1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR O R D E R Shri Kishori Vs. Board of Revenue for Rajasthan & Ors. (SB CIVIL WRIT PETITION NO. 3214/1987) UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA DATE OF ORDER : DECEMBER 23, 2010. PRESENT HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Mr. Ajay Gupta for the petitioner. Mr. R.K. Pareek for the respondents. BY THE COURT : REPORTABLE This writ petition has been filed by the petitioner assailing the order passed by the Board of Revenue dated 28.9.87. The Board of Revenue by the aforesaid judgment dismissed the appeal filed by the petitioner and upheld the judgment passed by the Revenue Appellate Authority dated 16.10.79 and that of the Sub Divisional Officer, Bharatpur dated August 20, 1969. The revenue suit for declaration was filed by one Jwala Prasad, who was predecessor of respondent Nos. 4 to 8 inter alia with the prayer that he should be declared Khatedar of the lands of Khasra No. 406, 407 and 408 in village Namkhera Tehsil Nadbai District Bharatpur. The Revenue Appellate Authority by its judgment dated 16.10.79 decreed that suit and thereby declared 2 the plaintiff as Khatedar. The case of the plaintiff in the revenue suit was that he was Muafidar of Biswedar in the disputed land and that the status of Muafidar of the land was of the Khudkast tenant and his name could not be entered in the column of Malik and that he should be recorded as tenant. Initially the appeal filed by the defendant-petitioner was allowed by the Revenue Appellate Authority vide judgment dated 26.11.71 and the suit filed by the plaintiff- respondents was thereby dismissed. However, the plaintiff filed an appeal before the Board of Revenue which vide its judgment dated 6.6.77 allowed the appeal and remanded the matter back to the Revenue Appellate Authority. It is thereafter that the Revenue Appellate Authority by its judgment dated 6.10.79 dismissed the appeal and upheld the judgment and decree passed by the Sub Divisional Magistrate, District Bharatpur dated 20.8.69. Further appeal filed by the defendant-petitioner Kishori Lal was dismissed by the Board of Revenue vide impugned judgment dated 28.9.87. It is against the backdrop of these facts that Kishori Lal has approached this court by assailing all the three judgments. Shri Ajay Gupta, learned counsel for the defendant-petitioner has argued that now Rajasthan Zamindari and Biswedari Abolition Act, 1959 was made applicable with effect from 3 15.11.1959 in respect of all the settled Jamindari and Biswedari estates in the State of Rajasthan by virtue of Section 4 of the said Act and by virtue of Section 4 of the Biswedari Abolition Act all rights and titles of the Biswedars vested in the State. Originally plaintiff who was merely Muafidar of the Biswedar and was not even cultivating the disputed land as khudkast and, therefore, he lost all his rights and petitioner, who was tenant of the Muafidar became the khatedar tenant of the land by virtue of Section 15 of the Rajasthan Tenancy Act and mutation was attested in his name. Petitioner was recorded as khatedar tenant pursuant to the order of the Sub Divisional Officer dated 3.2.87. Even if it is assumed that the plaintiff-respondent was a Biswedar himself, then also he lost his possession after enforcement of the Abolition Act, he could not claim himself as khatedar. Learned counsel for the petitioner supported his contentions relying upon the judgment of the Supreme Court in Budha Vs. Amilal 1991 Supp (2) SCC 41 and Bir Singh & Ors. Vs. Pyare Singh & Ors. (2000) 3 SCC 652. He has, therefore, prayed that the impugned judgments be set aside and the writ petition be allowed. Shri R.K. Pareek, learned counsel for the respondents opposed the writ petition and submitted that the learned trial court has decided issue No.1 in his favour, which was to 4 the effect that whether the plaintiff Jwala Prasad was in possession of the disputed land and was cultivating the same and after his death his legal representatives acquired the same status. In view of that finding, the Revenue Appellate Authority and the Board of Revenue were perfectly justified in dismissing the appeals filed by the petitioner and the suit with reference to Section 88 of the Rajasthan Tenancy Act was rightly decreed in favour of the plaintiff respondents. The remaining question is only the question of consequential relief under Section 188 of the Rajasthan Tenancy Act which was also liable to be decided in favour of the plaintiff. It is contended that the Sub Divisional Officer rightly held that the possession of the defendant- petitioner was unlawful and without the authority of law. The predecessor in title of defendant petitioner had acquired that possession from the respondent Jwala Prasad, who was Muafidar in the land and, therefore, mere illegally acquired possession at a later point of time of the petitioner would not vest upon them the khatedari rights. Upon hearing learned counsel for the parties and perusing the material placed on record I find that although this is a case where all the three courts Sub-Divisional Officer, the Revenue Appellate Authority and the Board of Revenue have concurrently decided the matter 5 against the defendant-petitioner, nevertheless there is also consistent finding by all the three courts that the defendant had came over the land, their predecessor in title were continuously in possession of the land and they were in possession of the said land even at the time when Rajasthan Tenancy Act 1955 was enforced. The Supreme Court in Budha's case (supra) held that in view of Section 5(4) and Section 29(1) of the Abolition Act held that mere fact of recording of the land as Khudkasht in the settlement records on the date of vesting would not be enough for a Zamindar or Biswedar to acquire Khatedari rights over the such land and it is further required that the Zamindar or Biswedar should be in possession/occupation of the said lands on the date of vesting of the estate under the Act. The possession/occupation envisaged by Section 5(4) and Section 29(1) is actual possession/occupation and not the possession of a mortgagor through the mortgagee. In the present case the same analogy would apply as the plaintiff says that he was a Muafidar of Biswedar and that he was not in actual possession and therefore, he cannot be held to have symbolic possession of the land in dispute by assenting that possession of the defendant was unlawful. I Bir Singh (supra) this position has further been clarified by Supreme Court in somewhat similar circumstances. It was held that a Zamindar, who is in 6 possession/occupation of khudkasht land on the date of vesting of the estate becomes a khatedar tenant on abolition of the zamindari right under Section 29 of the Zamindari Abolition Act. Under the said section 29, a Zamindar becomes a malik, of the khudkasht land in his occupation and as malik he shall be entitled to all the rights conferred and all the liabilities imposed on a khatedar tenant by or under the Act. It follows as a corollary that if the Zamindar is not in occupation of the khudkasht land on the date of vesting, he is not entitled to claim khatedari right in the land. The scheme behind this provision is that if a Zamindar or Biswedar is in actual occupation of cultivable land on the date of abolition of his zamindari right, then he should continue to be in possession of such land. This is in accordance with the object of bringing about agrarian reforms by giving the land to the person in cultivating possession of the land. If the Zamindar is not in occupation of the khudkasht land on the date of vesting then such “land” vests in the State along with the other “lands” subject to the provisions in the Zamindari Abolition Act. In respect of such land the Zamindar is not entitled to claim any right of possession and consequentially is not entitled to maintain a suit for recovery of possession of the land from any other person. The Supreme Court quashed the orders passed by the Revenue courts 7 including that of the Board of Revenue. By virtue of Section 15 of the Rajasthan Tenancy Act, khatedari rights have been conferred upon the defendant-petitioner which inter alia provides that subject to the provisions of section 16 [and clause (d) of sub-section (1) of section 180] every person who, at the commencement of this Act, is a tenant of land otherwise than as a sub-tenant or a tenant of khudkasht or who is after the commencement of this Act admitted as a tenant otherwise than as a sub-tenant or a tenant of Khudkasht or an allottee of land under, and in accordance with, rules made under section or who, acquires Khatedari rights in land in accordance with the provisions of this Act or of the Rajasthan Land Reforms and Resumption of Jagirs Act 1952 (Rajasthan Act VI of 1952), or of any other law for the time being in force, shall be a Khatedar tenant and shall, subject to the provisions of the Act be entitled to all the rights conferred, and be subject to all the liabilities imposed on Khatedar tenants by this Act. Sub-section 2 of Section 15 further provides that notwithstanding anything contained in sub-sec.(1) Khatedari rights shall not accrue thereunder to any person to Whom land had been let out before the commencement of this Act by the State Government in furtherance of the “Grow More Food Campaign” or under some special order or subject to some 8 specified conditions or in pursuance of some statutory or non-statutory rules and who shall have, before such commencement, made a default in securing the objective of such campaign or a breach of any such order, condition of rule. Since the impugned judgments have been passed by the Revenue Courts in the suit filed by the Muafidar of Biswedar seeking a declaration for himself that he should be declared a Khatedar, therefore, this court is not required to make a detailed analysis of the correctness of khatedari rights of and the mutation in favour of the defendant-petitioner by treating him as a khatedar. However, if a Biswedar himself as per ratio of the aforesaid two Supreme Court judgments could not be declared Khatedar because he was not in actual possession of the land, there was no question of a Muafidar of the Biswedar being declared as Khatedar tenant. In view of the aforesaid discussion, the impugned judgments passed by the Board of Revenue dated 28.9.87, judgment passed by the Revenue Appellate Authority dated 16.10.79 and of the Sub Divisional Officer, Bharatpur dated August 20, 1969 cannot be sustained in law and are accordingly set aside. This writ petition is accordingly allowed. Parties to bear their own costs. ( MOHAMMAD RAFIQ ) J. MRG.