such person has, after the commencement of this Act and before the appointed date, ceased to be such tenant of Khudkasht or sub-tenant by virtue of lawful surrender of abandonment in accordance with the provisions of this Act or because of his having been ejected in accordance with those provisions by and under the decree or order of a competent revenue court.

(1-A) Subject to the exceptions contained in the proviso to sub-section (1), every person referred to in that sub-section shall, as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1961, hereafter in this chapter referred to as the 'appointed day' become, subject to the other provisions contained in this chapter, the khatedar tenant of that part of land held by him in which he has not acquired Khatedari rights under sub-section (1), before the appointed day, no proceeding for hisejectment under clause (a) or clause (d) sub- section (1) of section 180 shall have been started within the time limit prescribed by section 182-A or if on that day no such proceeding previously started might have been pending. (I- AA)- Every person who on the 31st day of December, 1969, was entered in the annual registers than current as the tenant of Khudkasht or sub-tenant or was not so entered but was a tenant of Khudkasht or sub-tenant of land other than grove land shall subject to the exceptions contained in the provisos to sub-section (1), as from the date of the commencement of the Rajasthan Tenancy (Amendment) Act, 1979, hereinafter in this Chapter referred to as the said date become, subject to the other provisions contained in this Chapter, the Khatedar tenant of that part of the land held by him in which he has not

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acquired Khatedari rights under sub-section (1) or sub-section (1-A), if before the said date, no proceedings for his ejectment under clause (a) or clause (b) of sub-section (1) of section 180 shall have been started with the time limit prescribed by section 182-A or if on that date, no such proceedings previously stated might have been pending: Provided that no Khatedari rights shall accrue under this sub-section in the land which has been, or is liable to be declared surplus under any law relating to the imposition of ceiling on agricultural holdings:

Provided further that no Khatedari right shall accrue under this sub-section on the land belonging to the scheduled caste or scheduled tribe but it shall not be the case if the sub-tenant is the member of scheduled caste or scheduled tribe: Provided also that acquisition of Khatedari rights under this sub-section shall be subject to the provisions of section 17 of the Rajasthan Imposition of Ceiling on Agricultural Holding Act, 1973 (Rajasthan Act 11 of 1973) (2) Every tenant of Khudkasht or subtenant referred to in clause (b) of subsection (1) claiming that the rights mentioned in that sub-section accrued to him on the appointed date in the whole or any part of his holding shall within two years of that date and on payment of a court-fee of Fifty naye paise, apply to the Assistant Collector having jurisdiction, praying for a declaration that such rights accrued to him as aforesaid, and the provisions of sub-section (5) of section 15 shall apply to such application and such tenant of Khudkasht or sub-tenant shall not be regarded to have become the Khatedar tenant of his holding or part, as the case may be, until he has obtained the declaration so prayed for.

(2-A) (i) Every tenant of Khudkasht or sub-tenant claiming that the rights mentioned in sub-section (1-AA) accrued to him on the said date in the whole or any part of his holding shall within one year of the date and on payment of a court fee of fifty paisa, apply to the Assistant Collector having jurisdiction, praying for a declaration that such right accrued to him as aforesaid, and the provisions of subsection (5). of section 15 shall apply to such application.

(ii) Where no application referred to in clause (i) has been made by the tenant of Khudkasht or the sub-tenant to whom the rights of Khatedar tenant accrued under sub-section (1- AA), the Assistant Collector having jurisdiction may on his own motion or otherwise within one year of the said date and after making an inquiry in the same manner as is prescribed for an inquiry under subsection (5) of section 15 and after affording a reasonable opportunity to the parties of being heard and on being satisfied that Khatedari rights accrued to such tenant of Khudkasht of sub-tenant under sub-section (1-AA), issue a declaration to that effect.

+ (ii-a) Where no declaration has been obtained or issued under clause (i) or clause (ii) in the case of a tenant of Khudkasht or sub-tenant claiming that the rights mentioned in sub-section (IAA) accrued to him on the holding, the tenant or subtenant, as the case may be, may notwithstanding the expiry of the time laid down in those clauses, within such time, as may, by notification in the Official Gazette, be specified from

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time to time by the State Government and on payment of a court fee of fifty paise, apply to the Assistant Collector having jurisdiction, praying for a declaration that such rights accrued to him as aforesaid, and the provisions of sub-section (5) of section 15 shall apply to such application; and

(iii) Where no declaration has been obtained or issued under clause (i) or clause (ii) or clause (ii-a) such tenant of Khudkasht or sub-tenantshall not be regarded to have become the Khatedar tenant of his holding or part thereof, as the case may be.

(iv) Where and to the extent such declaration as aforesaid is made in favour of the tenant of Khudkasht or sub-tenant referred to in sub-section (1-AA), the Assistant Collector having jurisdiction shall on the application of any person entitled to any benefit by way of restitution, cause such restitution to be made as will place the person in the position to which he would be entitled as a result of the aforesaid declaration having been made in his favour excepting any claim to mesne profits, of any, for the period during which such person remained out of. possession, or compensation in any form whatsoever; and for this purpose, the Assistant Collector may make such orders as are just and reasonable and are required in the circumstances of the case.

(3) in respect of land in which rights accrue to him under sub- section (1) or subsection (I-A) or sub-section (1-AA) -

(a) every tenant of Khudkasht in relation to the estate-holder who let out such Khudkasht,

(b) and every sub-tenant, in relation to

(i) the State Government, if his tenant-in-chief held the land sub-let by the latter from the State Government, or

(ii) the estate-holder, if such tenant-in-chief held such land from an estate-holder, shall, as from date of accrual of Khatedari Rights be entitled to all rights conferred and be subject to all liabilities imposed, on a Khatedar tenant by this Act.

(4) Every tenant of Khudkasht or subtenant to whom rights accrue under sub section (1) or sub-section (1-A) or subsection (1-AA) shall be bound to pay to his land holder compensation determined in accordance with the provisions of this Chapter. Provided that such tenant or sub-tenant may, three years of the appointed date intimate in writing to the Assistant Collector havingjurisdiction that he does not wish to acquire Khatedari rights on payments of such compensation, in which case he shall not acquire Khatedari rights or be liable to pay compensation and he shall continue as tenant of Khudkasht or sub-tenant as heretofore."

9. The Hon'ble Supreme Court in State of Orissa and Others v.

Brundaban Sharma and Another, 1995 Supp (3) SCC 249, wherein

it has been held that a non est order confers no title and can be

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questioned at any stage. The relevant paragraph is reproduced

here:-

"18. Under these circumstances, it cannot be said that the Board of Revenue exercised the power under Section 38-B after an unreasonable lapse of time, though from the date of the grant of patta by the Tehsildar is of 27 years. It is true that from the date of the alleged grant of patta 27 years did pass. But its authenticity and correctness was shrouded with suspicious features. The records of the Tehsildar were destroyed. Who is to get the benefit? Who was responsible for it? The reasons are not far to seek. They are self-evident. So we hold that the exercise of revisional power under Section 38-B by the Board of Revenue was legal and valid and it brooked no delay, after it had come to the Board's knowledge. That apart as held by the Board of Revenue, the order passed by the Tehsildar without confirmation by the Board is non est. A non est order is a void order and it confers no title and its validity can be questioned or invalidity be set up in any proceeding or at any stage."

10. The Hon'ble Supreme Court in Sushil Kumar Mehta v. Gobind

Ram Bohra (Dead) through His LRs, (1990) 1 SCC 193, wherein

the Court exhaustively explained the distinction between decrees

passed by courts of competent jurisdiction and those rendered

without inherent jurisdiction, and held that a decree of nullity does

not operate as res judicata. The relevant paragraph is reproduced

hereinbelow:-

"26. Thus it is settled law that normally a decree passed by a court of competentjurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non Jjudice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party. If the court has jurisdiction but there is defect in its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial could be waived by the party. They could

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be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction."

11. This Court observes that sub-section (2) of Section 19 of the

Rajasthan Tenancy Act, 1955 unequivocally vests the exclusive

jurisdiction to declare and recognise accrual of Khatedari rights

and the consequential mutation of land solely in the Assistant

Collector having jurisdiction, and consequently, any mutation

effected by the Gram Panchayat is without authority of law and

void ab initio.

12. This Court finds no merit in the petitioners' contention that

the learned Board of revenue in revision petition (Annex.7) and

learned Additional Commissioner in second appeal (Annex.5) erred

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