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2009 Supreme(Raj) 994
[Citation : RLW 2010(1) RJ 34]
(Board of Revenue for Rajasthan)
Rama Vs. State of Rajasthan (Dr. Hooja, C.)
DR. RAKESH HOOJA, CHAIRMAN
G.K. TIWARI, MEMBER
Rama
Versus
State of Rajasthan
Appeal/Decree/TA/4063/2004/Chittorgarh, decided on 07.08.2009
Bhawani Singh, for Appellant;
J.P. Mathur, Govt. Advocate, for Respondent
Headnote:Rajasthan Tenancy Act, 1955, Secs. 16, 88, 188 — Suit for declaration of khatedari rights on pasture land — Claiming possession since Jagir era — Regularisation made by Tehsildar — Dismissed for want of evidence — Held — Tehsildar is not competent to regularise land under the Rules of 1970 — Such an alleged act of Tehsildar would be patently beyond his jurisdiction and as such nullity in the eye of law — No right or title would accrue on account of such purported act of regularisation done beyond his jurisdiction by Tehsildar under the Rules of 1970 — Land falling u/S. 16 is not available for allotment or regularisation to anybody. (Paras 7 to 9)
The disputed land is a government land (Bilanam) shown as Charnot (Pasture-land) in the record of khasra girdawari. Under Section 16 of the Act, khatedari rights do not accrue in pasture-land which is used for common public purpose as grazing ground for the cattle of the village. Under rule 4(1) of the Allotment Rules of 1970 the lands falling under section 16 of the Act are not available for the allotment or regularisation to anybody. Even if it is presumed that the appellant-plaintiff had been in possession on the disputed land, it would tantamount to possession by a trespasser on pasture-land which is neither available for allotment nor for regularisation; mere trespass on the disputed pasture-land does not make the appellant-plaintiff entitled for conferment of any khatedari right in respect of the disputed land. The trial Court had framed two issues in this respect both of which are correctly decided against the appellant-plaintiff; the first appellate Court of Revenue Appellate Authority has concurred in the judgment of the trial Court. (Para 8)
jktLFkku dk'rdkjh vf/kfu;e] 1955] /kkjk 16] 88] 188 & pkjkxkg Hkwfe ij [kkrsnkjh vf/kdkjksa dh ?kks"k.kkFkZ okn & tkxhj dky ls dCtk gksus dk nkok djuk & rglhynkj }kjk fu;eu fd;k x;k & lk{; ds vHkko esa [kkfjt fd;k & vfHkfu/kkZfjr & 1970 ds fu;eksa ds rgr Hkwfe dk fu;eu djus gsrq rglhynkj le{k ugha & rglhynkj dk ,slk dfFkr d`R; mldh vf/kdkfjrk ls Li"V :i ls ijs gksxk vkSj bl izdkj fof/k dh n`f"V ls izHkkoghu gksxk & 1970 ds fu;eksa ds rgr rglhynkj }kjk viuh vf/kdkfjrk ls ijs fd;s x;s fu;eu ds ,sls rkRif;Zr d`R; ds dkj.k fdlh Hkh izdkj dk gd ;k LoRo izksnHkwr ugha gksxk & /kkjk 16 ds rgr vkus okyh Hkwfe fdlh Hkh O;fDr ds vkoaVukFkZ ;k fu;eukFkZ miyC/k ugha gksrhA ¼in la[;k 7 ls 9½
vihy [kkfjt dhA
2. Briefly stated, the facts leading to the appeal are that the appellant-plaintiff filed a suit under Section 88 and 188 of the Act for declaration of khatedari rights and injunction in respect of the disputed land located in village Devlach (Distt. Chittorgarh), in the court of Sub-Divisional Officer Begun who by his judgment dated 13.12.02 dismissed the suit. Aggrieved against this judgment of Sub-Divisional Officer Begun, the appellant preferred first appeal under Section 223 of the Act before Revenue Appellate Authority Chittorgarh who by the impugned judgment dated 28.4.04 dismissed the appeal. Hence the second appeal.
3. We have heard the learned counsel of both the parties.
4. The learned counsel for the appellant contended that the appellant-plaintiff had been in possession of the disputed land since the era of Jagirdar. At the time of resumption of the jagir the disputed land was erroneously entered in the revenue record as government land whereas it should have been entered in the name of the appellant-plaintiff as khatedar. Nonetheless recognizing the old possession of the appellant-plaintiff on the disputed land, it was regularised in the name of the appellant-plaintiff by the concerned Tehsildar on 8.5.1971 for which appellant also deposited Rs. 216/- as regularisation charges. But unfortunately during the course of settlement the disputed land was recorded as pasture-land (Charnot) wrongly and illegally. In the register of encroachment for the period 1969-71, there is a note of regularisation in its column No. 6 as is clear from Ex. P.1. Both the lower courts have erred in holding the land as pasture-land whereas initially it was a jagir land recorded, subsequently, as government land which was regularised in favour of the appellant-plaintiff. Both the lower courts have wrongly held that the Tehsildar was not competent to regularise the land in favour of the appellant. This might only be a procedural error which cannot take away the right of appellant for regularisation of the land in view of his long possession. The disputed land was wrongly recorded as Charagah; there is separate provision for declaration of Charagah under which no action was taken by the revenue officers. The issue No.1 relating to old possession on and regularisation of the disputed land was wrongly and illegally decided by the trial Court. As such the impugned judgments of both the lower court should be set aside.
5. Countering the contentions of the appellant, the learned Government Advocate pleaded that the disputed land has been recorded as pasture-land (Charnot) ever since Svt. 2015. The land under consideration was never regularised in favour of the appellant-plaintiff. There is no order of regularisation of the land by any competent authority. Tehsildar is not competent to regularise any land. Under section 16 of the Act khatedari right cannot be conferred on anybody with regard to pasture-land. There is a casual remark of regularisation in an encroachment register of 1969-71; but regularisation is not proved at all by production of any order of Sub-Divisional Officer or Allotment Advisory Committee or any order of mutation carried out in compliance of the alleged allotment order. No khatedari right can be awarded simply on the basis of Ex. P.1 which is an entry in encroachment register. Both the lower courts have given concurrent judgments which cannot be interfered with in the second appeal.
6. We have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the record available on the file.
7. The prominent contention of the appellant-plaintiff for claiming khatedari right in respect of the disputed land is that he has been in possession of the disputed land since jagir era due to which the suit
