Mohammad Rafiq, J. - (1.) This writ petition has been filed by six writ petitions seeking to challenge judgment dated 10.09.1999 passed by the Board of Revenue for Rajasthan and judgment dated 17.09.1996 passed by the District Collector, Bharatpur. It is also prayed that application submitted by Tehsildar, Kumher, for making reference to the Board of Revenue, be dismissed and it be declared that proceedings initiated on that application are null and void and the same are barred by principle of constructive res -judicata in view of earlier judgment of the Assistant Collector -II, Bharatpur, dated 12.05.1978.
(2.) The District Collector, vide judgment dated 17.09.1996, made a reference to the Board of Revenue under Sec. 82 of the Rajasthan Land Revenue Act, 1956, at the instance of the Tehsildar, Kumher, District Bharatpur, which has been accepted by the Board of Revenue vide judgment dated 10.09.1999. The Tehsildar, Kumher, filed an application before the District Collector on 07.10.1994, inter -alia, with pleadings that according to Jamabandi of Samvat 1986 the lands of account No. 180 and 191 of 16 khasras measuring 19 bigha situated in village Gangarsoli, Tehsil Kumher, District Bharatpur, have been recorded in the name of 'Chhatri Khanderao Holkar', in which Bhondudas (since deceased and now represented by respondents No. 6, 7 and 8), Devidas (since deceased and now represented by respondent No. 9) and Gopaldas, were entered as 'muafidars'. Respondents No. 6 and 7 are grandson and granddaughter of Bhondudas, Respondent No. 8 Raman is son of Bhondudas and respondent No. 9 Prakashdas is son of Devidas. The said 'muafidars' of Chhatri Khanderao Holkar had irregularly transferred the said land in favour of one Hariram (since deceased and now represented by petitioners No. 1 to 5). Vide mutation No. 64, Baini and Raman (sons of Bhondudas) were recorded as 'muafidar' of the aforesaid 'muafi' land. Thereafter, Baini, Raman, Gopaldas and Hariram, vide mutation No. 223, 225 and 233, by way of irregularity, got themselves recorded as khatedar of the said land. Gopaldas further committed illegally and transferred his share in the aforesaid land in favour of Ghamandi S/o. Gopi (petitioner No. 6 herein). The settlement department gave new khasra numbers to the land in question and Baini, Raman and Hariram were recorded as khatedars in account No. 153 and Ghamandi was recorded as khatedar in account No. 157. The allotment of new account numbers was totally illegal. It was stated that they may misuse the land in question, therefore, they should be restrained from transferring or alienating the said land, as such transfer of the land in question was in breach of Sec. 46 of the Rajasthan Tenancy Act, 1955 and the same was liable to be annulled by recourse of Sec. 175 of the Rajasthan Tenancy Act, 1955. The land in question being the land of 'muafi' in nature, a reference should be made under Sec. 232 of the Rajasthan Tenancy Act, 1955, read with Sec. 82 of the Rajasthan Land Revenue Act, 1956, for cancellation of entry with regard to the land in question, in the revenue record. The District Collector, vide judgment dated 17.09.1996, accepted the application of the Tehsildar, and referred the matter to the Board of Revenue for Rajasthan. The Board of Revenue, vide judgment dated 10.09.1999, accepted the reference. Hence this writ petition.
(3.) Shri Vaibhav Pareek, brief -holder of Shri Sanjay Mehrishi, learned counsel for petitioners, argued that the Board of Revenue has erred in cancelling Mutations No. 223, 225 and 233 of village Gangarsoli, Tehsil Kumher, District Bharatpur and further ordering to enter the lands in dispute in the name of 'Chhatri Khanderao Holkar'. The Board of Revenue has misconstrued and misinterpreted the entries of the Jamabandi of the lands in dispute for Samvat 1986, 1992 and Samvat 2012 to 2070. The Board of Revenue has committed a grave illegality in holding that the disputed land was an ancient historical monument and thus the property of Archives Department. The Board of Revenue has misread and misconstrued the Notification of the State Government dated 27.04.1981. It has erred in holding that the petitioners and their predecessors -in -title were not entitled to claim khatedari rights in the disputed land and that they secured khatedari rights by mutation in collusion with the revenue officers. The Board of Revenue has failed to appreciate that the rights of the parties were adjudged by the Assistant Collector -II, Bharatpur, in the suit for division of holdings, by judgment dated 12.05.1978. It has no jurisdiction to cancel the khatedari rights of the petitioners and their predecessors -in -title in summary proceedings under Sec. 82 of the Rajasthan Land Revenue Act, 1956. It has completely ignored the fact that according to the Jamabandi of Samvat 2005, 'Chhatri Khanderao Holkar' has been entered as malik (owner) of the disputed land, and the disputed land has been shown to be in 'muafi' of Bhondudas and Hariram, and that 'Chhatri Khanderao Holkar' has no title in the disputed land after enforcement of the Rajasthan Zamindari and Biswedari Abolition Act, 1959. Deceased Gopaldas S/o. Girvardas was cultivating the disputed land as 'gair morusi' tenant since Samvat 2013 and his name was ordered to be entered in the khasra girdavari as a 'gair morusi' tenant by order of Sub Divisional officer, Bharatpur, dated 31.05.1976. Since Gopaldas S/o. Girvardas was cultivating the disputed land as a 'gair morusi' tenant on 15.11.1959, the date of abolition of biswedari, he had acquired khatedari rights in the same and he had full right and authority to sell the disputed land in favour of Ghamandi, petitioner No. 6, vide registered sale deed dated 16.05.1974 and there is no reason for doubting his title.;