Mohammad Rafiq, J. - (1.) THIS writ petition has been filed by the State of Rajasthan assailing judgment of Board of Revenue dated 04.10.2002, and that of Revenue Appellate Authority dated 01.01.2000.
(2.) FACTS of the case in brief are that one Ganpat Singh, father of non -petitioners No. 1 to 4 and husband of non -petitioner No. 5, filed a suit for declaration before the Court of Assistant Collector, Jaipur, on 18.02.1965, stating therein that he was allotted 60 bigha land on the ground of his being a soldier of Jaipur State. Therein, he prayed for declaration of khatedar of 52 bigha and 10 biswa of land bearing khasra No. 6/1, 7/1, 8/1 and 9/1, which was earlier recorded in his name and was wrongly shown as Siwai Chak. Further prayer was made for declaration that the petitioner was khatedar of the aforesaid land and that he should be declared khatedar of the land measuring 37 bigha, 19 biswa of Khasra No. 10 situated in village Ballupura. According to the respondent State, entire land was recorded as common property of the village, therefore the land was recorded as Siwai Chak and the land measuring 49 bigha 15 biswa of Khasra No. 9, which included 22 bigha 1 biswa land on which Ganpat Singh was earlier claiming his right, was recorded as pasture land. The suit was decreed in favour of original plaintiff Ganpat Singh by judgment dated 09.08.1978, whereby he was declared as tenant of the land measuring 37 bigha 19 biswa of Khasra No. 10 situated in village Ballupura. After death of Ganpat Singh, respondents No. 1 to 5 filed an application on 28.09.1994 under Section 88(1) of the Land Revenue Act before the Collector, Jaipur, inter alia, mentioning that 60 bigha land was allotted to Ganpat Singh, out of which, 37 bigha and 19 biswa was recorded in the name of Ganpat Singh and rest of the land of Khasra No. 8 measuring area 8 bigha and Khasra No. 9 measuring area 15 bigha was recorded as Siwai Chak. They claimed to be in possession of the said land. It was contended that the Government was taking action to take possession of the said land. The entry in the record should therefore be corrected and Siwai Chak entry be removed and this land be shown recorded in their khatedari. The Collector found that the land was recorded as Siwai Chak in Samvat 2015 and therefore no relief could be granted under Section 88(2) of the Land Revenue Act and the application was rejected. The order of the Collector was reversed by the Revenue Appellate Authority vide judgment dated 01.01.2000 and that has been upheld by the Board of Revenue vide judgment dated 04.10.2002. Shri Dharmendra Pareek, learned Additional Government Counsel, has argued that the Board of Revenue as also the Revenue Appellate Authority have committed an illegality and material irregularity while passing the impugned judgments. The application under Section 88(2) was not at all maintainable as Ganpat Singh, father of respondents No. 1 to 4 and husband of respondent No. 5, had already filed a suit only for 37 bigha and 19 biswa of land and rest of the land, which had also been recorded as Siwai Chak, and was also recorded as pasture land during the settlement of the Samvat Year 2015, the respondents could not subsequently apply for recording that land in their name in the name of correction. Ganpat Singh thus waived his right and subsequent application filed by the respondents under Section 88(2) of the Act as barred by the principles of res judicata. The land was recorded as Siwai Chak and pasture land in the Samvat year 2015, the corresponding year 1958, and the respondents filed a petition under Section 88(2) of the Act belatedly on 28.02.1994, which was time barred. Learned Additional Government Counsel submitted that according to Section 88(2) of the Act, all lands, wherever situated, which are not property of individuals or of bodies of persons legally capable of holding property are, except in so far as any rights of any such person or bodies may be established, the property of the State and it shall be lawful for the Collector subject to the order of the Commissioner to dispose of them in such manner as may be prescribed subject always to the rights of way and all other rights of the public or of individual legally subsisting. The Revenue Appellate Authority or the Board of Revenue could not therefore correct the aforesaid in the scope of Section 88(2) of the Act, which provides that where any property or any right in of over any property is claimed by or on behalf of the State or by any person as against the State, it shall be lawful for the Collector, after formal inquiry of which due notice has been given to pas an order deciding the claim of any citizen. Learned counsel for the petitioner argued that the respondents filed a regular civil suit for possession of this part of the land.
(3.) SHRI R.K. Goyal, learned counsel for the respondents, opposed and writ petition and submitted that the land in dispute of Khasra Nos. 6/1, 7/1, 8/1 and 9/1, prior to its being recorded as Siwai Chak or pasture land in settlement of Samvat 2015 was recorded in the khatedari of their father/husband/predecessor -in -title Ganpat Singh Rajput. Learned counsel has produced for perusal of the court the record of Jamabandi of Samvat 2005, 2006, 2007 and 2008 in which land of Khasra No. 7, 8, 9 and 10 was recorded in the name of Ganpat Singh, in column of khatedar. Learned counsel for the respondent also cited the khasra girdawari of the corresponding period showing the entry of Ganpat Singh as khatedar. He argued that Ganpat Singh was allotted total 60 bigha of land in his capacity as ex -army personnel. Therefore, when for the first time the respondent came to know about illegal entry of the land as Siwai Chak, they approached the District Collector under Section88(2) of the Act whereunder the Collector was required to verify from the revenue records prior to settlement of Samvat 2015 (corresponding to the year 1958) and if a discovery of such mistake was required to be corrected the same. Since the respondents throughout remained in possession of the land, filing of the application before the Collector on 28.09.1994 under Section 88(1) of the Land Revenue Act cannot be said to be belated because the respondents approached the District Collector soon after they came to learn about the aforesaid wrong.;