HIGH COURT OF JUDICATURE FOR RAJASTHAN
CHANDRA KUMAR SONGARA,MANINDRA MOHAN SHRIVASTAVA
SHALLU SON OF SHRI MOHD. KHAN – Appellant
Versus
BOARD OF REVENUE – Respondent
SAW/623/1997

A decree for declaration of rights sought on the basis of pre-existing right as a result of devolution is not barred by Section 42(b) of the Rajasthan Tenancy Act.

Headnote:

LAND REVENUE - RAJASTHAN TENANCY ACT, 1955 - SECTION 42(B) - TRANSFER OF LAND BY SCHEDULED CASTE IN FAVOUR OF NON SCHEDULED CASTE PERSON - BAR - DECREE FOR DECLARATION OF RIGHTS SOUGHT ON THE BASIS OF PRE-EXISTING RIGHT AS A RESULT OF DEVOLUTION - NO BAR UNDER SECTION 42(B) - REFERENCE TO BOARD OF REVENUE - ORDER OF BOARD OF REVENUE DECLARING DECREE AS NULLITY SOLELY ON THE GROUND THAT IT WAS HIT BY THE PROVISIONS CONTAINED IN SECTION 42(B) OF RAJASTHAN TENANCY ACT WITHOUT MAKING ANY INQUIRY - ORDER SET ASIDE AND CASE REMANDED TO THE BOARD OF REVENUE FOR CONSIDERATION AFRESH.

Fact of the Case:

Suit was filed before the Assistant Collector, Rajgarh seeking declaration of Khatedari Rights on pre-existing rights by way of succession. The case of the appellants/ plaintiffs in the Revenue Suit was that the land in question belonged to their predecessor in-title namely, Goshan. According to the appellants, they were entitled to appropriate declaration of their Khatedari Rights because instead of entering their names, the name Parmali was entered in the revenue records as Khatedar of the land in dispute. That suit was decreed by the learned Trial Court vide judgment/decree dated 28.05.1969. Though, no appeal was preferred against the said judgment/decree, in course of time, Parmali sought to challenge the decree by filing two suits which were dismissed in default. When the matter stood, thus, Parmali moved an application before Assistant Collector seeking reference under Section 232 of the Rajasthan Tenancy Act. Additional Collector made reference to the Board of Revenue. The principal ground on which reference was made was that the land belonged to Parmali, who belonged to Scheduled Caste and there was a bar engrafted under Section 42 of the Tenancy Act in the matter of transfer of land by Scheduled Caste in favour of non Scheduled Caste person.

Finding of the Court:

The Board of Revenue did not examine the matter in proper detail before recording the findings that the appellants were not entitled to declaration of Khatedari Rights in view of provisions contained in Section 42(b) of Rajasthan Tenancy Act. In view of above, the order passed by the learned Single Judge is set-aside. The order passed by the Board of Revenue on 11.04.1999 is also set-aside and the case is remanded to the Board of Revenue for consideration afresh after examining and taking into consideration all the aspects of the matter including maintainability of reference and such other submissions as may be made by both the parties before the Board of Revenue.

Issues: Whether the Board of Revenue was justified in declaring the decree dated 28.05.1969 as nullity solely on the ground that it was hit by the provisions contained in Section 42(b) of Rajasthan Tenancy Act without making any inquiry?

Ratio Decidendi: The Board of Revenue did not examine the matter in proper detail before recording the findings that the appellants were not entitled to declaration of Khatedari Rights in view of provisions contained in Section 42(b) of Rajasthan Tenancy Act. In view of above, the order passed by the learned Single Judge is set-aside. The order passed by the Board of Revenue on 11.04.1999 is also set-aside and the case is remanded to the Board of Revenue for consideration afresh after examining and taking into consideration all the aspects of the matter including maintainability of reference and such other submissions as may be made by both the parties before the Board of Revenue.

Final Decision: The order passed by the learned Single Judge is set-aside. The order passed by the Board of Revenue on 11.04.1999 is also set-aside and the case is remanded to the Board of Revenue for consideration afresh after examining and taking into consideration all the aspects of the matter including maintainability of reference and such other submissions as may be made by both the parties before the Board of Revenue.