Mohammad Rafiq, J. - (1.) THIS writ petition has been filed by Mangla and four other challenging judgment dated 01.07.1987 passed by Assistant Collector, Jaipur, judgment dated 12.12.2000 passed by the Revenue Appellate Authority, Jaipur, and judgment dated 11.06.2001 passed by the Board of Revenue for Rajasthan, Ajmer, to the extent they declared the land bearing khasra Nos. 523 and 526 total measuring 10 bigha 6 biswa situated in village Bagrana, Tehsil and District Jaipur, as surplus.
(2.) BRIEFLY stated the facts of the case are that late Shri Mahadev, father of petitioners, along -with his brothers, was tenant of respondent No. 4 Jorawar Mal S/o. Shri Kistur Mal Patni, who was former Jagirdar. The Jagir was resumed in the year 1958 and father of petitioners and his brothers became khatedar of the lands of Khasra Nos. 523 and 526 measuring 30 bigha 14 biswa situated in village Bagrana, Tehsil and District Jaipur, by operation of law.
(3.) RESPONDENT No. 4 filed a suit for ejectment against father of petitioners and other tenants, which was dismissed by learned Assistant Collector, by judgment and decree dated 30.04.1969. In ceiling proceedings, certain excess lands were sought to be resumed. The respondent No. 4 surrendered 20 bigha of land of petitioners. Aggrieved thereby, petitioners filed a suit against the State Government and respondent No. 4 on 26.03.1977 for correction of entry in the record and declaration, in the court of Sub Divisional Officer, Jaipur, which was transferred to the court of Assistant Collector, Jaipur, for decision. Respondent No. 4 remained ex -parte. The suit was dismissed by the Assistant Collector, Jaipur, vide judgment dated 01.07.1987 only on the ground that petitioners did not file appeal against mutation order, whereby the land in question was mutated in favour of the State on the basis of surrender made by respondent No. 4. The petitioners preferred appeal there against, which was also dismissed by learned Revenue Appellate Authority vide judgment dated 12.12.2000. Aggrieved thereby, they preferred second appeal before the Board of Revenue. The second appeal was also dismissed by the learned Board of Revenue vide judgment dated 11.06.2001. Hence this writ petition. Shri R.K. Goyal, learned counsel for petitioners, has argued that the courts below have committed serious illegality in exercising their jurisdiction and not appreciating that the suit was for declaration and correction of entries. The respondent No. 4 had lost the right over the land in dispute including the land of khasra No. 523 and 526 on resumption of the jagir under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. He had no authority to surrender the same in ceiling proceedings. The State of Rajasthan also could not have accepted the same or entered the same as 'siwai chak' in the revenue record. The State Government did not acquire any right over the land in dispute, because the petitioners had already acquired the disputed land by provisions of law in Section 19 read with Section 15 of the Rajasthan Tenancy Act. This was because the petitioners were in contextual cultivatory possession of the land in dispute on the date when the Rajasthan Tenancy Act, 1955 came into force. The landlord had played a mischief by surrendering another land, whereas, according to second proviso of sub -section (2) of Section 30E of the Rajasthan Tenancy Act, 1955, he was under obligation first to surrender unencumbered lands. The learned counsel for petitioners, in support of this argument, has cited a judgment of a coordinate bench this court in Kastoor Chand v. State of Rajasthan - : 1985 RRD 185, wherein it was held that surplus land in possession of assessee (transferor) has to be surrendered first and balance shall be taken possession of from transferee. Reliance is also placed on judgment of this court in Banwarilal Nagpal v. State of Rajasthan - : 1982 RLW 663, which is also to the same effect.;