Mohammad Rafiq, J. - (1.) THIS appeal is directed against the judgment of learned Single Judge dt. 03.08.2006 whereby the writ petition of the appellants filed against the judgment of the Board of Revenue dt. 24.10.1994 was dismissed. The Board of Revenue in that judgment had upheld the judgment of Revenue Appellate Authority, Kota which while partly allowing the appeal of the respondent No. 5 set aside the judgment/decree dt. 05.01.1994 passed by Assistant Collector, Kota in her suit filed under Section 183 of the Rajasthan Tenancy Act, 1994 (for short 'the Act ') thereby directing him to first decide the proceedings initiated by the land holder under Section 175 of the Act.
(2.) FACTUAL matrix of the case is that the ancestral land of the appellants bearing khasra No. 149 measuring 23 bighas is situated in village Rajnagar, Tehsil Ladpura, District Kota. Originally this land was entered in the khatedari of Narayan and upon his death, in the name of his son Mangi Lal who expired on 25.09.1995. Mangi Lal being father of the appellants herein, they in their capacity as his legal heirs and successors are claiming this land. The said Mangi Lal sold this land for a sale consideration of Rs. 28,000/ - to the respondent No. 5 Smt. Vishnu Kant in the year 1974. In the course of time, the respondent No. 5 transferred this land in favour of Shri Ved Mata Gayatri Trust, Kota i.e. Respondent No. 6 herein. According to the appellants, Mangi Lal being Karta of the family could not have sold this land against the interests of other members of the family and much less without their consent. Besides, this transfer was void in view of the bar contained in Clause (b) of Section 42 of the Act according to which land owned by a member of Scheduled Caste could be sold to a member of Scheduled Caste only and none else. When Mangi Lal realised his mistake, he filed a revenue suit under Section 183 read with Clause (b) of Section 42 of the Act against respondent No. 5 before Assistant Collector, Kota on 25.05.1976 on the premise that the sales/transfer was void ab initio and therefore respondent No. 5 was liable to be ejected from such land treating her to be a trespasser. The respondent No. 5 contested the matter asserting that she was bona fide purchaser of the land having paid sale consideration therefore to the said Shri Mangi Lal. In the alternative, however, she claimed back the amount of sale price. During the pendency of the said suit, Tehsildar Ladpura in his capacity as the land holder, in the meaning of Section 2(26) of the Act, filed an application before the Assistant Collector, Kota on 01.01.1994 stating therein that he had already initiated action against respondent No. 5 and the plaintiff in the year 1976 for recovery of possession of the said land in accordance with the provisions of Section 175 of the Act. The Assistant Collector however passed a judgment/ decree in favour of Shri Mangi Lal vide his order dt. 05.01.1994. When the judgment was challenged before the Revenue Appellate Authority, the Authority vide its judgment dt. 11.04.1994 directed that the Assistant Collector should first decide the application filed by the Tehsildar under Section 175 of the Act and on that premise, set aside the judgment and decree dt. 05.01.1994 and remanded the matter back to him. It is this judgment which was later upheld by the Board of Revenue and also by the learned Single Judge. Hence this special appeal. We have heard Shri K.K. Mehrishi, Senior Advocate assisted by Shri Timan Singh for the appellants and perused the material on record.
(3.) SHRI K.K. Mehrishi, learned Counsel for the appellants argued that the learned Single Judge has failed to correctly appreciate the provisions of Section 175 in as much as when the final judgment had been passed in the suit filed by the appellants under Section 183, mere pendency of application under Section 175 would not be a ground to annul the judgment and decree so passed. He argued that the sale made by Mangi Lal on 26.04.1994 was void ab initio and therefore possession of the transferee i.e. respondent No. 5 over the disputed land was in the capacity of trespasser who was liable to be ejected by recourse to Section 183 of the Act. The transferee obtaining possession under a void transaction of sale was liable to be treated as trespassers and suit for her ejectment under Section 183 of the Act was maintainable. Shri Mehrishi argued that Mangi Lal sold the land to respondent No. 5 but later realizing that the sale being in violation of Section 42(b) of the Act was void, filed a suit for recovery of possession. The transaction of sales being void, no title ever stood transferred to the respondent No. 5. Shri Mehrishi in the course of arguments sought to make a distinction between void and voidable contract for sale and argued that in view of law contained in Section 42 of the Act, the transaction of sale in question was void and therefore no formal declaration for its being void was necessary and therefore as per the provisions of Section 183 of the Act, the transferee would be treated to have taken or retained possession of the land without lawful authority and application under Section 183 for his ejectment was therefore maintainable. It was argued that learned Single Judge committed an error of law in holding that apart from the transferee of the land, Mangi Lal, the predecessor in title of the appellants, being transferor, was equally responsible for violation of Section 42 of the Act and was also liable to be ejected from the land in question. It was argued that the learned Single Judge has misconstrued and misinterpreted the definition of trespasser as given in Section 5(44) of the Act. There was a clear distinction between a transferor and a holder of the land, therefore, it was an illegal transaction. Shri Mehrishi argued that the bar of Clause (b) of Section 42 of the Tenancy Act having been inserted by amendment w.e.f. 01.05.1964, it could never be the intention of the legislature to apply Section 175 of that Act to a transaction of sale which was void ab -initio and was deemed never to have taken place. Section 42(b) of the Act intended to protect interest of weaker sections of the society, therefore, contrary to the intention of the legislature, Section 175 could not be applied to such transactions and the transferee in such situation could legitimately proceed against the transferor under Section 183 of the Act to recover his lost possession because in view of Clause (b) of Section 42 of the Act, the transferee is liable to be treated as trespasser. It was argued that Section 175 presupposes the transfer by a tenant of his holding otherwise than in accordance with the provisions of the Act and in the present case the sale transaction in question being void ab initio, there in fact no transfer took place in the eye of law and as such, provisions of Section 175 would not be applicable. Shri Mehrishi in order to further develop this argument, went in so far as to argue that the revenue Courts had no jurisdiction to recognize a transfer which is void on account of violation of Section 42 and when such transfer is not recognizable in law, it cannot be said to have at all taken place in law so as to attract the provisions of Section 175, even if possession of the land pursuant to such void transaction had changed hands. Shri Mehrishi in support of his arguments relied on the Division Bench judgment of this Court in Babu Singh v. State of Rajasthan and Ors., 2002 (1) WLC (Raj) 490 and Single Bench judgment in Kamad and Ors v. Board of Revenue and Ors., RLR 1985 553.;