Decided on November 07,1984

Kamad And Ors Appellant
Board Of Revenue And Ors Respondents

Referred Judgements :-



- (1.)Brief facts leading to this writ petition are that non-petitioner No. 4, Mst. Soni, filed a suit for possession against the petitioners in respect of lands bearing Khasra Nos. 795/1, 793/2, and 796 and 797 measuring 26 Bighas 10 Biswas situate in village Gothiana Tehsil Kishangarh, District Ajmer. The suit was filed on the allegation that the disputed land was mortgaged with the petitioners by Peeru deceased husband of the plaintiff some ten years back. After expiry of 10 years, the mortgage automatically extinguished and the plaintiff was entitled to possession. In the alternative it was also pleaded that for redeeming the mortgage, the defendant-petitioners had stated that the land had been sold to them by Peeru on September 13, 1963. It was thus alleged that since the husband of the plaintiff was a member of Scheduled Caste, any sale which was made in favour of the petitioners, was violative of Section 42 of the Rajasthan Tenancy Act, 1955 here in after referred to as 'the Act') and on this account also the plaintiff was entitled to a decree for possession.
(2.)The defendant-petitioners in the written statement totally denied the fact of mortgage and further asserted that the land in question was in their cultivatory possession since long and Peeru also sold his khatedari rights on September 13, 1953 for a consideration of Rs. 360/-. It was also pleaded that the sale was made by Peeru prior to the amendment of Section 42 of the Act, which came into force with effect from May 1, 1964 and as such the sale was not violative of Section 42 of the Act and in the alternative they had also acquired khatedari rights under Section 19 of the Act. On the basis of the above pleadings, learned Assistant Collector, Kishangarh, framed several issues and after recording oral and documentary evidence held that Peeru was the khatedari tenant of the land in question. So far as the factum of mortgage is concerned, the same was not held proved. The sale being unregistered and in violation of Section 42 of the Act, had no validity and was a mere waste paper, It was further held that the suit was within limitation and in the result the suit of the plaintiff was decreed. The defendant-petitioners aggrieved against the judgment of the Assistant Collector filed an appeal. The Revenue Appellate Authority also by judgment dated March 15, 1977, dismissed the appeal and upheld the order of the Assistant Collector. The learned Revenue Appellate Authority while dealing with the question of alleged sale dated September (3, 1963, in favour of the petitioners discussed the oral and documentary evidence and held that even in fact such sale was not proved by the defendants. It was also found that the defendants failed to prove their possession prior to October 15, 1955. Even the receipts of rent filed by the defendants did not make a mention of the disputed land and in any case, the same related to the period after 1955. The Jamabandis filed by the plaintiff consisting of Samvat years 2021 to 2024 also mention the name of Peeru as Khatedar. As regards oral evidence of long possession produced by the defendant-petitioners the learned Revenue Appellate Authority observed that in case the defendant-petitioners claimed to be in possession prior to October 15, 1955, then they ought to have taken proceedings for recording khatedari in their favour but no such steps ware taken.
(3.)A second appeal filed by the defendant-petitioners in the Board of Revenue was also dismissed by order dated October 22, 1983. The Board of Revenue held that it was proved beyond any manner of doubt that Peeru was the Khatedar tenant of the disputed land and the defendants were claiming the land on the basis of an alleged sale-deed dated September 13. 1963, made by Peeru for a consideration of Rs. 36O/-. ft was held by the Board of Revenue that such sale being unregistered it conferred no khatedari rights in favour of the defendants and in any case such sale was also void as the same was in violation of Section 42 of the Act It was also held that even if the defendants may be found in possession of the land in question prior to coming into force of the Act, the defendants got no advantage as upto Sept. 13, 1963, even according to the defendants Peeru was Khatedar and as such their possession prior to September 13, 1963 would be considered with the consent of Peeru. It was also held by the Board of Revenue that the defendants were not entitled to any benefit of Section 53A of the Transfer of Property Act as even according to the defendants own showing they were not transferred possession on September 13, 1963 by the alleged sales-deed and the sale-deed being not executed even on sufficient stamps and being in violation of the provisions of law, gave no benefit to the defendants. The appeal as such filed by the defendants was dismissed.

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