Alok Sharma, J. - (1.) A challenge has been made in this petition to the judgment dated 26.09.2001, passed by the Division Bench of the Board of Revenue, Rajasthan, Ajmer (hereinafter "the Board").
(2.) THE issue in the present petition is as to whether old khasra No. 1236/1, village Naurangabad, Tehsil Hindaun, District Karauli to the extent of 17 biswas is the Gair Mumkin Rasta or khatedari land of the respondent No. 4 - -Bhagwan Sahai. The SDO, Hindaun vide judgment dated 30.06.1989 in the exercise of his powers under Section 136 of the Rajasthan Land Revenue Act, 1956 (hereinafter "the Act of 1956") held that the entries in the name of the respondent No. 4 - -Bhagwan Sahai in respect of the aforesaid old khasra in Samvat 2046 to an extent of 21 airs had been wrongly made as the said parcel of land was a Gair Mumkin Rasta and directed that corrections be accordingly made. Aggrieved, the respondent No. 4 filed an appeal before the Additional Divisional Commissioner, Kota, who vide judgment dated 21.07.1993 proceeded to overturn the judgment dated 30.06.1989, passed by the SDO for reason of the respondent No. 4 - -Bhagwan Sahai having purportedly purchased the said parcel of land in old khasra No. 1236/1, village Naurangabad, Tehsil Hindaun, District Karauli from one Manoharlal and Gopal Ji, its erstwhile khatedars since Samvat 2029. Aggrieved, now the petitioner approached the Board, which vide order dated 23.09.1999 set aside the judgment dated 21.07.1993, passed by the Addl Div. Commissioner and restored the judgment dated 30.06.1989, passed by the SDO. Having failed in review against the judgment dated 23.09.1999 before the Single Member of the Board, the respondent No. 4 - -Bhagwan Sahai laid a D.B. Special Appeal under Section 10 of the Act of 1956 before the Board which vide judgment dated 26.09.2001 set aside the judgment dated 23.09.1999, passed by the Single Member of the Board and restored the judgment dated 21.07.1993, passed by the Addl. Div. Commissioner holding that the respondent No. 4 -Bhagwan Sahai was entitled to khatedari in respect of 21 airs of land in old khasra No. 1236/1, village Naurangabad, Tehsil Hindaun, District Karauli. Hence this petition. Mr. Sanjay Mehrishi, appearing for the petitioners, has submitted that the entire case set up by the respondent No. 4 as accepted by the Division Bench of the Board on the basis of a belated filing of a registered sale -deed dated 01.11.1973 is negated by the facts enumerated in the judgment dated 14.12.1987, passed by the Additional Collector, Karauli in Misc. Case No. 209/89 wherefrom it is evident that following direction of eviction by the jurisdictional Tehsildar under Section 91 of the Act of 1956, the respondent No. 4 - -Bhagwan Sahai moved an appeal claiming regularization of his trespass into old khasra No. 1236/1 aforesaid. Therein the Additional Collector found that Bhagwan Sahai was not a landless agriculturist entitled to allotment by way of regularization under Section 20 of the Rajasthan Land Revenue (Allotment of Land for Agriculture Purpose) Rules, 1970 (hereinafter "the Rules of 1970") and in fact was seeking to unauthorizedly claim and use old khasra No. 1236/1, village Naurangabad, Tehsil Hindaun, District Karauli not for agricultural purpose, but for the commercial purposes and in this view of the matter was not entitled to regularization of the land but instead eviction as ordered by the Tehsildar. Counsel submits that the Board overlooked the clear contradiction in the case of the respondent No. 4 - -Bhagwan Sahai while claiming khatedari rights to the land in issue in terms of the registered sale -deed dated 01.11.1973 on the one hand whereby he purported to have purchased 21 airs land in old khasra No. 1236/1, village Naurangabad, Tehsil Hindaun, District Karauli from the erstwhile khatedars while on the other he unsuccessfully sought regularization in respect of the same khasra in the year 1987 under Section 20 of the Rules of 1970. It is submitted that the Division Bench of the Board in the circumstances could not have peremptorily relied upon a document filed for the first time before it i.e. the purported registered sale -deed dated 01.11.1973 without reflecting as to which part of the land in the old khasra No. 1236/1, it related to, nor could have in the circumstances concluded that the disputed land was not a Gair Mumkin Rasta as recorded in the record of rights (jamabandi) of Samvat 2046.
(3.) MR . J.P. Goyal, Sr. Advocate with Mr. Ashok Bansal, appearing for respondent No. 4 submits that old khasra No. 1236/1, village Naurangabad, Tehsil Hindaun, District Karauli was a large parcel of land which included both the land in the khatedari of the respondent No. 4 pursuant to the registered sale -deed in his favour executed on 01.11.1973 by the erstwhile khatedars as also other parts over which the respondent No. 4 had encroached and of which he had sought regularization under Rule 20 of the Rules of 1970 before the Additional Collector, Karauli in Misc. Case No. 209/89 decided on 14.12.1987. It is submitted that in this view of the matter, nothing turns on the judgment dated 14.12.1987 passed by the Addl. Collector, Karauli and the impugned judgment dated 26.09.2001, passed by the Board ought not to be interfered with by this Court on that count. It has also been pointed out that even otherwise the petitioners as the LRs of Radheshyam have no occasion to pursue this writ petition inasmuch as in a civil suit filed by Radheshyam before the Civil Judge (Jr. Division) and Judicial Magistrate, Mahaveer Ji, Karauli against the respondent No. 4 - -Bhagwan Sahai, which was pursued by the petitioners following Radheshyam's death as his LRs, a specific issue was framed as to whether old khasra No. 1236/1, village Naurangabad, Tehsil Hindaun, District Karauli was a Gair Mumkin Rasta over which the plaintiffs (the petitioners in the writ petition) had a right of way. It has been submitted that the said suit was dismissed by the Civil Court under its judgment and decree dated 02.09.2003 holding that old khasra No. 1236/1, village Naurangabad, Tehsil Hindaun, District Karauli in possession of the respondent No. 4 - -Radheshyam was not a Gair Mumkin Rasta. Mr. Goyal however fairly admitted that the said judgment and decree dated 02.09.2003 is in appeal under;