Mohammad Rafiq, J. - (1.) THIS writ petition has been filed by the petitioner - Vidhyadhar Sunda, challenging two orders passed by the District Collector both dated 20.9.2000 (Annexure -8 and 11). By first order, Collector, Sikar has allowed the application filed by respondent Nos. 4 to 16 herein and made a reference to the Board of Revenue, Ajmer for setting aside judgment and decree dated 19.10.1981 passed in revenue suit No. 274/1981 titled Vidhyadhar v. Noparam & Ors. and cancelling the mutation No. 258 and again recording the land in dispute in the khatedari of Noparam Nayak and Nolaram Balai, holding that mutation of the land of person belonging to Scheduled Caste was wrongly attested in favour of a person of general category in breach of Section 42(b) of Rajasthan Tenancy Act. By second order, Collector Sikar has allowed the application u/s. 82 of the Rajasthan Land Revenue Act, 1956 filed by the State through Tehsildar, Sikar for cancelling the mutation No. 258 attested by Tehsildar, Sikar in respect of the land of Village Samarthpura and for recording the said lands again in the khatedari of Noparam Nayak and Nolaram Balai, members of the Scheduled Caste. The petitioner has also challenged the order of Board of Revenue dated 5.1.2001 (Annexure -13) whereby reference in both the aforesaid cases was accepted and the mutation No. 258 attested in favour of the petitioner, referred to supra, was cancelled and the land in dispute was again ordered to be recorded in the khatedari of Noparam and Nolaram Balai. Prayer has also been made in the writ petition for restoring the judgment and decree dated 19.10.1981 passed by the SDO, Sikar in Suit No. 274/1981.
(2.) ACCORDING to the petitioner, the dispute pertains to the lands of khasra No. 44/5 min measuring 11 bighas, which in the new settlement were recorded as khasra No. 176 measuring 1.38 hectares, khasra No. 178 measuring 1.08 hectares and khasra No. 177 measuring 0.02 hectares in Village Samarathpura, Tehsil and District Sikar. The land comprising in old khasra No. 44, Village Samarathpura, Tehsil and District Sikar measured 188 bigha and 13 biswas. It was originally recorded as siwai chak. Different parcels of lands were regularised in favour of several landless persons under different orders passed by Collector, Sikar. 11 bighas out of the said land recorded in khasra No. 44/5 min was regularised in favour of Noparam Nayak, a member of Scheduled Caste. 6 bighas out of that very khasra was regularised in favour of Toda, Mala and Goru, each having 2 bighas of land, whose L.Rs. are now respondent Nos. 4 to 16 herein. Petitioner claims to be in possession of half land of khasra No. 44/5 min, measuring 2 bighas and 10 biswas. He asserts that he has constructed two rooms, kitchen, veranda and cattle shed in the area of 500 sq. mtrs thereof, towards south of new khasra No. 178. He has also constructed a well in the same land and is having electricity connection. It is alleged that Noparam Nayak after regularisation of 11 bighas of land comprising in khasra No. 44/5 in his favour, sold 5 bighas and 10 biswas out of that land of khasra No. 178 vide registered sale deed dated 7.2.1978 to respondent Nolaram Balai. In the remaining half, Noparam Nayak has constructed his own house and the houses of relatives, which fell in khasra No. 175. Their interest in the half land now in the present writ petition, is being represented by respondent Nos. 17 to 29. Petitioner -Vidhyadhar Sunda filed a suit for declaration, perpetual injunction and correction of entries in the Court of SDO, Sikar impleading deceased Noparam Nayak, Nolaram Balai and the Government of Rajasthan through Tehsildar, as defendants. He pleaded that no part of land of his possession, had ever remained in possession of the deceased Noparam and that deceased Noparam had nothing to do with 5 bighas and 10 biswas of lands, possessed by the petitioner. Although Noparam Nayak was in occupation of the land comprised in khasra No. 175 and 178 only, the Settlement Department has wrongly entered the land of khasra No. 176 in the name of deceased Noparam in place of khasra No. 175. According to petitioner, Noparam Nayak and Nolaram Balai, both filed their written statement admitting the averments made in the plaint by the petitioner, but despite service of notice, no one appeared on behalf of State. Statements of petitioner himself as plaintiff and deceased Noparam as defendant, were recorded in the suit. The Sub -Divisional Officer, Sikar vide judgment dated 19.10.1981 decreed the suit in favour of petitioner. Deceased Noparam even filed appeal against the aforesaid judgment and decree before the Revenue Appellate Authority, Sikar, which was dismissed as barred by limitation vide judgment dated 10.12.1991. Noparam Nayak then filed second appeal before the Board of Revenue, Rajasthan at Ajmer, which too was withdrawn by his successors -respondent Nos. 17 to 30 and was accordingly dismissed vide judgment dated 4.10.1993. It was thereafter that the respondents Toda, Mala and Goru filed a suit for declaration and perpetual injunction against deceased Nolaram and Noparam and their legal heirs in the Court of SDO, Sikar on 26.8.1991 regarding the land comprised in khasra No. 176 situated in village Samarathpura. The said suit is stated to be still pending. Simultaneously, the respondent Toda, Mala and Goru submitted an application under Section 232 of the Rajasthan Tenancy Act, 1955 on 14.10.1991. In that proceeding, the Tehsildar, Sikar submitted report before the Collector on 19.12.1996 for cancellation of mutation, which ultimately culminated in the order of making reference to the Board of Revenue and the Board accepted the reference by the impugned judgment.
(3.) SHRI Sanjay Mehrishi, learned counsel for the petitioner has argued that the order making reference passed by District Collector, Sikar and the judgment passed by the Board of Revenue on that basis, are illegal and without authority of law. SDO, Sikar passed the judgment and decree as far back as on 19.10.1981, whereas the reference order has been passed by Collector with enormous delay of 19 years on 20.9.2000. The Board of Revenue has therefore erred in law in accepting such a belated reference. Even if no limitation has been prescribed for making of reference, the Collector could make the order of reference only within reasonable time and the Board of Revenue could also have accepted the reference only if it is made within the reasonable time and not with such enormous delay. When the remedy of regular suit was availed by Toda, Mala and Goru, they were debarred from filing the application under Section 232 of the Act. Reliance in support of this argument is placed on the judgment in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat - : AIR 1970 SC 1. Learned counsel for the petitioner has also relied on the judgment of Full Bench of this Court in Chiman Singh v. State of Rajasthan -2000 (2) WLC (Raj.) page 1, judgment of Supreme Court in Ram Karan (Dead) through L.Rs. & Ors. v. State of Rajasthan & Ors. - : AIR 2014 SC 3070, State of Punjab & Ors. v. Bhatinda District Cooperative Milk P. Union Ltd. -AIR 2007 (SC) Suppl. 473. Reliance for the same purpose is also placed on the judgments of this Court in State of Rajasthan v. Teja & Ors. -2005 (1) DNJ 2005 page 162, Hanja Ram & Ors. v. State & Ors. -2007(1) RRT 39, State of Rajasthan v. Raj Gajendra Singh through L.Rs. & Ors. -2006 (1) DNJ (Raj.) 142, Sunehari & Ors. v. State & Ors. -2010(1) RRT 577 and Hari Ram & Anr. v. State & Ors. -RRD 1996 page 538.;