Mohammad Rafiq, J. - (1.) CHALLENGE in this case is the judgment dt. 06.11.1996 passed by the learned Board of Revenue on a reference of Additional Collector, Tonk under Section 82 of the Rajasthan Land Revenue Act, 1956 and the order dt. 23.12.1997 by which the Board rejected review petition. The petitioners are resident of village Kiraval, Tehsil Malpura, District Tonk. They have asserted that the agricultural land comprising Khasras Nos. 1182/5.4, 1393/1.10, 1396/4.17, 1401/1.0, 1410/31.8, 1303/5.5 and 1385/7.8 measuring total area 23 bighas and 3 bishwa situated in village Kiraval Tehsil Malpura, has been in their cultivatory possession since the time of their ancestors. Settlement of village Kiraval was made in Samvat 2008 (year 1951). Settlement office recorded such land as ''Talabi '' in the revenue record. Copy of the Khasra settlement has been placed on record. It is submitted that the lands of Khasras No. 1303, 1385, 1392, 1397, 1401 and 1410 are the lands of the then State of Jaipur and the cultivators used to pay rent to the State authorities. During settlement of the Samvat 2010, these lands were entered as Sivay Chak Lagani, therefore, the names of cultivators were not shown in the record. Section 16 bars Khatedari rights in the land for casual or occasional cultivation in the bed of river or tank. According to the petitioners, however, the land in their cultivation was irrigated land and source of irrigation was tank and not the land used for casual or occasional cultivation in the bed of tank. The State Government issued circulars and decided to change land used for cultivation in the bed of tank prior to 13.01.1958, may be continued to be used for agriculture purpose and possession of cultivators should not be disturbed. On 06.09.1971, Tehsildar Malpura treating the land as 'Talabi Peta ' passed an order for cultivation and on the same date, he granted Gair Khatedari rights in favour of the petitioners regarding the land in dispute. Pursuant to the said order, mutation No. 261 was attested in their favour, copy of which has been placed on record. The land in dispute was never of casual or occasional cultivation in the bed of tank. The petitioner has also produced copies of Khasra Girdawari of Samvat 2027 to 2030.
(2.) THE Additional Collector, Tonk made a reference under Section 82 of the Rajasthan Land Revenue Act to the Board of Revenue, Ajmer on 24.03.1973 on the premises that Tehsildar Malpura has wrongly attested the mutation in favour of the petitioners on account of their alleged prolonged possession since the time of their ancestors. Such land has been recorded as Talabi Avval Sivay Chak in revenue record settlement Jamabandi of Samvat 2046 to 2049. In view of the bar contained in Section 16 of the Rajasthan Tenancy Act, Khatedari rights cannot accrue to the petitioners in talabi land. Mutation attested in their favour was therefore against the law and deserves to be set aside. The Board of Revenue accepted the reference vide order dt. 06.11.1996 and thereafter also rejected the review petition filed by the petitioners vide order dt. 23.12.1997. It is against these two orders that the present writ petition has been filed. I have heard Shri G. Bardhar, the learned Counsel for the petitioner and Shri B.S. Chhaba, the learned Deputy Govt. Advocate for the respondents.
(3.) SHRI Bardhar argued that the Revenue Courts have wrongly considered the land in dispute as Tank bed land used for casual or occasional cultivation. He referred to Section 150 of the Rajasthan Land Revenue Act which provides for classification of soil. Section 150 provides for classification of the soil in different classes in accordance with rules made thereunder. Such rules framed by the Government are known as Rajasthan Land Revenue (Survey, Record & Settlement) Rules, 1957.R.39 of the said rules has been framed with a view to give to effect to the provisions of Section 150 of the Rajasthan Land Revenue Act. Shri Bardhar submits thatR.39 includes Nahari or Talabi land irrigated by canal or tanks and Talabi Petha irrigated by tank bed areas. Shri Bardhar, therefore argued that Talabi Lagan does not mean that the land in question would not be available for conferring Khatedari rights and Section 16 of the Rajasthan Tenancy Act would not be attracted. He submits that Section 16, even otherwise amended on 13.01.1958.;