SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 1/43 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. 1. S.B. CIVIL WRIT PETITION NO.330/1996 Ghan Shyam Singh . Versus 1. The State of Rajasthan through the Tehsildar, Pali. 2. Collector, Pali. 3. Assistant Collector (Revenue), Pali. 4. Board of Revenue for Rajasthan at Ajmer. 5. The Jagir Commissioner, Rajasthan Bank Park, Jaipur. 6. Magha Ram S/O Sh. Chaina Ram 7. Jamna Ram alias Gamna Ram S/O Sh. Kesa Ram. 8. Madho Singh Dewan 9. The Commissioner, Deosthan, Udaipur. 2. S.B. CIVIL WRIT PETITION NO.2834/1997 Shakti Nagar Grih Nirman Sahkari Samiti Limited . Versus 1. The State of Rajasthan through the Tehsildar, Pali. 2. The Board of Revenue for Rajasthan at Ajmer. 3. Mandir Shri Aimataji 4. Jamna Ram S/O Sh. Kesa Ram. 5. Ghanshyam Singh S/O Prithvi Singh 6. Madho Singh Deewan S/O Hari Singh Rajput. 7. Magha Ram S/O Sh. Chaina Ram Sirvi. PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr.L.R.Mehta, } Mr.T.S.Champawat } for the petitioners. Mr.J.L.Purohit } Mr.Vijay Bishnoi } Mr.V.S.Choudhary } for the respondents. Mr.O.P.Boob } SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 2/43 Date of judgment : 24.9.2008 REPORTABLE BY THE COURT: 1. These writ petitions are directed against the order of Single member of Board of Revenue Annex.21 dated 1.11.1994 and Division Bench order Annex.23 dated 30.5.1995 whereby the Board of Revenue in exercise of their power under sec. 221 of Rajasthan Tenancy Act quashed and set aside the decree of the Assistant Collector, Pali dated 24.4.1973 (Annex.13) in favour of the petitioner Ghanshaym under section 88 of the Rajasthan Land Revenue Act. The Board in exercise of its powers under Section 221 of the Rajasthan Tenancy Act did so on the application of the private respondents, namely, Sh. Magha Ram and Jamna Ram - respondents No.6 and 7 in the present writ petitions. 2. Being aggrieved by the said order, the petitioner has approached this Court by way of present writ petition with the following averments: (a) The land for which the dispute relates is known as Bera Rodawa Bawadi consists of old survey No.1148 to SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 3/43 1154 and 1156 to 1167 in all 19 survey numbers total measuring 34 bighas and 0.5 biswas of which present survey No.s are 1420 measuring 0.9 biswas, 1421 measuring 1 bigha and 1422 measuring 32 bighas and six biswas total measuring 34 bighas and 0.5 biswas. (b) These lands were originally granted by the erstwhile sovereign ruler of Marwar State, Maharaja Jaswant Singh in the Samwat year 1936 to the predecessors – forefathers of the non- petitioner No.8 – Madho Singh Deewan. The family tree of the non- petitioner No.8 so far known starts from Sh. Shivdan Das Ji whose son was Sh. Laxman Das Ji. The aforessaid patta was granted in favour of Sh. Shakti Das mentioning the names of forefathers also. (c) Shakti Das Ji had a son Sh. Pratap Singh, who succeeded him and from Pratap Singh his son Hari Singh succeeded him. Deewan Madho Singh non-petitioner No.8 was minor at the time of death of Sh. Hari Singh Ji and hence his jagir of which the disputed land was also a part was to be in Court of Wards in the erstwhile State of Marwar under the State Guardianship of Thakur Govidn Singh Ji of Chandawal. SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 4/43 (d) At the relevant time, the afoersaid lands were shown as the personal properties of the jagirdar in the Court of Wards, in the list of property submitted at that time. (e) Consequent to the passing of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952, the non- petitioner Deewan Madho Singh's Jagirs were also resumed on 1.7.1955. Since the aforesaid lands were the personal property of the Jagirdar, the aforesaid land, which is the only personal land of the non-petitioner No.8 in Revenue Villagek Pali, a claim was made for this land before the Jagir Commissioner in form No.5. This land is shown at item No.4, Pali, 15 acres with the income of Rs.201/-. The Jagir Commissioner after enquiring into the full claim came to the conclusion that Bera Rodawa Bawadi Tehsil Pali is the personal property of the non-petitioner Deewan madho Singh, which is liable to be resumed consequent to the Resumption Act. This judgment was passed on 3.1.1958. There is a letter of the Jagir Commissioner on record since 12.9.1958, wherein also at item No.4, it has been mentioned that property Bera Rodawa Bawadi, Tehsil Pali is liable to be SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 5/43 resumed and the petitioner is entitled to be compensation for the same and consequently this Jagir was resumed and compensation was duly determined and paid to Deewan Madho Singh – non-petitioner No.8. (f) The proceedings for resumption of Jagir relating to the then Jagirdar Madho Singh who was minor and the Jagir of Bilara was administered by the Court of Wards and during the process of resumption of Jagirs, the claim filed by the Court of Wards on behalf of the then Jagirdar before the Jagir Commissioner. The whole record of the resumption of jagir of Ex-Jagirdar Madho Singh Vakey Bilara was with the Jagir Commissioner. During the process of enquiry the Jagir Commissioner made a detailed enquiry about the jagir of Deewan Madho Singh and framed three questions (1) jagir which is in grant of Deewan (2) jagir which is in the name of Aimataji and (3) other lands and after due enquiry it was held that the land belonging to jagir shall be resumed and the land belonging to Aimataji Vakey Bilara shall be exempted from the resumption and vide Jagir Commissioner order dated 3.1.1958 it was held that Bewari Rodawa situated in Pali shall be resumed. However, inspite of efforts, petitioner could not get the SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 6/43 certified copy of separate order, if any dated 3.1.1958, but the compliance order in pursuance oforder dtd.3.1.1958 was issued on12.9.1958. (g) So far as finding of Bera Rodawa Bawadi is concerned, the same is given at page 7. Bera Rodawa Bawadi was held to be in personal Jagir of Deewan not the property of Aimataji. (h) As such the above land was Jagir land as defined under Sub-section 22 of Section 5 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act of 1955) of the then Jagirdar Vader Bilara Deewan Madho Singh. This personal Jagir of Deewan Madho Singh stood resumed by proceedings under the Rajasthan Land Reforms and Resumption of Jagirs Act. (i) The petitioner Ghanshyam Singh was the tenant in the aforesaid Jagir land of Deewan Madho Singh and consequent to the resumption of the Jagir since he was in continuous cultivatory possession of the aforesaid land much prior to the relevant date, the right as a khatedar tenant stood accrued and conferred upon him by operation of law automatically and hence he moved an SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 7/43 application for correction of the Revenue Record. Since this application related to the Tehsil Pali, the same was sent to the Settlement Officer to the Assistant Land Record Officer, Pali wherein the Kamdar, Toshakhana Badher also filed an application admitting the claim. The learned Assistant Land Record Officer recorded evidence of Jawan Singh and Bhagwati Lal and also perused the relevant Revenue record including the Revenue record Girdawari of samwat year 2009-2015. The learned Revenue ordered that the petitioner Ghan Shyam Singh be entered as a khatedar tenant and in place of Deewan Hari Singh, Deewan Madho Singh be entered as Jagirdar. (j) Consequent to this decision, the record was duly corrected and the petitioner continued to be in possession as a khateadr tenant and Parcha lagan was issued in the name of Ghan Shyam Singh and Jamabandi continued in the name of the petitioner till 1968. ( k ) Thereafter when the petitioner's name was omitted from the Revenue record, the petitioner filed a Revenue suit under Section 88 of the Act, which was decreed in his favour on 24.4.1973 by the Assistant Collector, Pali. Out of 34 bighas and 0.5 biswas of land in question, the SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 8/43 petitioner is said to have sold 22 bighas and 6 biswas of land of survey No.1422 by registered sale-deed dtd.11.6.1984 in faour of one Sh. Shakti Nagar Housing Cooperative Society Limited, Pali, which is another petitioner before this Court in writ petition No.2834/1997, which is also being disposed of by this common order. 3. The petitioner has further averred in para 16 that despite the private respondents having tried to seek reference to the Board of the Revenue under Section 232 of the Act through Collector, Pali vide reference No.54/87, but the same was dismissed by the learned Collector, Pali vide order dtd.23.4.1991. Another reference, namely, 18/87 in which it was claimed that the land in question belonged to deity Aimataji situated at Bilara was also dismissed on 23.4.1991. 4. The petitioner has also stated in para 19 of the writ petition that another suit has been filed on behalf of deity Aimataji through various persons belonging to Sirvi caste, which is registered as Suit No.1/84, which is still pending with the SDO, Pali. 5. The cause of action to the petitioner arose when these privates respondents filed an application under Section 221 of the Act for quashing of the decree dtd.24.4.1973 and the order passed by the SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 9/43 ARO dated 20.3.1959 and the Board in exercise of its powers under Section 221 of the Rajasthan Tenancy Act which vests the power of general superintendence and control over all the Revenue Courts, quashed and set aside the said decree dtd.24.4.1973. Hence, this writ petition was filed by the petitioner in this Court. 6. Sh. L.R.Mehta assisted by Sh. T.S.Champawat vehemently submitted that the Board of Revenue has grossly erred in invoking its jurisdiction under Section 221 of the Act when earlier the reference for same grievance raised by the respondents had been turned down by the Collector, Pali and that order became final and a very old existing decree dtd.24.4.1973 which concluded the tenancy rights of the petitioners over the land in question, could not be set aside by the Board. He further alleged that the land in question was personal jagir of Deewan Madho Singh's ancestors which stood resumed on 1.7.1955 under the Jagir Resumption Act, 1952 and for which compensation was also determined and paid to the ancestors of Madho Singh vide Annex.4 and office-note Annex.5 and though the original Jagir resumption order dtd.3.1.1958 could not be made available by the petitioner before this Court as he had applied for certified copy of the same, but the same was not made available to him as the relevant record was not traceable, but without referring and quashing and setting aside that Jagir Resumption order dtd.3.1.1958, the Board of Court could not quash and set aside the decree SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 10/43 dtd.24.4.1973. He submitted that though the order of the Division Bench of the Board of Revenue refers on page 4 of the order dtd.30.5.1991 to the Jagir Resumption order dtd.3.1.1958 of the Jagir Commissioner, but the same was not believed because the said order was not produced before the Board of Revenue. He submitted that the said order was clearly Ex.3 on record of the suit in which the decree dtd.24.4.1973 was passed by the learned Assistant Collector, Pali and which decree was being set aside by the Board of Revenue. Therefore, it was incumbent upon the Board of Revenue to refer in detail the said order of Jagir Commissioner and then only on cogent reasons if it could set aside and quash that order, it could do so and thereafter only it could pronounce upon the validity of the decree dtd.24.4.1973. He therefore, prayed that the Board of Revenue has erred in exercising its powers under Section 221 of the Act in absolutely erroneous manner and therefore, the impugned order deserves to be quashed and set aside. 7. These arguments are vehemently opposed by Mr. Vijay Bishnoi, learned counsel appearing for the private respondents No.6 Magharam, who strongly urged taking the Court through various documents, produced with the reply of the respondents that the land in question belonged to deity Ai Mataji and therefore, he submitted that entire land comprised of 327 bighas which vested in deity Aimataji and therefore, the said land could not be held to be personal SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 11/43 Jagir of Deewan Madho Singh's ancestors, namely, Laxman Das, Shakti Das, Pratap Singh and Hari Singh respectively. He referred to following documents in extenso in support of his submission. S. No. Annexure Documents Page No. 1 R6/8 Khewat Khatoni Pali 1571 showing Mandir Aimata as Khatedar in column No.4 entry of khud kast in column No.5 232 2 R6/9 Khatauni Mauja Kasba Pali, pertaining to Samwat year 1881 showing possession and Khatedari of mandir Aimata. 237 3 R6/10 Khatauni Mauja Kasba Pali pertaining to Samwat year 1998 showing possession and khateadri of Mandir Aimata. 239 4 R6/13 Order dated 22.7.1931 passed by Mufi affair Pali whereby the doli of temple Aimata ji was confirmed for 327 bighas and 16 biswas 8. Mr. Vishnoi further submits that following documents show that the petitioner obtained khatedari rights over the land in question by collusion with Deewan Madho Singh : S. No. Annexure Documents Page No. 1 R6/1 Appliation submitted by minor Ghanshyam Singh for correction of records. 216 2 R6/2 Copy of the plaint preferred by Ghanshyam U/s 88 of the Rajasthan Tenancy Act before Assistant Collector, Pali ion 19.2.1973. 218 3 R6/3 Statement of Prithvi Singh (father of petitioner) Ghanshyam Singh recorded in suit filed by Ghanshyam Singh vide Annexure R6/2. 221 SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 12/43 S. No. Annexure Documents Page No. 4 R6/4 Copy of plaint preferred by Prithvi Singh (father of petitioner) and Chetan Prakash (brother of petitioner) and petition in S.B. Writ Petition No.2834/90 under Section 80 and 53 of Rajasthan Tenancy Act on 26.11.1983 223 5 R6/6 Khasra Milan 229 9. For these documents, averments made in the reply filed by the respondents No.6 and 7 are as follows: “(a) That the petitioner had filed an applciation before the Assistant Land Record Officer, Pali on 8.1.1958 stating therein that he has been in possession of Khasra No.1148, 1154, 1156 to 1167 and 1625 for last five years and has continuously been cultivating the land, therefore, the entries in the record may be corrected. It was on this application that the order Annexure 9 was passed by the Assistant Record Officer, Pali, which has been quashed by the Board of Land Revenue. It is respectfully submitted that the petitioner has shown his age in the affidavit in support of the writ petition as 48 years in 1996 which means he was born in the year 1948. it is beyond imagination that he was cultivating the land personally in the year 1953 when he was hardly 5 years of age. This alone goes to show that the land of Deity SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 13/43 Shri Aimataji has been sought to grabbed and therefore, the learned Board of Revenue has rightly intervened and has rightly come to the conclusion that the orders dated 20.3.1959 and 24.4.1973 are void ab initio. ( b). That the petitioner has made contradictory statements regarding ownership of the lands inasmuch as in the revenue suit filed by the petitioner before the Assistant Collector, Pali on 19.2.1973 seeking declaration of his khatedari rights over 33 bighas 19 biswas of land, the petitioner had claimed that this land as well as land comprised in khasra No.523 measuring 294 bighas 1 biswa was Jagir lands and the petitioner was a tenant of Jagirdar. In this suit the petitioner himself never appeared in the witness box to support the plaint and instead his father Prithvi Singh appeared in the witness box and deposed totally contrary to the averments made in the plaint inasmuch as Prithvi Singh deposed before the Sub Divisional Officer, Pali on 31.3.1973 that land measuring 327 bighas 16 biswas was purchased by the petitioner from Madho Singh ( non- petitioner No.8). (c). That the answering respondents have been able to SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 14/43 lay hand on a plaint filed by the father and brother of the petitioner before the Sub Divisional Officer, Pali on 26.11.1983 under Section 88 and 53 of the Rajasthan Tenancy Act for partition of the lands in dispute measuring 33 bighas and 15 biswas comprised in Khasra No.1420, 1421 and 1422 (the part of the land of Deity) wherein the plaintiff's father and brother claimed that these lands belong to Hindu Undivided Family and the plaintiffs are the joint khatedars of the land. This further shows that the another contradictory statements regarding ownership of the land was made by the father of the petitioner by filing the suit, of course, said suit was subsequently withdrawn. (d). It is wrong to contend that the dispute relates to 34 bighas and 5 biswas of land. In fact, the Deity Shri Aimataji held 327.16 bighas of land only. A copy of the Milan Khshetrapal prepared by Government of Jodhpur in the S.Y.1998 showing the entire land of the Deity Shri Aimataji is submitted herewith and marked as ANNEX.R6/5. The petitioner has claimed Khatedari rights mentinoed in the plaint Annexure-R6/1 to be the owner of 294.1 bighas of alnd comprised in khasra No.523 (formerly known as khasra No.1625) which land SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 15/43 also belongs to the Deity and the entire 327.16 bighas of land was the subject matter of dispute before the learned Board of Revenue, still the petitioner has mentioned in this para that the dispute relates only to 34 bighas 5 biswas only and has intentionally produced partial record. The answering respondents also places herewith Milan Kshetrapal prepared during land consolidation proceedings held in S.Y. 2019, which is marked as Annnexure R/6/6. The petitioner while submitting application before the Assistant Record Officer, Pali Annexure-R/6/1 sought correction of record in Parcha Lagan No.258, a certified copy whereof is submitted herewith and marked as Annexure-R6/7, which also shows the total land to be 327 bighas 16 biswas. All these documents go to show that the land in disptue is 327.16 bighas and not merely 34 bighas 5 biswas as claimed by the petitioner in this para. In fact the total land measuring 327 bighas 16 biswas was given in Maufi to temple Shri Aimata by the erstwhile State of Jodhpur and was recordd in the States' record. ( e) Firstly this patta was never produced before the SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 16/43 learned Board of Revenue by the petitioner and therefore, this cannot at all be produced before this Hon'ble Court in extraordinary jurisdiction under Article 227 of the Constitution of India. Neither any description of Khasra numbers has been given in the patta nor even the quantum of the land has been given. The answering respondents assert that this Patta does not realte to the land in question. ( f). The petitioner has failed to establish that the land in question was the Jagir land of any of the persons mentioned in this para. In fact, the land in question measuring 327 bigha and 16 biswa is the land of Deity granted to it in Mafi by erstwhile State of Jodhpur Marwar. (g). The petitioner has not produced any judgment of Jagir Commissioner before the learned Board of Revenue as would be evident from Annexure 23. (h) The land belonging to the Deity allotted by the Ex- Ruler of Jodhpur State could never be comprised in Jagir of Deewan Madho Singh. Annexure 4 no where shows the description of land in dispute, however, as submitted SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 17/43 above the land of deity could not be resumed by the Jagir Commissioner. The theory of inclusion of land in question in the Jagir of Deewan Madho Singh has been created as an afterthought. Annexure – 35 does not even disclose the alleged date of decision i.e. 3.1.1958 as claimed by the petitioner in this para. Even the letter of the Jagir Commissioner dated 12.9.1958 no where depicts the details of the land viz. Khasra number, quantum of the land etc. and hence all these documents Annexures -4 and 5 and letter dated 12.9.1958 are wholly irrelevant and do not prove any title of Diwan Madho Singh or his predecessors over the land in question. ( i ) As submitted above, the petitioner has completely failed to establish that the lands in question were the Jagir lands of Diwan Madho Singh. The answering respondents asserts that the land measuring 327 bighas and 16 biswas belonged to Aimataji Bader Bilara. ( j) As submitted above, the land in question having been granted in Mafi to the Deity measuring 327.16 bighas could not be included in the Jagir of Diwan Madho Singh nor there could be any question of resumption of these lands under the Rajasthan Land SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 18/43 Reforms and Resumption of Jagir Act, 1952. The learned Board of Revenue has recorded findings of fact based on the revenue record that the land belongs to Deity Aimataji and this finding of fact does not call for any interference by this Court in certiorari jurisdiction. However, the answering respondents maintain that the petitioner has completely failed to prove the land to be Jagir land and it is established that the land belongs to Deity Shri Aimataji. (k) As submitted above, the petitioner has shown his age in the affidavit sworn in support of the writ petition as 48 years in 1996 that means he was born in 1948. The Jagir Act came into force in the year 1952 and the petitioner claims resumption of Jagir on 1.7.1955 and at that time, the petitioner was 7 years of age then how he was a tenant or was he cultivating the land personally. ( l ) At this junction, it may be submitted that the petitioner had filed the suit before the Assistant Collector, Pali for declaration of his khatedari rights ( a certified copy whereof has been submitted as Annexure R/6/2). In that suit the petitioner himself never appeared to support the averments of the plaint nor there is any SBCWP NO.330/1996 – GHANSHYAM SINGH V/S STATE OFRAJASTHAN AND ORS..AND SB.CWP NO.2834/97 : JUDGMENT DTD.:24.9.2008 19/43 written statement on behalf of the State on record, document Ex.1 (Khatoni S.Y.2019) did not even contain the name of Dewan Madho Singh (respondent) who was arrayed as defendant No.1, Ex.3 (Annex.6) produced by the petitioner before the trial Court was merely a notice of Jagir Commissioner still the learned Assistant Collector decreed the suit treating Annexure 6 to be judgment of Jagir Commissioner or