- (1.) THIS is second appeal against the concurrent judgments and decrees of Revenue Appellate Authority Kota, dated 30. 3. 62 and the Assistant Collector Gangapur dated 4. 3. 1961, whereby the respondent's suit for declaration of Khatedari right and possession was decreed, The facts briefly are that the respondent Sheonarain a member of a scheduled tribe purported to transfer the suit land to the appellant by a sale deed registered on 29. 9. 1958, and received Rs. 300/- in part payment of the transaction. The appellant who is not a member of a scheduled tribe or a scheduled caste was put in possession and a mutation was effected in his favour. Subsequently the respondent brought a suit for a declaration that he was the Khatedar tenant and prayed that he be put in possession. He also sought a permanent injunction against the appellant. The plea taken by the respondent was that the sale of his Khatedari rights to the appellant was illegal and void in view of the provisions of sec. 42 of the Rajasthan Tenancy Act, 1955. THIS plea was accepted by the lower courts and the suit was decreed.
(2.) THE learned counsel for the appellant has first sought to attack the decisions of the lower courts on the ground that the provisions of sec. 42 which prohibit sale of Khatedari interests by a member of a scheduled caste or scheduled tribe to any person who is not a member of a scheduled caste or a' scheduled tribe, is discriminatory and ultra vires of the Indian Constitution. However, we find this contention to be without any force. In the first place Art. 46 of the Constitution enjoins upon the State to promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the scheduled castes and scheduled tribes, and to protect them from social injustice and all forms of exploitation. Secondly, this Board is not the proper forum where the vires of an Act of the State Legislature can be questioned. In Rajasthan the State has proprietory right in all agricultural lands, and all other persons hold as tenants under the State. As a matter of public policy certain restrictions on the right of transfer of tenancy interests have been placed under the Rajasthan Tenancy Act. These restrictions have been specified in sec. 42 of the Tenancy Act which is reproduced below : - "42. Sale or gift - Except with the general or special permission of the State Government no Khatedar tenant shall have the right to transfer by sale or gift his interest in the whole or a part of his holding to any person who at the date of such transfer is already in possession of land which together with the land so transferred will exceed the ceiling area applicable to him. Provided that no Khatedar tenant being a member of a scheduled caste or a scheduled tribe shall so transfer his interest in the whole or a part of his holding to any person who is not a member of a scheduled caste or a scheduled tribe. " Provided further that nothing in this section shall be applicable to persons enjoying Khatedari rights since before the commencement of this Act in the project area referred to in the proviso to sub-sec. (1) of sec. 15 or in the Rajasthan Canal area mentioned is see. 15-A and any transfer by sale or gift made by any such person after the commencement of the Rajasthan Tenancy (Amendment) Ordinance, 1960 shall be null and void. " The first proviso categorically forbids a transfer of tenancy rights by a Khatedar tenant belonging to a member of a scheduled caste or a scheduled tribe to a person who does not belong to a scheduled caste or a scheduled tribe. In view of this provision, the transfer of his Khatedari rights by the respondent to the appellant has no legal validity. Sec. 41 of the Tenancy Act clearly states that the interest of a Khatedari tenant shall be transferable only if it conforms to the conditions specified in secs. 42 and 43. Sec. 43 is not relevant to the present case, and therefore we need not discuss it here. Under sec. 63 of the Tenancy Act the interest of a tenant in his holding is extinguished only in the circumstances set out in this provision. Cl. (vii) of this provision says that the interest of a tenant in his holding shall be extinguished when he sells or makes a gift thereof in accordance with the provisions of this Act. Thus by reading secs. 41, 42 and 63 of the Tenancy Act the position that emerges is that the transfer of the suit land by the respondent to the appellant is illegal and void, and the Khatedari interests of the respondent in the suit land remains intact. The learned counsel for the appellant has sought to argue that the respondent has lost his right to sue for possession because he has transferred his khatedari interests in violation of the provisions of the Tenancy Act. He has drawn our attention to sec. 175 (1) of the Tenancy Act which runs as follows : - "175. Ejectment for illegal transfer or sub-letting - (1) If a tenant transfers or sublets the whole or any part of his holding otherwise than in accordance with the provisions of this Act and the transferee or sub lessee has entered upon or is in possession of such holding or such part in pursuance of such transfer or sub lease, both the tenant and any person who may have thus obtained or may thus be in possession of the whole or any part of the holding shall, on the application of the landholder be liable to ejectment from the area so transferred or sublet. " It is true that the respondent is liable to ejectment on the application of the land-holder which in this case is the State. However, this argument cannot help the appellant because no move has been made by the State to eject him and until that is done, his khatedari interest is in tact. Cl. (v) of sec. 63 says that the interest of a tenant in his holding shall be extinguished when he has been ejected therefrom in accordance with the provisions of this Act. If in this case the state had ejected the respondent from the suit land by invoking the provisions of sec. 175 (1) of the Tenancy Act his interest in the holding would have been extinguished but at this stage of the case no ejectment of the respondent has been sought or given effect to on the initiative of the State. Therefore, it must be held that the respondent retains his tenancy right in the suit land, the transfer made by him in favour of the appellant being illegal and void. We are fortified in taking the above view by the rulings cited on both sides in this case. The first is RLW, 1959 p. 487. The facts of the case before their lordships of the Rajasthan High Court were that the plaintiff had transferred certain land to the defendant in Violation of sec. 20 of the Bundi State Tenancy Act which required that a Khatedari (tenant would not transfer his holding without the previous sanction of the Revenue Commissioner, which in that case was not obtained. The plaintiff questioned the legality of the transfer made by him and his contention was upheld by their lordships who held that the transaction of sale by the plaintiff was void from its inception. Their lordships further held that the plaintiff would be deemed to be not in pari delicto and would be entitled to cover possession over the land which was transferred under an illegal contract. Their lordships directed that the plaintiff should reimburse to the defendant the consideration he had received for the sale transactions. In coming to this decision their lordships relied on the second case which has been cited before us viz. , AIR. 1938, 336 (Asaram vs. Ludheshwar ). In view of these authoritative pronouncements we are of the view that the sale of his Khatedari interests by the respondent to the appellant was void and cannot be given effect to in conformity with the public policy embodied in sec. 42 of the Rajasthan Tenancy Act. However it would be just and equitable to call upon the respondent to refund to the appellant the amount of Rs. 300/- which he has received as part payment for the sale of the suit land. This second appeal is therefore accepted only to this extent that the decree of the trial court as confirmed by the court of first appeal shall be modified so as to include the condition that the decree will be executable only if the respondent pays to the appellant a sum of Rs. 300/ -. . ;