- (1.) ALL these 7 writ petitions involve common question of law, therefore, they are disposed of by this common order.
(2.) FOR the convenient disposal of these writ petitions, the facts given in the case of Savda vs. State of Rajasthan & Ors. (D. B. Civil Writ Petition No. 1440/1986) are taken into consideration. The petitioner is an agriculturist by profession and is a resident of village Mohiwada in Tehsil Ahore of District Jalore in the State of Rajasthan. The village Mohiwada was a Jagir village prior to Samvat year 2017 corresponding to 1960 A. D. Mohiwada village Jagir was resumed and thereafter, the agricultural lands of this village were managed by the revenue department of the State. The petitioner was in cultivatory possession of the agricultural land bearing Khasra No. 272/50, measuring 9 bighas 5 biswas of the said village since long before 15. 10. 1955. since it was a Jagir land, therefore, the petitioner was paying rent to the Jagirdar. After resumption of the Jagir, the petitioner was recorded in the State Girdawaries but his name was not recorded in the Jamabandies. The petitioner, therefore, approached the revenue authorities for recording his name as a Khatedar of the aforesaid lands in the revenue records because he acquired Khatedari rights over the aforesaid lands by virtue of Section 15 of the Rajasthan Tenancy Act, 1955 (referred to hereinafter as 'the Act of 1955' ). The Naib-Tehsildar recommended the petitioner's case to the higher authorities for recording the petitioner's name in the Jamabandies. But the said recommendation was not accepted by the higher authorities. Proceedings were initiated against the petitioner under Section 91 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as 'the Act of 1956') and an order was also passed by the Tehsildar declaring the petitioner as trespasser. Therefore, the petitioner filed a suit for declaring him as Khatedar tenant of the aforesaid lands in the Court of Sub-Divisional Officer, Jalore. A reply was filed by the respondents and the issues were framed. It is submitted that the petitioner summoned the Patwari and the Office Kanungo with the records for the period prior to 15. 10. 1955 because on this day the Rajasthan Tenancy Act, 1955 came into force. But such record was not produced on the ground that no such record was available either with the Patwari or the Office Kanungo. Thereafter, a decree was passed by the Sub-Divisional Officer in favour of the petitioner. A number of other persons also claimed similar tenancy rights in this village. No appeal was filed by the State against this order of the Sub-Divisional Officer and after two years of the passing of this decree, the Collector, Jalore made a reference to the Board of Revenue for setting aside the decree passed in favour of the tenants of the village Mohiwada by the Sub-Divisional Officer. The Board of Revenue after notice to the decree-holders set aside the decree passed in favour of the petitioner and other similarly situated persons vide its judgment, a copy whereof has been placed on the record as Ex. 2 in relation to the petitioner's decree. It is this judgment of the Board of Revenue which has been challenged by the petitioner by filing the present writ petition. The main submission of the learned counsel for the petitioners is that the Board of Revenue in the reference cannot set aside the decree passed by the Sub-Divisional Officer as no appeal was preferred by the State. Therefore, it operates as res judicata. It is also submitted that the Board of Revenue also cannot override this decree in its superintending power conferred by Section 221 of the Act of 1955 as well as Section 83 of the Act of 1956. Learned counsel submitted that since the Code of Civil Procedure is applicable to these proceedings, therefore, Section 11, which contained the principle of res judicata is applicable to these proceedings. The Rajasthan Tenancy Act, 1955 was enacted with the assent of the President and Section 232 was amended by inserting the word 'decree' by the Rajasthan Amendment Act No. 14 of 1981, which was published in the Rajasthan Gazette Extraordinary Part 4 (ka) dated 5. 10. 1981 and for this, no assent of the President was taken. Therefore, the insertion of the word 'decree' is against the provisions of Section 11 of the Code of Civil Procedure and, therefore, this insertion is bad and the order passed by the Board of Revenue deserves to be quashed. Learned counsel has also submitted that the Board of Revenue in exercise of its revisional jurisdiction cannot examine the questions of facts and, therefore, the order passed by the Board of Revenue is bad on merits also and in the alternative it is submitted that the case may be remanded back to the trial court for deciding the issue afresh. As against this the respondent State has contested the position and submitted that no assent of the President is required for amending Section 232 of the Act of 1955 as the tenancy rights are covered by Entry 18 of List II of the Seventh Schedule of the Constitution. Therefore, the State is competent to amend the Act of 1955 and it is not required to referred it for the assent of the President. Learned counsel for the respondents further submitted that by virtue of Section 208 of the Act of 1955 certain provisions of the Code of Civil Procedure have been made applicable and certain provisions of the Code of Civil Procedure have not specifically been made applicable to these proceedings. It is submitted that Section 11 of the Code of Civil Procedure has not been made specifically applicable to these proceedings. Learned counsel submitted that the applicability of Order 46 of the Code of Civil Procedure i. e. provision regarding reference has specifically been prohibited. Therefore, Section 232 of the Act of 1955 which deals with the reference is not prohibited and the Board of Revenue can set aside a decree in exercise of the power under reference. In order to appreciate the controversy raised in these writ petitions, we shall make a reference to the certain provisions of law first. Section 232 of the Act of 1955 reads as under: - "232. Power to call for record and refer to the Board The Collector may call for and examine the record of any case or proceedings decided by or pending before any revenue court subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order or decree passed and as to the regularity of the proceeding, and, if he is of opinion that the order or decree passed or the proceeding taken by such court should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for the orders of the Board and the Board shall, thereupon, pass such orders as it thinks fit: Provided that the power conferred by this section shall not be exercised in respect of suits or proceedings falling within the purview of section 239. "
(3.) SECTION 208 of the Act of 1955 reads as under:- "208. Application of Civil Procedure Code: The provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), except:- (a) provisions inconsistent with anything in this Act, so far as the inconsistency extends, (b) provisions applicable only to special suits or proceedings outside the scope of this Act, and (c) provisions contained in List I of the Fourth Schedule, shall apply to all suits and proceedings under this Act, subject to the modifications contained in List II of the Fourth Schedule. " According to Section 208 of the Act of 1955 certain provisions of the Civil Procedure Code have been specifically made applicable and certain provisions of the Civil Procedure Code have been specifically prohibited as given in the Lists I and II of the Fourth Schedule attached to the Act. List I reads as under: - "list I. Sections and Orders of the Code of Civil Procedure, 1908, which do not apply to suits or proceedings under this Act. Section 9, Section 24, Section 55 to 59 inclusive, Section 68 to 72 inclusive, Section 88, Sections 113, 114, and 115, Order XXI rules 37,38,39 and 40, Order XXII, rule 8, Order XXXIII, (Pauper suits), Order XXXV (Interpleader suits), Order XXXVI (Special case), Order XLIV (Pauper Appeals), Order XLVI (Reference ). " List II also contains certain sections of the Civil Procedure Code, which have been made applicable subject to modification as mentioned therein. ;