Mohammad Rafiq, J. - (1.) THE petitioners have filed this writ petition challenging the judgments of the Board of Revenue dt. 24.11.1997 and that of the Revenue Appellate Authority dt. 10.11.1994 and have prayed for upholding the judgment of the Assistant Collector, Nandwai dt. 07.10.1989 whereby their revenue suit was decreed.
(2.) FACTUAL matrix of the case is that the predecessor in title of the petitioner namely Medue filed suit for declaration for permanent injunction with regard to 2 bighas and 15 bishwas of land of Khasra No. 196/3 situated in revenue village Chetari, Tehsil Nadbai, District Bharatpur. The case set up by the plaintiff before the Court of Assistant Collector was that he was in possession of the land and was recorded Khatedar tenant. During the last settlement proceedings, his name was recorded in Khasra Girdawari of Samvat 2029 to 2032. But his name was deleted therefrom for subsequent period which adversely affected their interest. The Tehsildar, Nadbai was bent upon ejecting the plaintiff and has in fact initiated proceedings against him under Section 91 of the Land Revenue Act, 1956 (for short ''the Act ''). Prayer was made for decree of declaration of ownership and permanent injunction. The revenue suit was proceeded ex -parte against the defendants by order of the Assistant Collector, Nadbai dt. 19.09.1986 and in these circumstances, it was decreed in favour of the plaintiff on 07.10.1989 declaring him to be Khatedar tenant of the land. Aggrieved thereby, the State of Rajasthan filed an appeal before the Revenue Appellate Authority, Bharatpur (for short ''the Authority '') who by order dt. 01.08.1987 allowed the appeal thereby reversing the judgment and decree passed by the Assistant Collector. The petitioners thereupon filed a further appeal before the Board of Revenue under Section 224 of the Rajasthan Tenancy Act. The Board by its judgment dt. 24.11.1997 has however dismissed the appeal. I have heard Shri Pawan Pareek, the learned Counsel for the petitioners and Shri H.V. Nandwana, learned Deputy Government Advocate for the State.
(3.) SHRI Pawan Pareek, the learned Counsel for the petitioners argued that the plaintiff was in possession of the land in dispute and on the basis thereof, the Assistant Settlement Officer by issuing Parcha Lagan dt. 16.05.1974 in his favour has acknowledged him to be Khatedar of that land. Mutation No. 12 was attested in the name of plaintiff and divided Khasra No. 196 of which Khasra No. 196/3 in an area of 1 bigha and 15 bishwas was recorded in favour of plaintiff Lahri. The order of the Assistant Settlement Officer dt. 16.05.1974 and the attestation of Mutation No. 12 by Tehsildar dt. 10.09.1975 were not challenged by the respondents before any Superior Authority/ Appellate Forum by filing any appeal. The order thus attained finality. The Tehsildar committed an error of law in cancelling the mutation No. 12 by order dt. 02.01.1977 two years after the mutation was attested. Shri Pawan Pareek argued that even if that the Tehsildar has the power to review, then also the limitation prescribed for filing review petition was only 30 days while the review in this case has been made after two years. The learned Counsel for the petitioners argued that the Board of Revenue has recorded a wrong finding in holding that the plaintiff based his suit merely on the basis of possession but the records do not indicate that he actually was in possession prior to Samvat 2012. According to him, the plaintiff was shown as Gair Khatedar tenant in Ex.P -2 and note was appended regarding the order of Assistant Settlement Officer. The order passed by the Assistant Settlement Officer having not been challenged, the learned Board of Revenue was not justified in holding that it was the case of recording wrong entries. He argued that the fact that the plaintiff was in possession of land at the time of commencement of Rajasthan Tenancy Act and therefore by virtue of Section 15 thereof was entitled to be conferred with the Khatedari rights was substantiated even from the pleadings of the respondent State in para No. 6 of the memorandum of appeal filed before the Authority in which it has been acknowledged that the plaintiff was recorded as sub -tenant at the time of abolition of Jamidari recorded as Gair Maurusidar. He argued that Jamidari was abolished with the enforcement of Rajasthan Jamidari and Veshwadari Abolition Act, 1959 and on abolition of the State with effect from 15.11.1959. The plaintiff thus became Khatedar tenant. This aspect has been completely ignored by the Authority as well as the Board of Revenue. He further argued that the Board of Revenue although upheld the arguments of the petitioner that the judgment passed by the Authority was not in conformity with the provisions of Order 41R.21 of CPC in as much as the Authority did not render its judgment issue wise. Yet, the Board has upheld the very same judgment. The Tehsildar on his own was not competent to set aside the mutation No. 12 and only way open to him was to make the request to the Collector for a reference to the Director of Land Records or the Board of Revenue in accordance with the provisions of Section 82 of the Act. He, therefore, submitted that the impugned judgment be set aside. The writ petition may be allowed in terms of the prayers.;