- (1.) THE petitioner purchased the agricultural land bearing Khasra No. 2 Min. measuring 26 bighas 9 biswas situate in village Hathnapur from Chittar and Kalu sons of Chhagna Meena resident of Hathnapur vide registered sale deed dated March 24, 1969 for valuable consideration of Rs. 8,000/ -. This fact has been mentioned by the petitioner in para 2 of the writ petition. He has further submitted that the land was purchased on Chait Badi 4, Samvat 2010 from Chhagna, the father of Kalu and Chittar by way of sale for a sum of Rs. 4,000/ -. THE petitioner has produced Annexure-2 the document which is on a plain paper and there is a reference that the sale was made for the sum of Rs. 4,000 -. ft has also been shown that it bears the thumb impression of Chhagna. THE sale-deed dated March 24, 1969 was produced by the learned counsel for the petitioner during the course of arguments In the sale deed dated March 24, 1969, there is no reference of the previous sale alleged to have taken place on Chait Badi 4, Samvat 2010. A bare perusal of the document Annexure-2 and the sale deed dt March 24, 1969 shown that vide Annexure-2 it is alleged that Chhagna has sold the land in the sum of Rs. 4,000/- but vide the registered sale deed dated March 24, 1969, it is alleged that Chittar and Kalu sons of Chhagna have sold the land for a valuable consideration of Rs. 8,000/ -. Thus, there is inconsistency in the amount as well as about the persons who sold the land. It is also very relevant fact that there is no reference in the sale deed dated March 24, 1969 about the alleged sale effected on Chait Badi 4, Samvat 2010.
(2.) I have heard learned counsel for the petitioner and have carefully perused the writ petition, Annexures thereof and the sale deed dated March 24, 1969. Learned counsel for the petitioner has challenged the order (Annexure-1) dated June 28, 1976 of the Assistant Collector, Bundi and the Judgment (Annexure-3) dated January 25, 1983 of the Board of Revenue. His main contention is that the authorities have not applied the law in a proper way. It is an admitted position that the sellers in Annexure-2 and the sale deed dated March 24, 19 (59 are the members of the Scheduled Tribes. The material portion of s. 42 of the Rajasthan Tenancy Act, 1955 (for short 'the Act') is as follows: "42. General restrictions on sale, gift and bequest: The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void, if (a ). . . . . . . . . . . . . . . . . . . . . (b) Such sale, gift or bequest is by a member or Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of the Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe. " It is a settled law that if the sale is effected by a member of the Scheduled Tribe or Scheduled Caste in favour of a person who does not belong to that class, the sale shall be void. I do not find any infirmity in the judgments of the courts below. However, it will be useful here to discuss the relevant provisions of law. S. 175 of the Act provides for ejectment for illegal transfer or subletting. This section provides a remedy to the landholder including the State in case of land held directly from the State Government in case of transfer or sub-letting which is against the any provisions of this Act. In order to make this section applicable, the following conditions must be satisfied: (i) the transfer or sub-letting must be otherwise than in accordance with the provisions of this Act; (ii) the tenant must have transferred or sub-let the whole or a portion of his holding; (iii) the transfere or sub-tenant must have entered upon or be in possession of the holding in pursuance of such transfer or sub-lease. The restriction on sale, gift and bequest are given in s. 42 of the Act. The sale in violation of s. 42 of the Act by a member of the scheduled caste or scheduled tribe to the persons who are not members of the scheduled caste or scheduled tribes is void from its very inception and no title or interest will tranpass to the vendee. It is obligatory duty of the State Government to resume the land so transferred in violation of the provisions of s. 42 (b) of the Act. Learned counsel for the petitioner has invited my attention to Annexure-2 and has tried to show that the transfer has taken place in the Samvat year 2010. In fact, the correctness of Annexure-2 is doubtful for the reason that in the transfer which has been effected on March 24, 1969 by the sons of deceased Chhagna, there is no reference of Annexure-2. In addition to that, in Annexure-2, the sale price has been shown as Rs. 4,000/- whereas in the registered sale deed dated March 24, 1969, the sale price has been shown as Rs. 8,000/ -. If Chhagna has sold the land in Smt. 2010 then what was the necessity of getting the sale-deed registered by the legal heirs of Chhagna in the year 1969. Thus, I find that Annexure-2 and the sale-deed dated March 24, 1969 are not genuine documents and the authorities were justified in rejecting the submissions made by the learned counsel for the petitioner. Learned counsel for the petitioner has invited my attention to the provisions of s. 53a of the Transfer of Property Act, 1882 (hereinafter referred to as the 't. P. Act' ). The doctrine of equity of part performance as laid down in S. 53a of the T. P. Act is applicable only when there is a deed in writing and if any deed is not written, any other defence based on equitable consideration cannot succeed. A relinquishment of a right in property amounts to a transfer. The provisions of s. 53a of the T. P. Act cannot override the provisions of s. 42 (b) of the Act. Any transsfer made in violation of the provisions of s 42 (b) of the Act is ab-initio void and nonest. Thus, it does not create any right in transferee and the provisions of s. 53a of the T. P. Act will not be applicable at all. S. 54 of the T. P. Act defines "sale" as under: "54. "sale "defined-"sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. " Such transfer in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be either by a registered instrument or by delivery of the property. A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. The sale as it does not, of itself, create any interest in or charge on such property. Assuming for the time being that Annexure-2 (the sale deed) was effected in favour of the petitioner, even then it cannot be said to be a sale as defined in s. 54 of the T. P. Act. S. 54 of the T. P. Act requires that the transfer of ownership by way of sale in the case of tangible immovable property of the value of one hundred and upwards can be made only by a registered instrument. S. 54 does not admit of a sale being effected in any other manner. Annexure-2 is on a plain paper. It is neither stamped nor registered, it is not admissible in evidence to prove the sale and under Annexure-2 the title cannot be passed at all.
(3.) LEARNED counsel for the petitioner submits that the transaction may be considered as the delivery of the property has been effected. LEARNED counsel further submits that if there is an oral transaction accompany with the delivery of the property, s 53 A will come into operation. The transaction of oral sale, requiring compulsory registration under s. 54 is not saved by the doctrine of part performance. Further more, in a case like this where the provisions of s 42 (b) of the Act admittedly applies, there cannot be any transfer of the interest of a person belonging to scheduled caste or scheduled tribes in favour of the persons of the other communities. For this reason also, the transfer is nonest and the question of applicability of s. 53a of the T. P. Act does not apply. The law of limitation has to be considered in the light of the legislation which has been enacted for the benefit of downtrodden persons of the scheduled casts or scheduled tribes. The State Govt. is the land holder in so far as the agricultural land is concerned and the persons holding the land is tenant. The question of adverse possession will arise against the State Government because the adverse possession is always considered against the landholders. The owner of the property is State Government and the transferor is merely a tenant and the question of limitation has to be considered in the light of the facts and circumstances of the case. It is expected from the State Government that the provisions of s. 42 (b) are complied with and whereever it finds that the land belonging to the persons of the scheduled caste or scheduled tribes has been sold in violation of s. 42 (b) of the Act then the land should be resumed and thereafter should be re-allotted to the downtrodden persons belonging to the scheduled caste or scheduled tribes and the persons who have sold the land for one reason or the other should also be considered for re-allotment. With these observations, the writ petition is dismissed summarily. . ;