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2008 Supreme(Raj) 268
[Citation : RLW 2008(2) RJ 727 (Raj.)]
(Rajasthan High Court)
Soni (Smt.) & Ors. Vs. Board of Revenue & Ors. (Kothari, J.)
HONBLE VINEET KOTHARI, J.
Soni (Smt.) & Ors.
Versus
Board of Revenue & Ors.
S.B. Civil Writ Petition No. 2464 of 2002, decided on 22nd February, 2008
C.R. Jakhar, for Petitioners
J.L. Purohit, for Respondents
Headnote:Rajasthan Tenancy Act, 1955, Sec. 42 and Rajasthan Tenancy (Second Amendment) Act, 1956, Sec. 3 and Sec. 42 Proviso — Effect of Amendment Act — Whether retrospective? — Held — Sale made by a member of Scheduled Caste to a member of other caste during the period when proviso to Sec. 42 remained on the statute book between 22.9.1956 to 1.5.1964 were void and could not be enforced against such member of Scheduled Caste. (Paras 21 to 24)
Petition allowed.
After insertion of proviso in Section 42 of the Rajasthan Tenancy Act w.e.f. 22.9.1956, in view of clear prohibition contained in said proviso, transfer of land by sale, gift or bequest by a member of Scheduled Caste or Tribe to a member of other caste not being Scheduled caste or Scheduled Tribe is void being prohibited by law and thus being against the public policy and as per Section 23 of the Indian Contract act, such sales could not be enforced against the members of Scheduled Caste and Scheduled Tribes. Of course the words "such sale shall be void" came on the statute book w.e.f. 1.5.1964, but the effect remains the same for the period between 22.9.1956 to 1.5.1964 also, namely, that persons of such other caste cannot claim or cannot seek to enforce any such right transferred to them by a member of Scheduled Caste or Scheduled Tribe in the agricultural land of which they were khatedar tenants, if sale or gift or bequest is prohibited by law as was position contained in Proviso to Section 42 between 22.9.1956 to 1.5.1964. The respondents naturally cannot claim any benefit on the basis of such alleged sale-deed in their favour made on 16.9.1957. (Para 21)
Even sales made by a member of Scheduled Caste to a member of other caste during the period when proviso to Section 42 remained on the statute book between 22.9.1956 to 1.5.1964 were void and could not be enforced against such members of Scheduled Caste. Therefore, the observations made in Triveni Shyam Sharmas case in para 18 cannot be said to be having over-riding effect over the subsequent binding precedents from the division Benches as well as different learned Single Judges of this Court. (Para 23)
jktLFkku dkrdkjh vf/kfu;e] 1955] /kkjk 42 ,oa jktLFkku dkrdkjh ¼f}rh; lakks/ku½ vf/kfu;e] 1956] /kkjk 3 vkSj /kkjk 42 ijUrqd & lakks/ku vf/kfu;e dk izHkko & D;k Hkwry{kh izHkko ls\ & vfHkfu/kkZfjr & 22-9-1956 ls 1-5-1966 ds e/; tc /kkjk 42 dk ijUrqd ^^LVsP;wV cqd** ij jgk ml le; ds nkSjku vuqlwfpr tkfr ds O;fä }kjk fdlh vU; tkfr ds lnL; dks fd;k x;k foØ; kwU; Fkk vkSj vuqlwfpr tkfr ds ,sls lnL; ds fo:) ykxw ugha fd;k tk ldrk FkkA ¼in la- 21 ls 24½
;kfpdk Lohdkj dhA
.
2. The present petitioners had filed a revenue suit under Section 88 and 188 of the Rajasthan Land Revenue Act before the Assistant Collector. Jodhpur with plaint averments that land of 106 bighas and 5 biswas in khasra No.207 in village Jajiwal Gehlota was recorded in the name of Joga Ram, husband of the plaintiff Smt. Soni and father of plaintiffs No.2 and 3 Bhoma Ram and Mohan Lal and after the death of said Joga Ram the said land was recorded in the name of plaintiffs No.2 and 3 and the plaintiffs were in possession of the said land. It was further stated in the plaint that the defendant No.l Bhoma Ram S/o Keshar Singh got mutation illegally done in his favour in respect of 74 bighas and 5 biswas under the mutation entry No.73 and on the basis of said mutation entry. the said defendants were interfering with the peaceful possession of the plaintiffs and on account of proceedings under Section 145 Cr.P.C. the possession of land in question was given to the Receiver i.e the Tehsildar on 24.8.1974 and since then the said land is in possession of the receiver only.
3. It is further case of the petitioners that on 24.5.1978. the learned SDO while deciding the said Section 145 Cr.P.C. proceeding directed the parties to get their respective rights decided in competent civil Court. Accordingly, suit under Section 88 and 188 of the Rajasthan Land Revenue Act was filed by the plaintiffs on 22.8.1990.
4. The defendants came up with a plea in their written statement that a registered sale-deed was executed in their favour on 16.9.1957 in respect of said 74 bighas and 5 biswas of land by Smt. Soni and the possession of the same was delivered to them. The said suit No.96/1990 filed by the plaintiffs was dismissed by the Revenue Court on 29.2.1996. By order dated 29.2.1996 the said Assistant Collector also held while disposing of the suit of the plaintiffs that, the in question vested in the State Government as sale made in favour of the defendants was void being in violation of Section 42 of the Rajasthan Tenancy Act as it was a sale by a member of Scheduled Caste to a member of non-Scheduled Caste.
5. Both the parties, filed appeals before the Revenue Appellate Authority, Jodhpur. The said appeals were disposed of by the Revenue Appellate Authority on 24.6.1999 and while partly allowing the Appeal No.8 1996 filed by the present petitioners, Smt. Soni and her sons, the Appeal No. 11/1996 filed by the respondents Bhoma Ram and others was rejected. The Revenue Appellate Authority however directed in para 18 of its order that if the plaintiffs deposit Rs.70,000/- within three months, the possession of the land in question may be given back to them. If the plaintiffs fail to deposit the said amount the land would vest in the State Government.
6. Both the parties again approached the Board of Revenue. Ajmer, present plaintiffs by way of Revision petition No.201 1999 and respondents by way of Appeal No. 11/1999 and 75/1999 respectively. All these appeals and revision petition were disposed of by the Board of Revenue by the impugned judgment and order dated 24.5.2002 holding that though the sale said to have been made in favour of the defendants on 16.9.1957 was against the provisions of law. but in absence of any proceedings undertaken by the plaintiffs in the competent Civil Court, the present suit under Section 88 and 188 could not be decreed and the counter claim of the defendants deserved to be allowed. The Board of Revenue further held that the plaintiffs had not taken any proceedin
