DINESH MEHTA, J.

Instant writ petition has been filed by the petitioner challenging the judgment/order dated 11.06.2004 passed by the Board of Revenue for Rajasthan, Ajmer, whereby the reference made by Additional District Collector, Tonk, vide order dated 22.02.2001, has been allowed and the mutation entry no. 471 in favour of father of the petitioner Sh. Ganga Ram in relation to the land measuring 3 bighas 15 biswas in revenue village Tonk, has been set aside.

2. The facts, in brief, leading to this litigation to this court are that 3 Bighas 15 Biswas of land of Khasra No. 6959 situated in Tehsil Tonk has been mutated in the name of Gangaram in the year 1960, as a result of order dated 03.02.1960 passed in settlement proceedings. Since then, the petitioners/their predecessor have been enjoying cultivatory possession over it.

3. A reference application came to be filed by the Tehsildar Tonk, for setting aside mutation entry no. 471, which came to be rejected by a detailed order dated 28.09.1989, passed by the Additional Collector Tonk, holding that Gangaram, father the petitioners, was cultivating the land for which he was conferred ‘khatedari’ rights by virtue of provision of Section 19 of the Rajasthan Tenancy Act, 1955 (for short, ‘the Act of 1955’). The Additional Collector further observed that Gangaram was having possession over the land for last 51 years.

4. Tehsildar Tonk, relentlessly filed yet another application for reference for the same reasons, which however came to be accepted by the Additional Collector Tonk, by an order dated 22.02.2001 and accordingly a reference was made to the Board of Revenue Ajmer.

5. Said reference was registered as Reference no. 247/2001/LR Tonk and came to be allowed by the Board of Revenue vide order dated 11.04.2004. Learned Member of the Board set aside the mutation entry no. 471 recording the land in name of petitioners/petitioner's predecessor, while observing that the mutation entry no. 471 was in violation of Section 46(a) of the Act of 1955. Learned Member of the Board of Revenue completely brushed aside the argument on behalf of the petitioners that the petitioners are Khatedar tenant of the land and that second reference on the same issue was not maintainable, and observed that the principle of res-judicata is not applicable in the matters of reference.

6. Assailing the order of the Board of Revenue, Mr. R.K. Mathur, learned Senior Counsel, submitted that the mutation in question has been made in favour of Gangaram father of the petitioners, in pursuance of the order no. 648 & 655 dated 03.02.1960, passed by Settlement Commissioner. He firstly submitted that the order of Settlement Commissioner passed way back in the year 1960, can not be set at naught by way of proceedings under Section 82 of the Land Revenue Act. His second argument was that there is no evidence on record to show that the land in question ever belonged to ‘Muafi Takiya Kalan Baitmam Saraste Okaf’. Thirdly he contended that Additional Collector, Tonk, had already rejected the reference on merit by a reasoned order dated 28.09.1989 and second reference for the same reasons, made vide order dated 22.02.2001, was illegal and the impugned order of the Board of Revenue dated 11.06.2004, passed in proceedings arising out of such illegal reference, is also illegal. His fourth argument was that reference for setting aside mutation entry after about 51 years is void and without jurisdiction in the light of catena of decisions of this court and that of the Hon'ble Supreme Court. His last argument was that without prejudice to all the above argument, even if it is presumed that land at some point of time belonged to ‘Muafi Takiya Kalan Baitmam Saraste Okaf’, or some seat of Muslim faith, it was then a Wakf property for which if any proceedings were warranted, the same could be taken in accordance with the provisions of Wakf Act, 1995. He further contended that there is no concept of Idol or Diety in Muslim faith a