IMPORTANT POINT
Adverse possession cannot be claimed by a General Caste individual over land owned by a Scheduled Tribe individual, as per Section 42 of the Rajasthan Tenancy Act.

JUDGMENT :

SUDESH BANSAL, J.

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 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 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 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