Mohammad Rafiq, J. - (1.) THIS writ petition has been filed by the petitioner against the order passed by the Board of Revenue dt. 20.06.2000 by which judgment of the learned Revenue Appellate Authority dt. 23.04.1992 was set -aside and that of Sub Divisional Magistrate Bayana dt. 09.07.1990 was restored. Petitioner has also challenged the judgment of S.D.M. Dated 09.07.1990.
(2.) THE factual matrix of the case is that Tehsildar Roopwas initiated eviction proceedings against the petitioner as well as respondent No. 2 under Section 175 of the Rajasthan Tenancy Act, 1955 (for short, "Act of 1955") in the Court of learned Additional City Magistrate, Bayana in the year 1976. Learned ACM rejected the application vide order dt. 05.02.1977. When petitioner came to know about the same on enquiry he learnt that in the revenue record, he was shown as 'Shikmi Kashtkar' in respect of land bearing Khasra No. 34 measuring 4 bighas 4 biswas situated at Village Mamtoli, Police Station Roopwas, Tehsil and District Bharatpur whereas petitioner and his predecessor i.e. his father (Ghoori) was khatedar of the said land and therefore petitioner filed a suit for declaration of his right and perpetual injunction against respondent No. 2 on the premise that the land in dispute was in possession of petitioner's father Ghoori and that he was cultivating the same as a khatedar ever since 2017 and after his death in 2023, land was mutated in favour of the petitioner vide Mutation dt. 08.10.1971 and since then, petitioner is cultivating the same and paying rent regularly. Premise on which the suit was filed was that said land was on lease for one year with the father of respondent No. 2 somewhere in Samwat 2016 and after completion of lease period, he although returned possession of the land to the father of the petitioner but in connivance with the officials of the revenue department, got himself entered as khatedar of the land and his father as 'Shikmi Khatedar'. During the pendency of the aforesaid suit filed by the petitioner, Prabhati, father of respondent No. 2, filed another suit, being Suit No. 85/1978 under Sections 88, 89 and 188 of the Act of 1955 against the petitioner for declaration and for perpetual injunction in regard to the same land which the petitioner contested. The said suit was dismissed in default vide order dt. 31.01.1979. But thereafter respondent No. 2 filed another suit being Suit No. 28/1979 under Section 183 -B of the Act of 1955 for ejection of petitioner from the land in dispute with the plea that he has been forcibly dispossessed from the land by the petitioner on 03.11.1978. Petitioner contested that suit also. Trial Court decreed the suit filed by father of respondent No. 2 under Section 183 -B in his favour on 14.09.1982 with direction that petitioner be ejected from the disputed land and be required to pay 15 times the amount of rent to respondent No. 2 from the date of his ejection from the disputed land by the petitioner on 03.11.1978. Petitioner challenged the judgment and decree passed by the trial Court in favour of respondent No. 2 under Section 183 -B on 14.09.1992 and filed appeal there against on the premise that petitioner could not be evicted in such a summary manner particularly when suit for ejection filed by him in respect of the same land was pending and there was an order dt. 18.07.1978 directing the parties to maintain status -quo. Revenue Appellate Authority allowed appeal of the petitioner and reversed the aforesaid judgment passed by the trial Court in favour of respondent No. 2 vide judgment and decree dt. 14.09.1982 declaring that earlier petitioner's father and subsequently petitioner himself were in possession of the land in dispute and in view of pendency of the suit, no eviction order could be passed. Respondent No. 2 filed appeal against the aforesaid judgment of the Revenue Appellate Authority before the Board of Revenue Rajasthan, Ajmer which was dismissed vide order dt. 25.03.1994. He therefore filed review petition which was also dismissed vide order dt. 23.07.1998. Status -quo order passed in favour of the petitioner was also unsuccessfully challenged by respondent No. 2 before the Revenue Appellate Authority and the Board of Revenue. However, finally suit filed by the petitioner was dismissed by the first Court vide judgment dt. 09.07.1990 against which, petitioner filed appeal before the Revenue Appellate Authority. Appeal of the petitioner was allowed by the Revenue Appellate Authority vide judgment dt. 23.04.1992. However, Board of Revenue in the appeal filed by respondent No. 2 reversed that judgment of the Sub Divisional Officer vide its order dt. 20.06.2000. Hence, this writ petition. Shri M.S. Yadav, learned Counsel for the petitioner has argued that Sub Divisional Officer and Board of Revenue both proceeded with the matter as if the land was transferred by the father of respondent No. 2 to petitioner's father in violation of Section 42 of the Act of 1955 whereas it was not at all case of transfer of land. Merely because respondent No. 2 happens to be member of Scheduled Caste, Section 42 of the Act is not attracted. Land in dispute was earlier recorded in the name of petitioner's father as khudkasht and this fact the petitioner in the suit filed before the first Court has mentioned that his father was recorded as khudkasht tenant from Samwat 2002 but subsequently petitioner in the appeal filed before the Revenue Appellate Authority against the judgment passed by the first Court dt. 14.09.1992 in the suit filed by respondent No. 2 under Section 183 -B, categorically pleaded that petitioner's father was recorded as khudkasht khatedar on the land in dispute but at that time he could not substantiate this fact by placing the document in this regard on record. Learned Counsel for the petitioner has relied on the documents Annexure -14, Annexure -15 and Annexure -16 i.e. certified copies of 'Khevat Khatoni' for Samwat 2007, Samwat 2011 and Samwat 2018, respectively filed with the rejoinder to show that the land in dispute i.e. Khasra No. 34 (supra) was recorded as khudkasht in the name of his father. It is contended that petitioner despite exercise of due diligence could not procure and produce these documents earlier and thereafter in his appeal filed before the revenue appellate authority against the judgment under Section 183 -B, but petitioner pleaded this fact as early as 1982. This aspect of the matter has not at all been considered by any of the Courts below. Revenue appellate authority was not justified in reversing the judgment passed by the Sub Divisional Officer. The Board of Revenue has erred in law in interfering with the order passed by the revenue appellate authority without any cogent and valid reason. Learned Counsel therefore submitted that order passed by the Board of Revenue and that of the Sub Divisional Officer both be set -aside and the matter be remanded back to the Sub Divisional Officer for deciding it afresh keeping in view the revenue records of Samwat 2007 onwards showing father of the petitioner was recorded as khudkasht khatedar in respect of the land bearing Khasra No. 34.
(3.) SHRI Tek Chand Rawal, learned Counsel for respondent No. 2 has opposed the writ petition and argued that bar contained in Section 42 of the Act of 1955 for transfer of the land belonging to Scheduled Caste to a non member of Scheduled Caste would not be applicable to a matter of transaction of land in respect of decree passed by the Court. Suit filed by the petitioner was not based on the premise that his father was ever recorded as khudkasht khatedar. It was filed only on the premise that father of the petitioner was recorded as 'shikmi khatedar' in the revenue records from Samwat 2017 to 2023 and therefore land was mutated in favour of petitioner on 08.10.1971. An altogether a new case could not be allowed to be set up now before this Court. It is contended that revenue appellate authority seriously erred in holding that after dismissal of th suit filed by respondent No. 2 under Section 183 -B upto revenue board, petitioner has remained in possession for more than twelve years, he was acquired title by reason of adverse possession. It is contended that such a declaration in respect of land of a Scheduled Caste cannot be made in a revenue suit even on the basis of adverse possession. Power contained in Sections 42 and 46 of the Act of 1955 would be equally applicable to the land where adverse possession over the land of members of Scheduled Castes is claimed by a nonmember. It is contended that mere dismissal of the suit filed by respondent No. 2 for eviction of the petitioner in a summary proceeding would not determine the issues against the petitioner so far as title of the land is concerned. Respondent No. 2 and his predecessor -in -title i.e. his father, were correctly shown as 'khatedar tenant' of the land in dispute and petitioner's father was rightly shown as 'shikmi khatedar'. There is no such error in the orders passed by the Sub Divisional Officer and that of Board of Revenue which can be said to be an error apparent on the face of record so as to warrant interference by this Court. The writ petition therefore be dismissed.;