CW 6389/98 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.6389/1998 Kanhaiyalal Versus Board of Revenue & Ors. Date of Order ::: 26/02/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Pratap Singh Sirohi, for petitioner Mr. Chetan Bairwa, Addl. Govt. Advocate for respondent-State Instant petition has been filed assailing order dt.14/07/98 (Ann.3) of the Board of Revenue whereby while accepting appeal preferred by respondent No. 2 & 3, matter was remanded back to the Assistant Collector (original authority) to examine afresh on merits taking note of directions thereunder. Petitioner, as alleged, is a member of Scheduled Caste and purchased the land bearing Khasra No.1402 situated in village Kot-Khavda Tehsil Chaksu (Jaipur district) measuring 5 Bighas & 6 biswas, from one Mulya s/o Seonarain by caste Meena (Scheduled Tribe) by a registered sale deed and on the basis of aforesaid transfer, land in question was mutated in revenue record in name of petitioner despite the fact that there was a statutory bar U/s 42 of Rajasthan Tenancy Act, 1955 (“Tenancy Act”) that agricultural land belonging to Scheduled Caste & Tribe could not be transferred to persons other than of their community. CW 6389/98 //2// Petitioner filed a suit for injunction U/s 188 of Tenancy Act for restraining respondents herein from cultivating and peaceful possession of suit land, which is alleged to be recorded in khatedari rights of petitioner. After trial, Asstt. Collector, Chaksu (Jaipur) vide judgment dt.27/01/93 (Ann.1) observed that such transfer of suit land in name of petitioner was void in view of S.42 of Tenancy Act and holding his possession to be illegal over the suit land, accordingly held that he was not entitled to seek injunction against respondents. At the same time, while holding that respondents have also failed to show that they were in possession of suit land, finally observed that since the transaction, itself was void and the original khatedar Mulya has not complained of; the suit land be vested in the State Government and no relief could be granted to the petitioner and accordingly dismissed the suit of petitioner seeking injunction U/s 188 of Tenancy Act, against which petitioner preferred appeal where, Revenue Appellate Authority observed that since petitioner was in possession of suit land and the suit was filed only seeking injunction and not for declaration; and if at all respondents have any objection against transfer of suit land by Mulya and about mutation recorded in favour of CW 6389/98 //3// petitioner, proceedings could have been initiated U/s 175 of Tenancy Act and which could not be looked into within scope of limited prayer in suit for injunction U/s 188 of Tenancy Act; consequently, suit was decreed by Revenue Appellate Authority vide judgment dt.01/12/93 (Ann.2); against which respondents herein preferred further appeal before Board of Revenue where after hearing the parties, observed that the State of Rajasthan was one of necessary party to the suit which petitioner having failed to implead, and that apart, there is no material on record, by which any inference could be drawn to show that petitioner was holding possession of suit land under law and the same time, respondents also failed to produce documentary evidence, by which inference could be drawn about possession over the suit land and while partly accepting the appeal, vide judgment dt.14/07/98 (Ann.3) the Board of Revenue remanded the matter back to the Asstt. Collector (original authority) with the direction to implead State of Rajasthan as necessary party and the liberty was granted to the parties to produce documents in support their claims and counter-claims and thereafter to decide the matter afresh in accordance with law. Hence this appeal. While notices were issued by this Court CW 6389/98 //4// on 10/12/98, two questions were taken note of while calling upon respondents as to whether the State was necessary party and whether the case ought to have been remanded back to the original authority or revenue appellate authority. Counsel for petitioner submits that since suit for injunction was filed against respondents and no relief was sought for against State; as such there was no occasion for them to implead the State as party respondent and very finding recorded by Board of Revenue under judgment impugned (Ann.3) is not legally sustainable. Counsel further submits that the revenue authority after taking note of material on record, recorded the finding of fact in holding possession of petitioner over the suit land and once petitioner was in possession of suit land, which was purchased by registered sale deed and duly mutated in his name, certainly confers right to get others restrained from interfering in peaceful possession by seeking injunction U/s 188 of Tenancy Act and more so while there was was no documentary evidence on record by which any adverse inference could be drawn of his possession, the Board of Revenue committed an apparent error in remanding the matter back to the original authority. However, Counsel submits that if at all the Board of Revenue arrived at CW 6389/98 //5// conclusion about a fact being not supported with material on record, the matter could have been at best remanded back to the revenue appellate authority but remand of matter to original authority was not legally sustainable. Court for respondents while supporting finding recorded by Board of Revenue, however, submits that the suit was filed by petitioner seeking injunction and in absence of a valid title of suit land which apparently was not disputed, in view of S.42 of Tenancy Act, the suit land could not have been transferred in name of petitioner on account of there being statutory bar and on the basis of such void transaction, if land was mutated in favour of petitioner, and the State being custodian of records, explanation could have been made only by the State as to on what basis an agricultural land could be recorded and mutated in favour of petitioner. Counsel further submits that S.175 of Tenancy Act will not come in his way since it has not been questioned by him and having never approached seeking injunction against petitioner, at the same time, petitioner preferred suit, the bar as provided under S.175 of the Act will not be of any significance, with regard to examination of objections U/s 42 of the Act. Counsel further submits that since basic question CW 6389/98 //6// which goes to the root of the matter, could be examined only by original authority before which evidence can be led and appreciated, which is completely missing from material on record; no error has been committed by the Board of Revenue in remanding the matter to the original authority which certainly would afford opportunity to the respective parties permitting to lead their evidence in respect of their claims and no prejudice in any manner could have caused to petitioner, as well. I have considered contentions of Counsel for parties and with their assistance examined material on record. S.42 of Tenancy Act bars transfers of land belonging to members of Scheduled Caste & Scheduled Tribe in favour of persons who are not member of their community and once objection was raised with respect to statutory bar U/s 42 of the Act, the authority was under obligation to examine and record its finding. Petitioner has given justification that statutory bar under the Act will not come in his way and the land was rightly transferred and mutated by revenue department in accordance with law. But the Board of Revenue while examining the issue to the effect of bar, has observed and considered it prima facie to remand the matter so as to afford opportunity to show as to whether CW 6389/98 //7// mutation has been made in his favour as per provisions of law – on the basis whereof, any possession over the suit land could be retained by petitioner. At the same time, Board of Revenue also observed that no material has been brought on record by either side why which any inference could be drawn about possession over the suit land; and thus considered it proper to remand the matter back to original authority where the party may have an opportunity to lead evidence in respect of their claim or counter-claim and has rightly not recorded any finding as it may cause prejudice to either of parties. As regards impleadment of State Government as party respondents, suffice it to say that based on transfer in question, mutation was made in the name of petitioner in revenue record, and the State Government being the custodian of record to disclose as to on what basis, the suit land was transferred and mutated in favour of petitioner and original authority will adjudicate the effect of S.42 of the Tenancy Act. This court does not find any manifest error which may call for interference. Consequently, writ petition fails and is hereby dismissed. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.7/6389CW98Fb26.doc