- (1.) THIS is a reference by the Commissioner, Jaipur dated 9. 10. 56 and arises under the following circumstances: -
(2.) IN village Khir Khari, Tehsil Malarna Chour, District Sawai Madhopur there is a Bagichi known as Bagichi of Munim Mithalal measuring 9 Bighas comprising khasra Nos. 37, 50 and 51. The land included in the Bagichi was given to one Jawaharmal Kanun go free of rent under a patta dated Magh Sudi Smt. 1888 for plantation of fruit trees. As Mithalal had made improvement in the plantation, the Bagichi, therefor, came to be known by the name of Bagichi of Munim Mithalal. It appears that in Smt. year 1985, this Bagichi reverted to Khalsa and was recorded as Siwai Chak in the record. Although the file pertaining to the resumption of Bagichi in Smt. year 1985 is not available, the fact of its reversion to Khalsa and its entry in Siwai Chak is not denied. After its resumption, the produce of the Bagichi was auctioned every year and the average income credited to the State was about Rs. 392/ -. Even in Smt. year 2005, the income credited to the State was Rs. 105/ -. IN Smt. year 2036 when the question of auctioning the produce of the Bagichi was taken up, it came to the notice of the Tehsildar that a Khatedari parcha of this Bagichi land had been issued by the Settlement Department in the name of Madanlal, Rameshwar Prasad and others. Thereupon the Tehsildar instituted an enquiry, from which it came to light that during the settlement operations, an application was put up by Madanlal, Kalyan Baksh, Rambilas, Nand Kumar and Rameshwar Prasad on 29. 1. 49 to the Settlement Officer, Kota with the request that as a pakka v ell constructed by their ancestors exists in Siwai Chak Khasra No. 37 measuring 7 Bighas and 17 Biswa, Khasra No. 50 measuring 14 Biswas and Khasra No. 51 measuring 9 Bighas and is known by the name of their ancestors, a parcha be given in their name and the Settlement rents fixed thereupon. This application was forwarded by the Settlement Officer to the Assistant Settlement Officer who in turn asked the Patwari of the circle to submit a statement in accordance with the Revenue Standing Order. The Patwari submitted a statement on 16. 2. 49 with details of Khasra No. , area, soil classification etc. with a note that in Khasra No. 37, there is a pakka well which was constructed by the ancestors of the applicants and that there are mango, tamarind and other trees which were also planted by their ancestors. Thereafter, the Assistant Settlement Officer, Sh. Narsinghdas Haldia recorded the statement on 22. 7. 49 of Kalyan Baksh, son of Mitha Lal one of the applicants and also one statement of Jiwan and Jinsi Patels and three others who stated that they had no objection to the parcha of the land being given to the applicants. On the same date i. e. 22. 7. 49 when the above statements were recorded the Assistant Settlement Officer, Shri Narsingh Das Haldia passed the following order : - "from the statements of the Patels and report of Patwari it appears that there is a pakka well and Bagichi in Khasra Nos. 37 and 51 which is in their possession since long, Hence Khasra Nos. 37 and 51 be entered in the names of Madanlal, son of Kanahiyalal, Rameshwar Prasad son of Prabhulal, Kalyan Baksh son of Mithalal, Rambilas and Nand Kumar sons of Durga Baksh and Govind Das son of Kalyan Baksh. Siwai Chak entry be cancelled. Papers be put up after correction. " IN compliance with this order, a parcha chakbandi was issued on 31. 7. 49, Khasra Nos. 37, 50 and 51 recording all excepting Govind Das as Khatedars each having 1/4 share with the soil classification as Ghair Mumkin Bag and annual rent of Rs. 14/1 - The Assistant Settlement Officer ordered entries to be made only with regard to Khasra Nos. 37 and 51 but Khasra No. 50 also finds place in the parcha, Moreover, the name of Govind Das son of Kalyan Baksh was omitted in the entries. After the Khatedari parcha was issued, they obtained a Pattedari parcha also on payment of premium of Rs. 143/7/- on 1. 12. 49. The question that come up for enquiry was as to how Siwai chak land was entered in the names of certain individuals. The Tehsildar finding that a parcha chakbandi had been issued to the applicants by the Settlement Department and thereafter a Pattedari parcha, recommended that the land be allowed to stand in the name of applicants. This recommendation was endorsed by the Sub-divisional Officer and the Collector but the Commissioner disagreeing with this, recommended to the Government in the Revenue Department on 26th Feb. , 1953, that the action of the Assistant Settlement Officer in issuing a Khatedari parcha of the resumed land was entirely wrong and therefore the Parcha chakbandi and patta be cancelled. The Government returned back the papers with the direction that a reference be made to the Board of Revenue under sec. 38 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. The Addl. Commissioner, Jaipur, has, therefore, made this reference agreeing with the recommendation of the Sub Divisional Officer and Collector that as the applicants are in possession of the disputed land Bagichi as well for the last six years, Parcha chakbandi end patta stand in their name, the parcha and patta be confirmed. We have heard the learned counsel for the parties and have examined the record as well. The contention of the applicants is that the land in dispute was held by their ancestors, that the Bagichi was also made by them and therefore, the officers of the Settlement Department had rightly given them the parcha. It is further argued that they had been in possession since the parcha had been issued to them, that the Khasra Girdawari of these years stand in their name, that the Settlement Department recorded their name on the basis of improvements made by their ancestors and parcha and patta once given cannot be cancelled. In the application put up by the applicants to the Settlement Officer, they clearly mentioned that Khasra No. 37, 50 and 51 are Siwai chak and requested for issue of parcha in their name on the ground that the well had been constructed by their ancestors. They did not mention that they were in possession of the land on the date they applied for entries to be made in their name. The patwari as well as the patels also did not state that the applicants were in possession of the land. The Assistant Settlement Officer Shri Narsingh Das Haldia was himself called before us to explain the circumstances under which entries had been made. His explanation is that under R. 6 of the Jaipur State Revenue Standing Order No. 2, the Settlement Officers, Assistant Settlement Officers or Record Officers had the powers of Deputy Commissioners and Nazims when any area was under assessment or revision of assessment. R. 3 of the order, authorised the Nazims to assign unoccupied dry land upto 30 Bighas or 10 Bighas of wet land. The Assistant Settlement Officer was of the cadre of Nazim and therefore, he had powers of assignment of unoccupied land upto 30 Bighas and this being an unoccupied land he passed an order to enter the land in the names of the applicants as their ancestors had made improvements on it. This line of reasoning of the Assistant Settlement Officer is absolutely untenable. This land was granted free of rent to the ancestors of the applicants in Smt. year 1888 which was later on resumed in Smt. year 1985. Therefore this land came under the category of Jadid Khalsa i. e. newly resumed land. The land was leased out every year and such it was not unoccupied land as well. Under R. 4 (c) of the Jaipur State Revenue Standing Order No 2, Jadid Khalsa (newly resumed) holdings in she khalsa and non-khalsa villages could be leased or assigned only with the previous sanction of the Government. The Asstt. Settlement Officer should have obtained the previous sanction of the Government before allotment. On this land there are a number of fruit and other valuable trees which yielded substantial revenue to the Government every year. Before assigning such land to any one it was necessary to have assessed the value of the trees standing thereon and under R. 18 of the Jaipur State Revenue Standing Order No. 2 it is laid down that the value of the trees standing or wells and buildings if any, on the land shall be recovered from the allottees. In this case, the Assistant Settlement Officer took no such action. It is abundantly clear, therefore, that the applicants were not in possession of the land when entries in their name were made by the Assistant Settlement Officer in 1949. The applicants also did not apply for issue of Parcha on the basis of possession. Their request was based on certain improvement made by the ancestors in the past. The basic principle of making entries in the record of rights during the course of settlement operation is the factum of possession. The applicant's case was that they were in possession in the past and therefore, the Siwai Chak land be recorded in their name. It was, therefore, clearly a case of fresh allotment and under the Jaipur State Revenue Standing Order No. 2, the Asstt. Settlement Officer should have obtained previous sanction of the Government. The learned Assistant Settlement Officer, therefore, exceeded his jurisdiction in making this allotment. The expedition with which this allotment was brought to a termination during the course of one single day may have more than one explanation The fact, however, remains that the hurry was clearly undesirable and improper. The learned Assistant Settlement Officer should have taken the trouble to ascertain the circumstances under which the land was resumed to Khalsa. He should have also appreciated properly of facts of the case and should not have allowed himself to be led away by vague generalisations. The possession of the applicants, if it ever can be called as such in the proper sense of term, commenced only after the so called assignment of the land by the learned Assistant Settlement Officer an act which was clearly illegal and ultra vires. We may also refer to rule 2 of the Jaipur State Revenue Standing Order No. 2. This rule enumerates the categories which cannot be assigned under the aforesaid Revenue Standing Order and the land reserved for village forest or any other land recorded as ghair mumkin in the settlement or revenue record cannot be so assigned. The land in dispute evidently belonged to this category and the learned Assistant Settlement Officer, for reasons best known to him, did not consider worth while to look into these mandatory provisions of law. We, therefore, consider this to be a fit case for the exercise of revisional jurisdiction vested in the Board by Rule 22 of the Jaipur State Revenue Standing Order No. 2. We, therefore accept the reference and direct that the Parcha Khatedari and Patta granted in favour of a Madanlal etc. shall be cancelled and the land in question shall be entered and continue to be entered as siwai chak ghair mumkin bag. .;