Sangeet Lodha, J. - (1.) THIS writ petition is directed against the order dated 12.10.98 of the Board of Revenue Rajasthan, Ajmer whereby a second appeal preferred by the respondents No. 4 and 5 herein under Section 224 of the Rajasthan Tenancy Act, 1955 ("the Act") against the judgment and decree dated 18.10.95 passed by the Revenue Appellate Authority ("RAA"), Hanumangarh affirming the judgment and decree dated 13.3.91 of Sub -Divisional Officer ("SDO"), Nohar dismissing the suit preferred by the respondents -plaintiffs, has been allowed and accordingly the respondents -plaintiffs have been declared Khatedar of the suit land and the petitioners -defendants are directed to be ejected.
(2.) THE relevant facts are that the respondents -plaintiffs preferred a suit under Section 88 r/w Section 183 of the Act against the petitioners -defendants with the averments that the land admeasuring 50 bighas and 19 biswas comprising old Khasra No. 260, corresponding new Khasra No. 605 measuring 34 bighas of Village Bad Virana was Khatedari land of their father Kanaram as per Jamabandi of the Samvat year 2012 to 2015. After the death of Khatedar Kanaram in Samvat 2015, the land was being looked after by their mother Kheti. Both their father and mother had been getting the land cultivated through Khumanaram, father of the petitioners herein. It was averred that their mother Kheti expired 10 years prior to the filing of the suit on 4.9.98. it was alleged that the land has not been vacated by the petitioners and therefore, they had become trespasser. Accordingly, it was prayed by the respondents -plaintiffs that they may be declared Khatedars of the suit land and the petitioners -defendants may be ejected. That apart, it was prayed that the names of the petitioners -defendants appearing in the record of rights as Khatedars be cancelled and the land may be recorded in their name in the revenue record. The suit was dismissed by the SDO, Nohar vide judgment and decree dated 13.3.91 holding that the land was never in cultivatory possession of the plaintiffs' mother and on the basis of the documents produced, her right over the land in question is not proved. Aggrieved thereby, the respondents -plaintiffs preferred an appeal before the RAA, Hanumangarh. The RAA declined to interfere with the judgment and decree passed by the SDO and accordingly, the appeal was dismissed vide judgment and decree dated 18.10.95. Aggrieved thereby, the respondents -plaintiffs preferred a second appeal before the Board of Revenue Rajasthan, Ajmer which stands allowed by the impugned judgment dated 12.10.98 and the suit preferred by the respondents -plaintiffs has been decreed as prayed for. Hence this writ petition.
(3.) LEARNED counsel for the petitioners submitted that the Board of Revenue has seriously erred in interfering with the concurrent findings arrived at by the Courts below after due appreciation of the evidence on record. Learned counsel submitted that from the documentary evidence produced by both the parties, it was established beyond doubt that the land in question was in physical and cultivatory possession of the petitioners and their father Khumanaram. Learned counsel submitted that in Samvat 2000, the land was in cultivatory and physical possession of the petitioners' father and he was recorded as Gair Khatedar of the land in the revenue record. Learned counsel submitted that for last 60 years, the land remained in possession of the petitioners and their father and they paid the rent, and therefore, for all intent and purposes, they have to be treated as Khatedar tenant of the land by operation of law. In this regard, learned counsel has relied upon a decision of this Court in the matter of "Balvir Singh v. Board of Revenue", : 1983 WLN (UC) 476 and a decision in "Puransingh and ors. v. State of Rajasthan and Another",, 1966 (16) ILR Rajasthan, 1105. Learned counsel submitted that if the possession of the land is retained after expiry of the lease or sublease, a tenant holding over or a Gair Khatedar becomes Khatedar tenant and the suit for ejection against him must fail. Learned counsel submitted that admittedly Smt. Kheti widow of Kanaram executed a deed in favour of petitioners' father Khumanaram in Samvat Year 2016 and the suit was filed in the year 1989 i.e. after a lapse of more than 35 years and therefore, the same was barred by limitation. Learned counsel submitted that the land in question was in possession of the petitioners and their father for last more than 50 years, but no attempt was made by the father or mother of the respondents No. 4 and 5 to get the possession back and therefore, the protection under Section 46 of the Act was not available. Accordingly, learned counsel submitted that the impugned judgment passed by the Board of Revenue without appreciating the law applicable in correct perspective is not sustainable in the eyes of law.;