Dismissed

Ramesh Chand @ Ramesh Prakash v. Smt Ram Kanwari and Ors.

Rajasthan HC22 Aug 2024CW/2907/2005

Case brief

AI extract

What is this about?

This writ petition challenged the Board of Revenue's dismissal of a suit for declaration of khatedari rights based on adverse possession. The High Court, finding the lower courts' findings correct regarding permissive possession and the statutory bar under Section 42 regarding Scheduled Tribe land, dismissed the writ petition.

What did the court decide?

The writ petition was dismissed; the impugned judgment of the Board of Revenue was affirmed.

Ramesh Chand @ Ramesh Prakash Vs Smt Ram Kanwari and Ors. — Property and Title | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 2907/2005

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Ramesh Chand @ Ramesh Prakash S/o Shri Prabhu Daya, R/o Aklera, District Jhalawar.

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----Petitioner

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Versus

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Smt. Ram Kanwari (since deceased through her LRs)

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1/1 Ram Kalyan Meena, aged about 52 years,

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1/2 Mohan Lal Meena, aged about 48 years,

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1/3 Ramswaroop Meena, aged about 40 years,

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All sons of Shri Kanhaiya Lal Meena, R/o Village Tharol, Tehsil Aklera, District Jhalawar (Raj.).

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State of Rajasthan, through the Tehsildar, Tehsil Aklera, District Jhalawar.

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Board of Revenue, Ajmer, through its Registrar.

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Revenue Appellate Authority, Kota.

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The SDO Aklera, District Jhalawar.

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----Respondents

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For Petitioner(s) : Mr. Adhiraj Singh for Mr. Devendra Raghava For Respondent(s) : Mr. Neeraj Batra, GC

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Judgment

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Judgment reserved on : July 10^th , 2024 Judgment Pronounced on : August 22nd ,2024 BY THE COURT:

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Petitioner is plaintiff, who has preferred instant writ petition, purportedly under Article 226 of the Constitution of India which indeed must have been filed under Article 227 of the Constitution of India, challenging the judgment dated 07.10.2003 passed by the Board of Revenue, dismissing his Second Appeal No.54/2002

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and affirming the judgment dated 17.07.2000 passed by the Revenue Appellate Authority, Kota in Appeal No.146/2000, so also, the judgment dated 26.06.2000 passed by the Sub-Divisional Officer, Aklera in Revenue Suit No.1197/1994 whereby and whereunder, the plaintiff’s suit filed under Sections 88 and 91 of the Rajasthan Tenancy Act for declaration of khatedari rights on the land in question, on the basis of adverse possession has been dismissed on merits.

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Heard counsel for petitioner and counsel for State at length and perused the record.

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The relevant facts, in brief, as culled out from the record are that the petitioner-plaintiff instituted a revenue suit on 16.03.1994 against one Smt. Ram Kanwari and State of Rajasthan through Tehsildar under provisions of Sections 88 and 91 of Rajasthan Tenancy Act, asserting that land of Khasra No.223 (old Khasra No.186) measuring 4 bigha 3 biswa at village Tharol, Tehsil Aklera, District Jhalawar is recorded in the revenue record, in khatedari of respondent-defendant Smt. Ram Kanwari (a widow lady, Member of Scheduled Tribe being by caste Meena) but indeed plaintiff claimed to have cultivatory possession of such land since 1967 continuously. Thus the plaintiff, asserting his long possession over the khatedari land of defendant, claimed to acquire khatedari rights by virtue of having adverse possession on the land in question and made a prayer of declaration of his khatedari rights over the land in question.

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Such revenue suit was resisted by the respondent-defendant Smt. Ram Kanwari stating inter alia that defendant is a widow lady

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of Scheduled Tribe caste and is recorded khatedar of the land in question. She submitted that at one point of time, plaintiff was permitted to cultivate her land on sharing basis, hence, his possession was merely a permissive possession, that too has been removed and she has got back the actual possession of the land in question from the plaintiff, therefore, the case of plaintiff to claim adverse possession over the land in question was empathetically denied. In addition, defendant opposed the suit on the ground that since she is a member of Scheduled Tribe, therefore, on the land of her khatedari rights no declaration of khatedari rights in favour of plaintiff who is person of General Caste can be made because same would be in breach of the spirit of Section 42 of Rajasthan Tenancy Act, 1955.

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The suit was considered and decided on merits by the SubDivisional Officer Aklera and the fact that prior to institution of the present revenue suit, defendant Smt. Ram Kanwari had filed a suit against plaintiff under Section 183 of Rajasthan Tenancy Act bearing Case No.505/75 to take possession of the land in question from him, which had been dismissed vide judgment dated 29.06.1978 by Pargana Officer, Akhlera was taken into consideration. It was observed that when that previous suit was remanded, such suit came to be dismissed in default on 03.12.1982. While considering this fact, the Court relied upon the contention of the respondent that in the meanwhile, she had obtained the actual possession of the land in question from plaintiff and therefore, she did not pursue her suit under Section 183 of the Rajasthan Tenancy Act and got the same dismissed in

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default and for non-prosecution. Thus, the Sub-Divisional Officer, Aklera did not find the possession of the land in question with plaintiff and consequently, his suit for declaration of the khatedari rights on the basis of adverse possession was dismissed on merits vide judgment dated 26.06.2000.

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The Sub-Divisional Officer also held that in view of undisputed fact that khatedari of the land in question is recorded in the name of defendant who is a member of Scheduled Tribe Category, therefore, over the agricultural land belonging to Scheduled Tribe Category person, khatedari rights in favour of a person belonging to General Caste cannot be declared in view of specific bar under Section 42 of the Rajasthan Tenancy Act.

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Plaintiff preferred appeal against the judgment dated 26.06.2000 which was heard and dismissed on merits by the Court of Revenue Appellate Authority and Land Settlement Officer, Kota vide its judgment dated 17.07.2000. 7. Plaintiff preferred second appeal under Section 224 of the Rajasthan Tenancy Act, before the Board of Revenue and his second appeal has also been dismissed on merits vide judgment dated 07.10.2003. The Board of Revenue affirmed the findings that the initial possession of plaintiff over the land in question was merely permissive, which cannot be converted into adverse possession. Further, the Board of Revenue also affirmed the proposition of law that on the khatedari land of person belonging to Scheduled Tribe category, khatedari rights in favour of a person belonging to General Caste cannot be declared on the basis of adverse possession.

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Having gone through the judgment passed by the SubDivisional Officer, Aklera, which has been affirmed in first appeal by the Revenue Appellate Authority and further in second appeal by the Board of Revenue, this Court finds that there are concurrent findings of fact of all three Courts that the possession of plaintiff over the land in question was merely permissive possession, since the respondent-defendant, who was a widow lady of Scheduled Tribe caste, permitted cultivation of her khatedari land through plaintiff on sharing basis. Further there are findings against plaintiff that the possession of land in question has been taken by the defendant, thus the claim of plaintiff to have continuous and long possession over the land in question has been disbelieved by all the Courts.

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It is settled proposition of law that a permissible possession cannot be converted into adverse possession unless it is proved that the person in possession asserted and acquired adverse title to the property to the knowledge of the true owner for a period of 12 years and above. Such proposition of law has been expounded by the Hon’ble Supreme Court in case of Bhura Mogiya & Ors. Vs. Satish Pagariya & Ors. reported in [(2001) 9 SCC 385] . 10. In an another judgment delivered by the Hon’ble Supreme Court in case of Konda Lakshmana Bapuji Vs. Govt. of A.P. & Ors. reported in [(2002) 3 SCC 258] , it was held in Para No. 53 as under:

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“ 53. The question of a person perfecting title by adverse possession is a mixed question of law and fact. The principle of law in regard to adverse possession is firmly established. It is a well-settled proposition that mere possession of the land,

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however long it may be, would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animus possidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus possidendi , the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist. The length of possession to perfect title by adverse possession as against the Government is 30 years.”

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In view of aforereferred proposition of law coupled with the fact findings recorded by all the Courts against plaintiff in respect of having a permissible possession over the land in question and further possession of the land in question has been obtained by the respondent-defendant, this Court does not find any illegality and perversity in the judgments impugned, dismissing plaintiff’s suit for declaration of khatedari rights over the lands in question on the basis of adverse possession.

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Coming to the spirit of Section 42 of Rajasthan Tenancy Act, it has also been opined in several judgments delivered by the Rajasthan High Court that by virtue of doctrine of adverse possession, right, title or interest could not have been acquired in favour of a person of General Caste against the agricultural land belonging to a person of Scheduled Caste or Scheduled Tribe Category, because that would be against the mandate of Section

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42 of the Rajasthan Tenancy Act. To buttress such proposition of law, reference of a judgment of Coordinate Bench of Rajasthan High Court, in case of Babu Singh vs. State of Rajasthan, (RLW 1998(1) Raj. 507) , in which the Court considered the question of acquisition of khatedari right by virtue of adverse possession in favour of person of non-Scheduled Caste/ Scheduled Tribe Caste, on the land belonging to Scheduled Caste category, held that same will be in contravention of the provisions of Section 42 of the Act. The relevant portion of the aforesaid judgment is being extracted hereunder:

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“15. This Court had occasion to consider the question whether khatedari rights can be acquired by adverse possession even if the sale was in contravention of Sec.42 of the Tenancy Act in the case of Khuman Mal vs. Bheru (1994 RBJ 50). In that case, it was observed by the Division Bench that Section 42 of the Rajasthan Tenancy Act prohibits transfer of land by khatedar tenant belonging to Scheduled Caste to a person who does not belong to Scheduled Caste and the prohibition in this Section is absolute, and that as the sale of land held by a member of Scheduled Caste cannot be transferred by way of sale, gift or bequest or even by decree of a competent court, the same cannot be allowed to be entered in the name of persons who are seeking khatedari rights on the basis of possession. It was further observed that under Section 88 a purchaser may acquire by adverse possession khatedari rights provided that the acquisition of khatedari is not specifically prohibited by law, which means that if a person, claiming to have acquired khatedari rights by contravention of any provisions of law prohibiting or invalidating the

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transaction which has occasioned such adverse possession or if any such provision of any State was thereby circumvented, will not acquire the khatedari rights. It is, thus, settled legal position that when a person has purchased the land in contravention of the provisions of Sec.42 of the Tenancy Act, he cannot acquire khatedari rights by adverse possession.”

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(emphasis supplied)

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Thus, it can be concluded that the fact findings as well as the legal proposition recorded by the Court of Sub-Divisional Officer and affirmed by the Revenue Appellate Authority and Board of Revenue, are neither perverse nor suffer from any infirmity or jurisdictional error which causes miscarriage of justice. The judgments delivered by all the Courts are well within jurisdiction and do not warrant any interference by the High Court in exercise of its writ jurisdiction.

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As a final result, the writ petition is not liable to succeed and same is hereby dismissed.

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All pending application(s), if any, stand(s) disposed of.

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(SUDESH BANSAL),J

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RONAK JAIMAN/30

Ramesh Chand @ Ramesh Prakash v. Smt Ram Kanwari and Ors.

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Ramesh Chand @ Ramesh Prakash v. Smt Ram Kanwari and Ors.

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