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The Revenue Recovery Act, 1890
The Indian Evidence Act, 1872
Nath Singh And Others vs The Board Of Revenue And Others on 21 March, 1968
Article 226 in The Constitution Of India 1949

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Rajasthan High Court
Prahlad And Ors. vs Board Of Revenue, Rajasthan, ... on 12 April, 1983
Equivalent citations: AIR 1984 Raj 55, 1983 WLN 117
Author: G Lodha
Bench: G Lodha

ORDER

G.M. Lodha, J.

1. These three writ petitions are directed against the common judgment of the Board if Revenue, Rajasthan, Aimer dated the 22nd January 1973 by which three second appeals against the Municipal Board Bhawani Mandi were disposed of.

2. These three second appeals were filed in three suite namely, No. 265/1960, 266/1960, 264/1960 which were decided by the Assistant Collector, Jhalawar, under Section 183 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as "the Act') vide a common order of 14th Oct 1968 (Annexure 8).

3. The petitioners denied the allegations made by the Municipal Board in the suits and contended that the suit land was a Mafi Jagir and under the Mafi of one Pawangir. From the time of Pawangir, the petitioner--Prahlad's father-- Manga was in possession as a sub-tenant of the Mafidar for the last 35 years and as at the time of resumption of Mafi he was a sub-tenant, he became the Recorded Tenant and by virtue of law he became the statutory Khatedar tenant of the land in question and as such the Municipal Board is not entitled to eject the petitioner from the land in question. It was further contended by the petitioners that the Municipal Board had filed a suit against the petitioner's father in respect of the same land and for the same cause of action in the court of Assistant Collector, being suit Nos. 265, 266, and 264 of 1360 and that suits having been dismissed the Municipal Board was not entitled to bring the present suit in respect of the same land for same cause of action as the same was barred under the law. It was contended that the Municipal Board never came to be in possession of the land in question nor it came to its Khata. The entries which came to be made later on in the revenue records were got entered in collusion with Patwari behind the back of the petitioner. Various other pleas about the maintainability of the suits were also taken in the written statement dated the 26th June, 1963 (Annex-ure 2).

4. The petitioners submitted Khasra Girdawari for the Samvat year 2005 to 2008, 2010 to 2013, 2013 to 2016, 2017 to 2020 and 2021 to 2024 (Annexures 3 to 7). The Municipal Board filed the Jamabandi for the Samwat Years 2016 to 2019 and also Khasra Girdawari for the Samwat Years 2017 to 2020, in support of their rival contentions.

5. In all these suits the respondents-plaintiff contended that the land in question was in the Khatedari of the plaintiff-Municipal Board and the defendants were trespassers, over this land in dispute. The defendants petitioners contested the suits and submitted that they were Khatedars as they were cultivating the land in dispute for the last 35 years.

6. After the issues were framed and the evidence was recorded, the suits (supra) were dismissed by the trial Court. However, the first appellate Court decreed the suit and reversed the order of the trial Court. The Board of Revenue confirmed the judgment of the first appellate Court in all three cases.

7. In the present two writ petitions, while the arguments were being heard, the learned counsel for the parties submitted that the third writ petition which is pending on account of the application for bringing legal representatives on record because of death of Mathuralal S/o Narain Kalal, should also be taken up and be decided together. The joint request of the learned counsel for the parties was accepted and the third writ petition of Mathuralal is also being decided by this consolidated order, as prayed.

8. Before I deal with the merits of the writ petitions. I must mention that, Mathuralal expired on 1st January, 1978 and since no steps were taken for bringing the legal representatives on record and the application was moved by Shri Dalip Singh, the learned Advocate, appearing on behalf of the Municipal Board, Bhawani Mandi on 25th March, 1983 that the writ petition has abated and the same should be dismissed, as legal representatives of the petitioner, Mathuralal, the deceased, have not been brought on record.

9. Shri Rastogi, the learned Advocate for the petitioners, has now moved an application on April 18, 1983 duly supported by the Affidavit of Jagdish Pra-sad S/o. Methuralal that, he was not aware of the pendency of this writ petition and he came to know of it only when he received a letter of his counsel dated 26th March, 1983.

10. The arguments were also heard on this application as there are serious objections of Shri Dalip Singh to entertain this application for substitution after the delay of 5 years. However, in the facts and circumstances of the case, I am inclined to allow this application and, therefore, I permitted Shri N. C. Rastogi, to represent the petitioner Jagdish Prasad and, heard his arguments in the main case. The name of Mathuralal therefore, stands substituted by the name of his son, Jagdish Prasad and the necessary corrections may be made in the writ petition's cause title by the office.

11. The main controversy in these petitions relates to an important question of law raised by Shri Rastogi and vehemently contested by Shri Dalipsingh that since, the defendants-petitioners now before this Court were in possession of this land for the last 35 years, they have become khatedars under Section 19 of the Act and, therefore, they cannot be considered as trespassers as has been done by the Revenue Appellate Authority and the Board of Revenue. It was also argued that the Board of Revenue has failed to show how it became Khatedars and, unless a regular enquiry is made and a detailed order with reasoning is given for changing the entry merely by removing the name of Mafidar-Pawangiri and substituting the name of Municipal Board, Bhawani Mandi, legal entry would not come into existence. Shri Dalipsingh, on the contrary, submitted that this Court is now deciding a writ petition under Articles 226 & 227 of the Constitution of India and, since all that is to be seen is whether any error apparent on the face of record or any error of jurisdiction has been committed or not, this Court cannot revise the order even if the two views are possible. It was further pointed out that, so far as the defendant-petitioners are concerned, they have not submitted revenue record consisting of Khasra, tip or Khatoni as required by the provisions of Rajasthan Land Revenue Act, 1956 (hereinafter referred to as 'the Act of 1956,) and the Girdawari entries cannot become any basis of any rights under the Revenue law.

12. The rival contentions of the learned counsel for the parties were examined by me, at length. I have also perused all the relevant record, referred to by the learned counsel for the parties along with the judgment of the three Courts and, have given my thoughtful consideration to the various questions raised by the parties during the course of arguments.

13. Both, the Board of Revenue and Revenue Appellate Authority have given a concurrent finding that, the defendants-petitioners were trespassers and cannot be treated as Khatedars, as held by the trial Court. The basic reason which found favour before them, appears to that, whereas the petitioners have been shown as Khatedars so far as the defendants are concerned, they have not been recognised as Khatedars or found even sub-tenants in the revenue record of rights, even though, they have been shown as in cultivating possession for sufficiently long time.

14. It would be pertinent here to mention that the learned Revenue Appellate Authority has further held that the defendants have failed to prove, when and how they came into possession of this land in dispute from Mafidar or Jagirdar, whosoever, he was of this land and, if they were sub-tenants, no proceedings were taken for getting Kha-tedari rights. The Revenue Appellate Authority and Revenue Board were further of the view that the existence of Chabutra duly constructed by the Municipal Board, Bhawani Mandi on the land in dispute is not disputed and the Jamabandi has not been produced. The Authority and the Board then discussed the entries of the Girdawari and further held that in the absence of production of the copies of the record of rights in the forms of Jamabandi, Khasra tips, and khewat khatauni it cannot be held merely on the basis of Khasra gast Girdawari that the defendants are sub-tenants as Gast Girdawari is not 'record of rights'.

15. It was further held that in a suit under Section 183 of the Act, the trial Court had no jurisdiction to declare the defendants as Khatedars under Section 19 of the Act.

16. Before I proceed further, it would be necessary to have re'sume' of the provisions of the Rajasthan Land Revenue Act in respect or the 'record of rights'. Chapter VII-D Record of Rights commences with Section 113. The 'record of rights', itself, is prepared by the Land Records Officer. Section 114 prescribes that the 'record of rights' would consist of the following, namely:--

(a) a khewat, this is to say, a register of all estate-holders in the area under survey and record operations or under record operations, specifying the nature and extent of the interest of each and his co-sharers, mortgagees in possession and persons holding land from him otherwise than as tenants, if any;

(b) a khatauni, that is to say, a register of all persons cultivating or otherwise holding or occupying land in such area, specifying the particulars required by Section 121;

(c) a register of all persons holding land in such area free of rent or revenue; and

(d) such other registers as may be prescribed.

Section 115 prescribes that the claims should be invited if record of right is prepared during record operation and the Form No. 5 is the proclamation which is to be done. Section 120 prescribes, the Register of villages to be prepared by the Land Records Officer, which should contain a list of all villages in the area under survey and record operations. Section 121 prescribes the particulars to be noted in the khatauni. Sub-section (c) of Section 121 mentions that the date of Khatedari purcha, and the transfers, if any, made by him, together with all the particulars of such transfers should be specified in it. Section 122 then prescribes how the attestation is to be made in the case of dispute and the decision should be taken by the Land Records Officer. Under Section 123, the precise question regarding the tenure of tenant can be adjudicated by Land Records Officer. Then, comes the important section, which is Section 125, which says that the settlement of disputes in respect of 'record of rights' should be decided by the Land Records Officer after enquiry on the basis of the possession of persons or a person who is entitled to get the possession and no order as to possession passed under this section shall debar any person from establishing his right to the property in any civil or revenue Court having jurisdiction.

17. Section 126 then mentions that the existing records are to be acted upon until fresh records are prepared and Section 127 authorises the Collector to make other record and decide disputes after the survey and record operations are closed. Chapter VII (D) then closes and Chapter VII (Z) commences from Boundary disputes and ends to Maintenance of map and field book (Section 131) and then comes Chapter VII (F) which mandates the Land Records Officer of maintaining annual Registers. Section 183 prescribes the procedure how a transfer of possession or succession is to be recorded and Reports of Patwari and Tehsildars or Land Recording Inspector are to be obtained. Section 136 then mentions that all the disputes regarding class or tenure of any tenant or regarding revenue pay-able or regarding entries in the annual register shall be decided in accordance with the provisions of Section 123 or Section 124 or Section 125, as the case may be.

18. An important question which has arisen and which has emerged for adjudication by this Court is, whether the Girdawari is a 'record of right'. A re'-sume' of the above sections, mentioned, and particularly, from Section 132 to Sections 144 and 120, would show that nowhere Khasra Girdawari has been mentioned either in the 'record of rights' or annual registers to be prepared. However, this Court, while considering a criminal revision in Surajmal v. State 1959 RRD 173: 1959 Raj LW 381, observed that in Mala v. Board of Revenue (D. B. Civil Writ Petition No. 185 of 1953 decided on 1st February, 1956) by reference to the revenue laws of the former Jaipur State, it was held that Khasra Girdawari was an annual register and the law lays down a prescription that the entries made therein were true.

19. This Court then observed as under:--

"8. The Rajasthan Land Revenue Act. 1956, (Act No. XV of 1956) has since come into force on 1st July, 1956, and its provisions may now be examined.

9. Section 140 says that all entries in the record of rights shall be presumed to be true until the contrary was proved.

10. Section 114 mentions the several documents which make up the record of rights, and mentioned may be made of-

'(b) Khatauni, i. e., a register of all persons cultivating or otherwise holding or occupying land in the area specifying the particulars required by Section 121 (d) and such other registers as may be prescribed.

11. Section 132 directs that the Land Records Officer shall maintain the record of rights and for that purpose shall annually or at such longer intervals as the Government may prescribe cause to be prepared a set or an amended set of the registers enumerated in Sections 114 and 120, and the registers so prepared shall be called the annual registers."

"12. Rule 355 (h) framed under Section 261 of the Land Revenue Act says that the Khasra is the foundation of the record of rights, and Rules 64 to 89 direct how it is to be prepared. The form prescribed and the information that is required to be entered therein shows that it is a four yearly register maintained under Section 132 read with Section 114 of the Act. The entries are thus to be presumed true until there is proof to the contrary."

20. The implications of the above judgment were considered by the Bench of four members of Revenue Board in Panne Singh v. Guman Singn, 1964 RRD 101 as reference was made by Division Bench. The terms of the reference were as follows : "Is Khasra Girdawari a record of rights and does an application lie for correction of khasra Girdawari entries before the Land Records Officer."

The Division Bench was of the view that it was not record of rights. The learned Members of the Revenue Board then considered Sections 132 and 114 of the Act and other relevant provisions. The members were of the view that Khasra Girdawari does not find any place in the Act to come within the definition of the 'record of rights' or 'annual registers'. The above decision in Surajmal's case (1959 Raj LW 381) (supra) was cited as an authority for pro-position that the Khasra Girdawari is a 'record of right'. The discussions regarding the implications of the above decision in Surajmal's case (supra) made in Panne Singh's case (supra) are as under : "As rightly pointed out by the Division Bench this case arose in a criminal revision where the question of the possession over the land in dispute was examined by the learned Judge of the High Court wherein he has pointed out that, Khasra Girdawari is the foundation of the record of rights as laid down in Rule 335, Sub-rule (b) of the Rajasthan Land Revenue (Land Records) Rules, 1957. There is nothing to warrant that the khasra Girdawari itself was held to be the record of rights by the learned Judge in the above judgment. There the entry in khasra girdawari wrongly construed as the record of right was considered as a correct entry, being a public document as presumption of truth attaches to such documents until it was disproved. Thus the decision in that Criminal Revision of the High Court is no authority in law to hold that khasra girdawari is a record of right. On the contrary, the Rajasthan Land Revenue Rules as well as the Act clearly lay down that khasra Girdawari is not a record of right".

21. The members then discussed the provisions regarding the preparation of the Girdawari and khatauni in para 4 of the judgment of Panne Singh case (1964 RED 101) (supra). The relevant observations made are thus :-- The Khasra Girdawari entries are made by the Patwaris on their tour and checked and rechecked by the Revenue Inspectors and the Tehsildars. All disputes regarding such entries are corrected by the Inspecting Officers on tour after a summary enquiry based on possession of the holding and the nature of such possession by a tenant or the sub-tenant after the khasra Girdawari register is completed and determined and a jama-bandi is prepared.

The entry at the time of Girdawari operations by Patwari is nothing but an entry made in discharge of his administrative functions and its correction at that stage must be sought in an administrative manner before the competent authorities and no application should be filed for correction of such entries. It is only after all this remedy has been exhausted and the entry has found place in the Jamabandi Khatauni then alone a regular application would lie for correction of such record of rights.

It is only after the Jamabandi Khatauni has been prepared and if any dispute still persists then an application for correction of the Record of Rights would lie and not before, because Jamabandi khatauni is the only Record of Rights and not Khasra Girdawari, (Para 4)

22. The members of the Board in Panne Singh's decision (1964 RRD 101) (supra) were further of the view that the Girdawari is only an administrative entry and, unless, on the basis of it, a khatauni entry is made, application for correction cannot be entertained.

23. I am of the view that, so far as the observations made by the members of the Revenue Board in Panne Singh's decision (supra) in respect of the judgment in Surajmal's case (1959 Raj LW 381) (supra) of being criminal provision or proceedings, is concerned, a decision of this Court, whether on criminal or civil side, is binding on all subordinate Courts, tribunals and, the Revenue Board is not justified to avoid implication of that judgment and refuse to follow it on the ground that the judgment has been given on the criminal side.

24. However, I find that there is nothing in this judgment for arriving at the finding that an entry in Khasra Girdawari is to be treated as 'record of rights' under the Revenue law. All that has been said in para 12 of Surajmal's decision (supra) is that the khasra becomes the foundation of the 'record of rights,' The very terminology used in this para 12 clearly goes to show that it is something different from 'record of rights'.

25. As already mentioned above, 'record of rights' has been defined in Section 114 of the Rajasthan Land Revenue Act and the khasra Girdawari nowhere finds place in it. In view of the above, the decision of Suraj Mal's case (1959 Kaj LW 381) (supra) cannot be taken as an authority for the proposition that, the Khasra Girdawari is one of the documents which can be termed or treated as 'record of rights' under the Revenue law of Rajasthan.

26. Another question which has been discussed in the decision, of Surajmal's case (supra) is regarding the value of entry of Khasra Girdawari. Here of course, since the learned Judge was dealing with a criminal revision and question was about the possession, the sole question to be considered was, whether in the face of an entry in khasra girdawari regarding particular person and without there being an evidence to the contrary, he should be given benefit of that entry or not. In this decision of Surajmal's case (supra) the position in respect of this fact was that the claimant claimed to be a 'khud kasht' and the field was shown as Khud Kasht and the crop shown in Girdawari was also in his favour. In para 15, it has been discussed that Alsi crop was sown by the complainants who were the employees of Shan-kerlal and, therefore, the accused Suraj-mal, who was convicted under Section 379, I. P. C. for taking away the crop of Alsi by getting it removed, had no right under the law and. therefore, he was rightly convicted.

27. The crucial question considered in this case was, that the complainant was Khud Kasht holder and, further, Khasra showed the entry of cultivation in his favour. It was in this context that the Girdawari entry was discussed and the objection of the accused that it was not proved by the production of certified copies of public documents by Patwari, was repelled on the ground that there is a presumption of genuineness under Section 35 of the Evidence Act and no formal proof was required.

28. I am, therefore, not inclined to hold that Surajmal's decision is an authority for the proposition that khasra girdawari is a part of 'record of rights' or, that it creates any legal right under the Revenue law of Rajasthan.

29. I am further of the view that even otherwise, on a close scrutiny of the relevant provisions of the Rajasthan Land Revenue Act. Rules framed thereunder and the instructions and notes contained in the manual, it is clear that the Girdawari is prepared only to furnish administrative data and though, it may be relevant for preparation of 'record of rights', it cannot in itself, become a part of 'record of rights' under the Revenue law and I hold, accordingly.

30. The next question, which now comes up for consideration is, whether the finding of the Revenue Board and the Revenue Appellate Authority, in the present cases, in respect of the petitioners being trespassers, warrants any interference by this Court under Article 226 or 227 of the Constitution.

31. It is pertinent to note here that in Khasra Girdawari (Annexure 4 in Writ Petition No. 627/73) the entries, which relate to crucial Samvat year 2010 to 2013, have scored the name of Pavangiri or Ganesh Giri in Col. 5 of it. The name of Municipal Board, Bhavani Mandi has been incorporated in Col. 6. True it is that in Col. 32 the names of Mathura and Nanga have been mentioned for the Samvat year 2012 and so also in Col. 40 but, this is a column for special particulars and any changes about the revenue rates, etc. the Rajasthan Tenancy Act came into force on 15th October, 1955, which is equivalent to Samvat year 2012. It further appears that even after Samvat year 2012 in the subsequent khasra girdawari produced by the defendant in Col. 6 the name is of the Municipal Board, Bhawani Mandi and the name of the defendants find place in Col. Nos. 16, 24, 32 and 40 in the Samvat years 2013, 2014, 2015 and 2016.

32. In Khasra Girdawari (Annexure 6) in Writ Petition No. 627/73) which contains the entries of Samvat years 2017-2018, 2019 & 2020. Col. No. 6 mentions the name of Municipal Board, Bhawani Mandi as Khatedar and the same continues as earlier. In the Samvat years 2021, 2022, 2023 and 2024, Col. No. 6 of khasra girdawari entries contains the name of the Municipal Board, Bhawani Mandi.

33. In Khasra Girdawari (Annexure 6) at Col. No. 16 after the name of Municipal Board, Bhawani Mandi, the names of Mathura Lal and Nanga have been mentioned. But, in Khasra Girdawari (Annexure 7 in writ petition No. 627/73) for the years commencing from Samvat year 2021 equivalent to year 1965 and ending up to Samvat year equivalent to the year 1967, the entries have been made in favour of the Municipal Board, Bhawani Mandi, in respect of khasra No. 410 where the word in Hindi, 'Bashrah' has been added to the word, Municipal Board.

34. The suit was filed on 5th October, 1962 and, therefore, the entries up to Samvat year 2019 are material.

35. I have given, in details, the re'sume' of the entries in order to ascertain and assess what was the relevant record during the relevant years, it is abvious that irrespective of the reasons, whatever they may be, the Muncipal Board, Bhawani Mandi, had been continuing to be entered in these entries and the resumption of the Mafidar or the Jagirdar was effected by the Act of Rajasthan Zamindari and Bisvedari Abolition Act, 1959.

36. The year 1959 is equivalent to Samvat year 2015 and, therefore, the Mafidari rights, if any of any persons was abolished and vested in the State.

37. It appears from the judgment of the Revenue Appellate Authority that the Secretary of Municipal Board, Bhawani Mandi, Roopnarain Patwari (PW 2) and Amarlal, the clerk of Municipal Board (PW 3) were examined and Jamabandi of Samvat years 2015 to 2019 (Ex. P. 1) were produced before the trial Court. Before this Court also in reply to the writ petition, it has been mentioned that these lands in dispute were ordered to be transferred in the Khatedari of the Municipal Board, Bhawani Mandi by the Tehsildar Pach-pahad vide an order (Annexure R. 4/1 and the certified copy of the 'Jamabandi' for the Samvat years 2012 to 2015 has been produced as Annerure R. 4/2. These documents (Annexures R. 4/1 and R. 4/2) clearly go to show that in col. No. 11 Municipal Board, Bhawani Mandi has been shown as Khatedar and the note mentions that by an order of Shri Rajen-dra Ijlas 24/11/45 this land was given to the Town improvement and then to Municipal Committee Bhawani Mandi vide order of 30th March, 1946. The endorsement of Tehsildar is very important and it is obvious that it is on account of this that the land was transferred to the Municipal Board. Again, in Jamabandi (Khewat Khatauni) for the Samvat years 2012 to 2015, it has been mentioned that on account of the order of Shri Rajendra Ijlas 24/11/45, this land was given to the Municipal Board, Bhawani Mandi.

38. It would thus be seen that, whereas these documents (Annexures R. 4/1 and R. 4/2) provide clinching evidence to show how the land in dispute was transferred and given to the Municipal Board by the order of Shri Rajendra Ijlas 24-11-1945 and, therefore, the entries were ultimately made in the name of the Municipal Board, Bhawani Mandi in the revenue records Jamabandi (Khewat khatauni) of Samvant years 2012 to 2015.

39. In the face of the above entries of the revenue records consisting of Khewat Khatauni-Jamabandi and containing the endorsement of the transfer to Municipal Board, Bhawani Mandi oi this land, it is obvious that irrespective of whatever value is to be attached to the Girdawari, the 'record of rights' consisting of Jamabandi (Khewat Khatauni) are in favour of the Municipal Board, Bhavani Mandi, the respondent No. 4. In these documents of 'record of rights', there is no mention of the names of the defendants-petitioners and therefore, the present one is a case, where the plaintiff-respondent No. 4 Municipal Board, Bhawani Mandi is the Khatedar of this land in dispute.

40. In view of the above, it is not necessary now to discuss any more, whether if two views are possible, then the view taken by the Board of Revenue should be confirmed and upheld, as argued by Shri Dalip Singh duly supported by the decision of the Division Bench of this Court in Jagan Singh v. Board of Revenue, 1961 Raj LW 42 nor it is necessary to further discuss whether the finding regarding the fact that the defendants were trespassers, is a pure finding of fact only.

41. I am convinced that the concurrent decision of Revenue Appellate Au-thority and Revenue Board holding that the defendants-petitioners were trespassers and the plaintiff-respondent No. 4, the Municipal Board, Bhawani Mandi, was the khatedar is correct and calls for no interference.

42. I must further make it clear that the trial Court was also not justified in declaring the defendants-petitioners as Khatedars under Section 19 of the Raj-asthan Tenancy Act. It has come on record and admitted by the defendants-petitioners that they never took any proceedings for declaration as Khatedars, when the entries in the Revenue record of rights were made in favour of the Municipal Board, Bhawani Mandi, at least in the Samvat year 2012 as is evident by the documents (Annexures R. 4/1 and R. 4/2 mentioned above. It was the duty of the defendants-petitioners to challenge it in all forums including the filing of a regular declaratory suit which was not done so far by them.

43. In view of the above, there is no doubt that the concurrent finding of the Board of Revenue and the Revenue Appellate Authority is justified on merits of the case and is based on the cogent reasons both, in facts and in law.

44. The result of the above discussion is that these three writ petitions supra fail and are dismissed with no order as to costs.