- (1.) CIRCUMSTANCES leading to this revision against the order of the Settlement Officer, Alwar, dated 30. 5. 61 are: - The opposite party, Mangal and his son Rajendra Singh, preferred an application to the Asstt. Settlement Officer, Alwar, that the disputed Khasra Nos. 1720, 1721, 1722 and 1723 situated in village Machadi Mewan have been continuing to be in their cultivatory possession ever since Smt. 2014 and still the Settlement Parcha had been given to the applicant Gangla. It was also alleged that a case was pending against the applicant about that land in the court of the Asstt. Collector, Rajgarh; that even from Khasra Girdawari Chausala the disputed land was established to belong to the opposite party. The prayer was that the Parcha Settlement should be changed in the name of the opposite party. The Asstt. Settlement Officer held an enquiry and ordered the correction to be made as applied for. The settlement Parcha was granted to Shri Mangal Singh and the Parcha prepared in the name of the applicants was ordered to be struck off. An appeal was preferred against this order to the Settlement Officer, Alwar, by the applicants, but with no success. Hence this revision.
(2.) A preliminary objection has been raised against the maintainability of this revision on the ground that the order of the Settlement Officer was appealable to the Settlement Commissioner. True, vide Sec. 76 (b) of the Rajasthan Land Revenue Act 1955 (hereinafter referred to as the Act),an appeal can be heard against the order passed in appeal by the Settlement Officer to the Settlement Commissioner. The question is, however, whether a revision cannot be heard without there having been made first an appeal, as provided above, under any circumstances whatsoever. The revising powers of the Board are laid down by Sec. 84 of the Act. They can be exercised even in cases connected with settlement in which no appeal lies to the Board if the officer by whom the case was decided appears to have exercised the jurisdiction not vested in him or to have failed to exercise the jurisdiction so vested or to have acted in the exercise thereof illegally or with material irregularity. I do not, however, intend to convey that in every case the parties are free to bye-pass the appellate authority and bring a revision directly. But still it is not quite an inflexible rule of law and the Board can examine a case brought to it, if it deems fit. This has been a practice followed throughout and, therefore, we proceed to examine the revision application as it is. Another preliminary objection has been raised on the ground that the original application had been filed by Mangal Singh and his son Rajendra Singh both, but that in this revision petition only Mangal Singh has been cited as an opposite party and Rajendra Singh had not been impleaded. The learned counsel for the applicants has explained it by saying that as the correction had been ordered only in favour of Mangal Singh and that Rajendra Singh was only the son of Mangal Singh, Rajendra Singh was not thought necessary to be impleaded at the time of the drafting of the revision petition, but that the applicants were prepared to implead him also now and he has submitted an application to that effect. There is no limitation prescribed for revision and, therefore, this application is allowed and Rajendra Singh ordered to be cited as an opposite party. I have heard the learned counsel for the parties at length. It was pointed out on behalf of the applicants that the settlement was brought in effect from Smt. 2013 ana mat the record was also prepared in the course of the record operations for the purposes of settlement in Smt) 2013 itself in which it was the applicants who were in cultivatory possession of the disputed land and the opposite party were not on their own saying (as would be evident from their application itself) in possession thereof in that year. On this basis it has been pointed out that in Smt. 2013 the applicants being in cultivatory possession of the disputed land, the Parcha Settlement had been rightly granted to them and any correction thereof thereafter had been done erroneously and contrary to the provisions of law in this behalf as provided by sec. 125 of the Act, which lays down that all disputes shall be decided on the basis of possession and possession alone. This was not denied pointedly on behalf of the opposite party. An opportunity was given to the parties to produce the copies of the record on the basis whereof it could he said that the record operations commenced in Smt. 2013 and the rights were recorded for the first time in that year towards the preparation of settlement papers. The applicants have failed to produce it and they have applied tor an adjournment on the ground of illness of their counsel. The opposite party have also not produced any such record. But from the very enquiry conducted by the learned Asstt. Settlement Officer it would be clear (as has been deposed on oath by Rajendra Singh himself as P. W. 1) that uptil Baisakh Budi 1, Smt. 2013 the disputed land was in the cultivatory possession of the applicants. The case made out by him therein is that on that date the applicants willingly surrendered the land in favour of the opposite party. He referred therein to Khasra Gasht from Smt. 2013 to 2016 and stated that in Smt. 2013 the Patwari had entered the Tajaja but that the Naib Tehsildar, Rajgarh, at the time of his inspection ordered the entry to be made in favour of the opposite party. This in itself makes it quite clear that uptil Smt. 2014 it was the applicants who were in cultivatory possession of disputed land and that in Smt. 2014 also there was a dispute about cultivatory possession which was not decided by any one but that the Naib Tehsildar at the time of his inspection ordered the recording of the name of the opposite party. The evidence of other witnesses produced by the opposite party also goes only to show that the opposite party were in possession of the disputed land and for the last 3 or 4 years. This statement was given by his witnesses on 25. 8. 60. This date is given below the statement of one of them Har Sahai who deposed that the opposite party were in possession for 4 years and that before that it were the applicants who cultivated it on Patta. There is no date below the statement of the other witness Bhorelal who deposes that the opposite party cultivated the land for the last 3 years. This statement is recorded below the statement of Har Sahai and, therefore, it can be taken to have been recorded either on 25. 8. 60 itself or thereafter. There are statements of the applicants also recorded on this very date and the order sheet also shows that no statements of the witnesses of the opposite party were ever recorded thereafter. It means the evidence of Bhorelal was also taken on 25. 8. 60 itself. On 25. 8. 60 the corresponding Smt. year would be Smt. 2017. This evidence will also therefore lead to the conclusion that the opposite party came to have possession over the disputed land only in Smt. 2014 as stated by Rajendra Singh himself. The evidence of the witnesses produced on behalf of the applicants also goes to show that uptil Smt. 2013 the applicants were in cultivatory possession of the disputed land and in Smt. 2014 the opposite party took the forcible possession thereof. The case of the opposite party was that the applicants made a surrender in their favour. This surrender has nowhere been proved. Vide Sec. 55 of the Rajasthan Tenancy Act 1955 which was in force in Smt. 2014 a legal surrender could have taken place only when the giving up of possession of the land would have accompanied with a writing attested by the Tehsildar having jurisdiction or by the Chairman of the Municipal Board. There is nothing on the record to show that there was such a surrender made in accordance with law. The ordering of the entry by the Naib Tehsildar in favour of the opposite party so much relied upon by them is also nothing but a repetition of the over-looking of the above referred clear provision of law laid down by Sec. 55 of the Rajasthan Tenancy Act. As the copy of the inspection note of the Naib Tehsildar on the record goes to show he has ordered the entry to be made in favour of the opposite party notwithstanding a protest made by the applicants and an allegation that the opposite party had forcibly taken possession of the land with a summary observation that whatever may be the case the cultivation had been done by the opposite party and so their names should be recorded. Obviously, the learned Naib Tehsildar completely over-looked the provisions of Rule 74 of the Rajasthan Land Revenue (Land Records) Rules 1957 which lays down that it can be only the name of a tenant liable to pay rent and holding land from the Government or from an estate holder or in the event of a mortgage the name of the mortgagee or his sub-mortgagee and the person cultivating from such a mortgagee or sub-mortgagee that can be entered in Khasra Girdawari. It is only when a land is in Khud-kasht of the estate holder that the word Khud-kasht can be, entered in the column meant for and if the land is cultivated by him Shikmi. Sijari, etc. that the name of such a cultivator can also be entered. Any person occupying a land without any authority cannot be allowed to be entered in the Khasra Girdawari. It is really regrettable that the learned Naib Tehsildar, Rajgarh, Shri Naval Kishore, ordered such an entry to be made. A perusal of the judgments of the learned Asstt. Settlement Officer and Settlement Officer will go to show that they too have very clearly overlooked the clear provisions of law referred to above, viz. , that a surrender can be merely only in accordance with the prescribed provisions of law and that it is only a tenant or a sub tenant as well as a legal cultivator in possession which can be treated to be a man in possession and who can be granted a Parcha Khatauni. The learned Assistant Settlement Officer has stated that he was not concerned as to how the opposite party came to have possession over the disputed land. It was a very strange attitude to be adopted on his part when he was required to correct an entry already made in the normal course of the preparation of the record of rights. The learned Settlement Officer has committed an error still more serious. He has been guided by the decision in the proceedings under sec. 145 Cr. P. C. which is not evidence for the purpose of deciding the disputes regarding entries in the settlement papers. He has also fallen into the same error as the Asstt. Settlement Officer to treat the possession of the opposite party to be an authorised one when the very source of the possession given out by the opposite party themselves had not been proved legally. Every man in possession cannot be entered into the record of rights. The possession should be lawful possession and that alone can be taken in consideration for deciding disputes under sec. 125 of the Act. As stated above an interference under sec. 84 of the Act can be made if it is found that the subordinate officer has exercised a jurisdiction not vested in him or has exercised it illegally or with material irregularity. A jurisdiction is said to have been exercised with material irregularity if it has been done contrary to the provisions of law prescribed in this behalf. It is said to have been exercised illegally if a positive rule of law is found to have been ignored. An excess of jurisdiction is also established when it is found that a jurisdiction has been assumed on a wrong assumption. All these elements are found to exist in this case as is evident from the discussion of the manner in which the learned officers of the settlement department below have acted in deciding this case. They have, as discussed so elaborately above acted on an assumption of surrender when there was not an iota of evidence to prove it, not to speak of any legal evidence or the fulfillment of the legal requirement as discussed above. They have believed in surrender on the solitary evidence of Rajendra Singh, opposite party. They have also mis-read the other evidence as discussed above. They have also mis-applied the positive provisions of law in deciding that anybody in possession can be entered in the records and can be treated as a man in possession for the grant of settlement Parcha. At least where there was a dispute about the very factum of surrender and nothing was being brought forward to prove it and the applicants had been representing very vehemently that the opposite party had taken a wrongful forcible possession of the disputed land, they should have refrained from ordering the correction of entries as they have done and from deciding to grant the settlement Parcha to the opposite party. This revision application, therefore, deserves to be accepted and the orders of the learned officers of the Settlement deserves to be set aside. But this can be done only by a D. B. and not by a Member sitting singly, as provided by Rule 9 (ii) of the Rajasthan Revenue Courts Manual Part I. This revision application be therefore, submitted before the Chairman to be ordered to be put up for hearing by a D. B. . ;