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2009 Supreme(Raj) 152
[Citation : RLW 2009(1) RJ 274]
(Board of Revenue for Rajasthan)
Sudarshan Kumar Vs. Laxminarain & Ors. (Singh, M.)
HON'BLE ROHIT KUMAR SINGH, MEMBER;
HON'BLE G.K. TIWARI, MEMBER
Sudarshan Kumar
Versus
Laxminarain & Ors.
Appeal Decree/TA/8068/2001/.Baran, decided on 30.01.2009
Surnedra Maheshwari, Counsel, for Appellant;
Y.D. Sharma, Counsel, for Respondent No.1 & 2 pleaded no instruction;
R.K. Gupta, Addl. Govt., for State
Headnote:Rajasthan Tenancy Act, 1955, Sec. 42 — Accrual of khatedari rights on the khatedari land of Scheduled Caste person on account of adverse possession — Land sold through registered sale deed and handed over possession — Held — Such transaction is prohibited u/S. 42(B) of the Act and is void ab-initio — Neither any right or interest passes nor any khatedari right accrues pursuant to such illegal transaction which is expressly barred and prohibited under the Act — Both the claims of permissive possession and adverse possession cannot go together being mutually exclusive — There cannot be adverse possession on the land belonging to a Schedule Caste khatedari tenant. (Paras 7 & 8)
Appeal dismissed.
Section 42 of the Act prohibits transfer of land by khatedar tenant belonging to scheduled caste to a person who does not belong to scheduled caste and the prohibition in this section is absolute. It is also held that section 88 of the Act clearly envisages that by adverse possession the trespasser acquires khatedari rights provided the acquisition of khatedari right is not specifically prohibited by law. In the case under consideration, the impugned transfer of land is clearly and absolutely prohibited under the law and as such no khatedari right can accrue on any ground of adverse possession on land belonging to scheduled caste khatedar. (Para 8)
jktLFkku dkrdkjh vf/kfu;e] 1955] /kkjk 42 & izfrdwy dCts ds dkj.k vuqlwfpr tkfr ds O;fDr dh [kkrsnkjh Hkwfe ij [kkrsnkjh vf/kdkj izksnHkwr gksuk & iaftd`r foØ; foys[k ds tfj;s Hkwfe csp dj dCtk lkSaik & vfHkfu/kkZfjr & /kkjk 42 ?[k? ds rgr ,slk laO;ogkj fuf"k) gS vkSj vkjEHk ls gh kwU; gS & ,sls voS/k laO;ogkj ds vuqlj.k esa u rks dksbZ vf/kdkj ;k fgr vUrfjr gksrk gS vkSj u gh dksbZ [kkrsnkjh vf/kdkj izksnHkwr gksrs gS tks fd vf/kfu;e ds rgr Li"V :i ls oftZr ,oa fuf"k) gS & Lohd`r dCts ,oa izfrdwy dCts ds nksuksa nkos ikjLifjd :i ls vuU; gksus ds dkj.k lkFk lkFk ugha py ldrs & vuqlwfpr tkfr ds [kkrsnkjh dkrdkj dh Hkwfe ij izfrdwy dCtk ugha gks ldrkA ?in la[;k 7 o 8?
vihy [kkfjt dhA
SINGH, M.—This is second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the impugned judgment and decree dated 27.1.01 of Revenue Appellate Authority Kota by which he partially allowed the appeal filed before him against the order dated 18.7.2000 of Sub-Divisional Officer Chhabra (Baran).
2. Briefly stated, the facts leading to the appeal are that the appellant-plaintiff filed a suit against the respondents-defendants under sections 88, 89, 91, 188 and 92(A) of the Act before Sub-Divisional Officer Chhabra who dismissed the suit and directed Tehsildar Chhabra to take action under Section 42 of the Act vide his judgment dated 18.7.2000. Aggrieved against this judgment, the appellant-plaintiff preferred an appeal before Revenue Appellate Authority Kota who by his impugned judgment dated 27.1.01 partially allowed the appeal upholding the judgment dated 18.7.2000 of Sub-Divisional Officer but deleting at the same time the direction given by the trial Court to Tehsildar for proceedings under Section 175 of the Act. The appellant has preferred the instant second appeal before this Court against the impugned judgment dated 27.1.01 of Revenue Appellate Authority Kota.
3. We have heard the learned counsel for the rival parties.
4. The learned counsel for the appellant has argued that the respondents No. 1 and 2 have sold the disputed land to the appellant through a registered sale deed on 19.6.1969 and duly handed over the possession of the land; as such the respondents have lost any right and interest in the land sold by them and the appellant has become khatedar tenant as a bonafide purchaser of the land, although this transaction involves transfer of the land through sale by a khatedar tenant who is member of a scheduled caste to a person who is not a member of the scheduled caste, nonetheless this transaction is not hit by provisions of Section 42 of the Act in view of the fact that the plaintiff-appellant has become khatedar by efflux of time being in possession of the land since the year 1969. It was also argued that an earlier case filed by the respondents under Section 183-B of the Act was also dismissed being time barred on the point of limitation by Sub-Divisional Officer Chhabra. The appellant has also acquired khatedari right by virtue of adverse possession on the land as such judgments of both the lower courts on this count are not in accordance with the law. It is also argued that the suo moto direction given by trial Court for proceedings under section 175 of the Act is also unwarranted as period of limitation for taking action under Section 175 of the Act is time barred by now. The learned counsel cited 2006 RRT (1) 183, 2002(1) RLR 135 and 2002 RRT (1) 408.
5. Countering the contentions of the appellant, the learned Additional Government Advocate contended that the disputed land was sold by a scheduled caste khatedar tenant to a person who is not from the category of scheduled caste through a registered sale deed executed on 19.6.1969. This is clearly in violation of Section 42 of the Act and as such the transaction is void ab-initio. The appellant cannot acquire khatedari right on account of such an illegal sale. Citing 1994 RBJ 50 (HC) it was pleaded that there is no question of adverse possession on the land belonging to the scheduled caste khatedar tenant. It is also argued that the trial Court is within its competence and jurisdiction to direct Tehsildar for taking action under Section 175 of the Act in view of the gross violation of the provisions of section 42 of the Act. Revenue Appellate Authority erred in deleting this direction from the judgment of trial Court which should not be allowed by this Court. He pleaded to uphold the judgment of the Sub-Divisional Officer Chhabra.
6. We have given thoughtful consideration to the rival contentions, perused the impugned judgments of both the lower courts and carefully gone through the record available on the file.
7. Admit
