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Rajasthan High Court
Honble G.L. GUPTA, J.
Babu Singh - Appellant
Versus
State of Rajasthan and Others - Respondents
S.B.C. Writ Petition No. 3447 of 1995
Decided On : February 11, 1998
Section 42, as it stands today, makes it clear that the sale by a Khatedar tenant who is member of Scheduled Caste of his interest in the holding is void if the person, to whom the sale is made, is not member of the Scheduled Caste. In the instant case, the sale by Akura Ram was made in the year 1963. The sale under Section 42, as it stood then, was though not expressly held to be void, yet it was forbidden by law. The proviso started with the negative words. The negative words are clearly prohibitory and are ordinarily used as a legislative devide to make the statute imperative. (Para 12)
It is obvious that the sale of interest in the land by Akura Ram to Naresh Chandra who, admittedly was not the member of Scheduled Caste, was forbidden by law. As such, the vendee did not get any legal right in the land by such transaction. The petitioner who had purchased interest in the land from Naresh Chandra could not get better right than his vendor. It may also be pointed out here that Akura Ram was not even Khatedar of the land; he was Gair Khatedar, and as such the interest in the holding was not transferable because of Section 38 of the Tenancy Act. (Para 13)
If a person, claiming to have acquired Khatedari rights by adverse possession, was put in or had obtained possession of the land in contravention of any provisions of law prohibiting or invalidating the transaction which has occasioned such adverse possession or if any such provision of any State was thereby circumvented, will not acquire the Khatedari rights. It is, thus, settled legal position that when a person has purchased the land in contravention of the provisions of Sec. 42 of the Tenancy Act, he cannot acquire Khatedari rights by adverse possession. (Para 15)
(2). The facts stated in the writ petition are that Akura Ram Meghwal Was Gairkhatedar tenant of the land measuring 37.14 Bighas of land in village Rajasar, now Chak 5 M.D. He sold this land to one Naresh Chandra on 18.5.1963. Naresh Chandra in his turn sold this land to petitioner Babu Singh on 24.5.1970 by registered sale deed who is in possession of the land since then. The proceedings under Section 175 were initiated against the petitioner on 2.2.1974 but the Assistant Collector dismissed the application vide order dated 22.9.1977 on the ground that the application was time barred. Appeal taken against that order before the Revenue Appellate Authority was pending. During revenue campaign on 3.6.1989 Amari w/o Akuraram made on application before the Assistant Collector, Annopgrah that the petitioner had been dispossessed of the land by force and the possession should be restored to her. It was found that Amari was a member of Scheduled Caste and therefore she other husband could not sell the agricultural land to a person, who was not the member of Scheduled Caste and therefore the sale was void. The Assistant Collector vide order Ex.1 directed the Tehsildar to dispossess Babu Singh (petitioner) and hand over possession of the land to Amari (respondent no.6). This order was challenged by way of appeal before the Revenue Appellate Authority, who vide order dated 28.4.1990 dismissed the appeal and a revision preferred under Section 230 of the Rajasthan Tenancy Act was also dismissed by the Revenue Board vide its judgment dated 28.9.1995. The petitioners case is that the order Anx.1 was passed without affording an opportunity to the petitioner and therefore the order Ex.1 and the consequent orders Exs. 2 dt. 28.4.1990 & Ex.3 dt. 28.9.1995 are liable to be quashed. It has been averred that the petitioner had been in continuous possession for a long period and therefore he has acquired title by adverse possession.
(3). In the reply respondents no. 1 to 5 have averred that the sale in favour of Naresh Chandra by Akura Ram was void under Section 42 of the Tenancy Act and as such subsequent sale by Naresh Chandra to the petitioner did not confer any legal right in the petitioner. It has been stated that since the sale was void no notice was required to be given to the petitioner.
(4). I have heard the arguments of the learned counsel for the parties and perused the record of the case.
(5). The contention of Mr. Bhoot was that admittedly no notice was given to the petitioner before passing order Ex.1 and therefore the order Ex.1 is bad and orders Ex. 2 and 3 are also liable to be quashed.
(6). Mr. Singhi & Mr. Sharma, on the other hand, canvassed that no notice was required to be given to the petitioner as sale to him was void ab-initio. They submi- tted that assuming that it was necessary to give an opportunity of hearing to the petitioner, the orders are not liable to be quashed for the reason that the petitioner did not have legal right in the land and this Court under the extra ordinary jurisdiction under Article 226 of the Constitution should not allow the illegality to be perpetuated. Their contention as that if the matter is sent back to the concerned authority for affording an opportunity to the petitioner of hearing, the result would be the same as the petitioner cannot successfully defend his possession. It was further contended that when the petitioner did not obtain possession over the land in accordance with law, he cannot successfully plead the acquisition of Khatedari rights on the basis of adverse possession.
(7). I have given the matter my thoughtful consideration. In this case it is no more in dispute that petitioner was not given an opportunity of hearing before the order Ex.1 was passed. The order Ex.1 was passed under Secti
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