2007 Supreme(Raj) 1877
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mohammad Rafiq, J.
Geega Ram & Anr. - Appellant
Versus
The Board of Revenue & Ors. - Respondent
S.B. Civil Writ Petition No.2947 of 2002.
Decided On : 23-07-2007
Advocates:
For the Petitioner:Shri S.K. Singodiya, Advocate.
For the Respondent:Shri M.M. Ranjan, Advocate.
Headnote:
Constitution of India, 1950, Art. 226 – Writ petition – Revenue Law – Khatedari rights – Writ challenges Board judgement to Revenue and Revenue Appellate Authority – SDO judgment delaying petitioner as land Khatedar of Khasra No. 734 – petitioner seeks its restoration – respondent challenges SDO Order that was reversed by appellate authorities – petitioners when challenged RAA judgment before the Board of Revenue it dismissed appeal – Hence this writ – Petitioners argue Board and RAA dismissed revenue suit and set judgment and decree by SDO aside citing basis of petitioner/predecessor’s presumed consent to transfer rights in Khasra No. 734 and in Respondent favor – contended that – no such consent ever given and note to this effect by Settlement Department false and fabricated – Whereas, respondents opposed the writ arguing that Board and RAA passed orders on application of mind and consideration of record material – Department could not have changed khatedari by entering respondent name on basis of assertion that they in cultivatory possession of said land – respondents unable to show what right settlement had to change revenue records entries – the fact that kahtedari entered in records noted by Board and RAA – The consent which was given by petitioners to settlement as alleges respondent could not afford any basis to settlement to make such changes when they admitted disputed land possession of respondent/his father – held, both RAA and Board erred in law in interfering with SDO Judgment – Writ Petition allowed.
JUDGMENT
1. 1. The petitioners have by this writ petition challenged the judgment dated 18.12.2000 passed by the Board of Revenue and the judgment dated 13.5.1997 passed by the Revenue Appellate Authority and prayed that the judgment passed by the Sub-Divisional Officer, Nawalgarh (for short- the SDO) dated 13.1.97 be restored and it be declared that petitioners are khatedars of land of khasra no.734 measuring 0.70 hectares situated at Tan Jahaj, Tehsil Udaipurwati, District, Jhujhunu.
2. The petitioners filed a revenue suit before the SDO inter alia on the premise that a portion of khasra no.733 measuring 1.30 hectares and khasra no.734 measuring 0.70 hectares were part of old khasra no.521 measuring 7 bighas and 8 biswas. This land is situated in Village Tan Jahaj, Tehsil Udaipurwati, Distt. Jhunjhunu. Old khasra no.521 was entered in the name of the petitioners and their ancestors but later on at the time of Settlement, khasra no.521 was divided into two parts namely khasra no.733 and 734. While earlier khasra no.733 continued to be recorded in the name of the petitioners, the Settlement entered khasra no.734 in the name of respondent no.4. A Revenue suit was therefore filed seeking declaration that khasra no.734 measuring 0.703 hectares was in the name of the petitioners. The SDO by his order dated 13.1.1997 decreed the revenue suit and declared the petitioners as khatedar tenant of khasra no.734 measuring 0.70 hectares and accordingly directed corrections to be made in the revenue records. Respondent no.4 Prabhat challenged the order of the SDO before Revenue Appellate Authority (for short- the RAA) who by its order dated 13.5.1997 reversed the judgment of the SDO. When the petitioners challenged the judgment of the RAA before the Board of Revenue (for short - the Board), the Board by its judgment dated 18.12.2000 dismissed the appeal. Hence this writ petition.
3. I have heard Shri S.K. Singodiya, the learned counsel for the petitioners and Shri M.M. Ranjan, the learned counsel for the respondents.
4. Shri S.K. Singodiya, learned counsel for the petitioners argued that the Board as well as the RAA erred in law in not taking into consideration the available records in their possession. They did not consider the jamabandi of Svt. 2029-2032 (Ex.P-1) and jamabandi of Svt. 2033-2036 (Ex.P-2), jamabandi of Svt. 2025-2028 (Ex.P-3), khasra girdawari of 2034-36 (Ex.P.5), receipts of lagans (Ex.P-6, P-7, and P-8). The Board and the RAA have dismissed the revenue suit of the petitioners and set aside the judgment and decree passed by the SDO only on the basis of the presumed consent of the petitioners / their predecessors for transfer of the rights in the lands of khasra no.734 in favour of the respondent no.4. It was contended that no such consent was ever given and note to this effect made by the employees of the Settlement Department was false and fabricated. Settlement does not have any power either to confer khatedari rights on any one or change the revenue records. At the time of settlement, khasra no.521 was recorded in the name of the petitioners and therefore it recorded the same in favour of respondent no.4 on the basis of the alleged consent of the petitioners which in fact was never given. The Settlement Department has no legal authority to change the records of the land without their being any order from the competent authority. The Board as well as the RAA solely based their order on the so called possession of respondent no.4 and the fact that name of his father has been recorded as khatedar of khasra no.734 but in doing so, both remained oblivious of the fact that his name was entered only on the ground the so called consent of the petitioners which was presumed but which in fact was never given.6 Learned counsel for the petitioner relied on the judgment of this Court in Kanha & Ors. v. Board of Revenue and Ors., 1999 (1) WLC 343 to support his arguments.
5. On the other hand, Shri M.M. Ranjan, learned counsel for the
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