Skip to content


Col. Mohan Singh Vs. the State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1858 of 1975
Judge
Reported in1981WLN(UC)62
AppellantCol. Mohan Singh
RespondentThe State of Rajasthan and anr.
DispositionPetition allowed
Excerpt:
rajasthan law reforms & acquisition of land owners estates act, 1963 - sections 6 & 9a--m & n tenants of land at commencement of act--held, collector had no jurisdiction to issue notices requiring them to deliver possession.;it is established that col. mohan singh, petitioner, was a tenant of the entire land under controversy forming part of the estate of maharaja gaj singh of jodhpur, at the commencement of the act. the collector jodhpur, therefore, had no jurisdiction or power to issue notices marked annexures 8 and annexure p. 4 to col. mohan singh and narendra singh respectively under section 9a of the act requiring them to deliver the possession of the lands under controversy.;the alternative remedy suggested by the additional government advocate in these cases was not.....k.d. sharma, c.j.1. s.b. civil writ petition no. 1858 of 1975 filed by col. mohan singh and s.b. civil writ petition no. 1874 of 1975 filed by narendra singh against the state of rajasthan and anr., arise out of almost identical facts and so they are disposed of together by one single order.2. the relevant facts giving rise to these petitions may be briefly narrated as follows:--col. mohan singh along with his son narendra singh was personally cultivating land comprised in khasra no. 4 situated at village bicharli in district jodhpur since year 1951 as a tenant of khudkasht of maharaja shri gaj singh of jodhpur. the land including 'kacholia beria' was taken by col. mohan singh on lease in the year 1951 from maharaja shri gaj singh for a period of 10 years and paid rs. 3800/-, per annum as.....
Judgment:

K.D. Sharma, C.J.

1. S.B. Civil Writ Petition No. 1858 of 1975 filed by Col. Mohan Singh and S.B. Civil Writ Petition No. 1874 of 1975 filed by Narendra Singh against the State of Rajasthan and Anr., arise out of almost identical facts and so they are disposed of together by one single order.

2. The relevant facts giving rise to these petitions may be briefly narrated as follows:--Col. Mohan Singh along with his son Narendra Singh was personally cultivating land comprised in Khasra No. 4 situated at village Bicharli in District Jodhpur since year 1951 as a tenant of Khudkasht of Maharaja Shri Gaj Singh of Jodhpur. The land including 'Kacholia Beria' was taken by Col. Mohan Singh on lease in the year 1951 from Maharaja Shri Gaj Singh for a period of 10 years and paid Rs. 3800/-, per annum as lease money for the land in question. Subsequent thereto possession of the land known as 'Kacholia Beria' was handed over by Col. Mohan Singh, petitioner, to Maharaja Shri Gaj Singh in the year 1961. He however retained 316 Bighas of land only in village Bicharli. The lease relating to this land was further extended in the year 1961 for a period of three years and the petitioner paid lease-money for that period. The land which was leased out to Col. Mohan Singh, petitioner, belonged to the full ownership of His Highness Maharaja Gaj Singh as it was shown in the list of his private properties which was prepared and approved of by Rajasthan Government and the Central Government. Later on, the Rajasthan Government in exercise of its powers under Section 7 of the Rajasthan Land Reforms and Acquisition of Land Owners Estates Act, 1963 (Act No. 11 of 1964), hereinafter referred to as the Act, issued Notification No. 1 (29) Revenue/A/60 dated August 11, 1964, which was published in the Rajasthan Raj Patra Part 4(C) ordinary dated August 13, 1964. The said notification reads as under:

In exercise of the powers conferred by Section 7 of the Rajasthan Land Reforms and Acquisition of Land Owners Estates Act, 1963 (Rajasthan Act No. 11 of 1964) the State Government hereby appoints the 1st day of September, 1964, as the date for the acquisition and vesting in the State Government of the estate of all land owners situated anywhere in Rajasthan.

The validity of the Act was challenged by way of several writ petitions in the High Court by former rulers of Jodhpur, Banswara, Dungarpur, Kishangarh, Jaipur Udaipur and Jaisalmer. All these writ petitions were heard and decided by Hon'ble Mr. V.P. Tyagi, J. (as he then was) vide his order dated December 16, 1969, by which Chapters IV and VI and the Schedule of the Act were held to be invalid and were struck down while upholding Chapters II & III to be valid. As the validity of Chapter III, which includes Section 6 of the Act, was upheld, every person who, at the commencement of the Act, was or was entered in the revenue records as a tenant or tenant of Khudkasht but not as a sub-tenant of any land forming part of an estate was deemed to be the Khatedar tenant of such land holding from the land owner of the Estate. Hence, according to the petitioners they, being tenants of the land in question at the commencement of the Act, became Khatedar tenants thereof holding from the land owner of the estate i.e. Maharaj Shri Gaj Singh of Jodhpur.

3. The survey of this land in village Bicharli was carried out in the year 1968 in connection with the settlement operations. The petitioner Col Mohan Singh and his son Narendra Singh, applied for making necessary corrections in the records of rights relating to the land under controversy on account of being in cultivatory possession thereof, since 1951. On their applications the State of Rajasthan and Maharaja Shri Gaj Singh of Jodhpur were called upon to file their replies. The Tehsildar, Jodhpur, representing the State of Rajasthan, filed a reply in response to the notice issued to him on the application of Col. Mohan Singh, and admitted that Col. Mohan Singh, petitioner, was in cultivatory possession of the land in question at the commencement of the Act. Likewise, Maharaja Gaj Singh of Jodhpur also admitted the tenancy of the petitioner. The Assistant Settlement Officer, after making necessary enquiry into the matter, came to a conclusion that Col. Mohan Sjngh, petitioner, had acquired Khatedari rights in the land in question as he had been in continuous cultivatory possession thereof since 1951 as a tenant of Khudkashat of Maharaja Gaj Singh of Jodhpur. The Assistant Settlement Officer accordingly, gave a judgment marked Annexure 2, which was never challenged by way of an appeal either by the State of Rajasthan or by Maharaja Gaj Singh of Jodhpur before any appellate court and so the judgment became final.

4. In pursuance of the judgment of the Assistant Settlement Officer, corrections in the record of rights were made by the Settlement Department and a settlement Parcha was issued in the name of the petitioner from Samvat year 2021 to Samvat year 2030, i.e. for a period often years. The petitioner was, therefore, entered in the revenue record as a tenant of Khudkasht on 15th March, 1964 and acquired Khatedari rights in the land in question even before the commencement of the Act. After the name of the petitioner was entered in the record of rights as a Khatedar tenant of the land under controversy, the settlement department recovered land revenue from him since 1964 upto the date of filing of the writ petition as is evident from the rent receipts marked Annexures 5 and 6.

5. The petitioner further asserted in his writ petition that in the year 1959 one Ladu Ram filed a suit against Col. Mohan Singh, petitioner, in the court of the Assistant Collector, Jodhpur, on the ground that he was cultivating the land in question and the petitioner had dispossessed him from his land. The suit was resisted by the petitioner and the Assistant Collector, after going through the oral as-well-as documentary evidence and after framing necessary issues, gave a decision that the land in question was not a 'Khalsa' land but it belonged to Maharaja Gaj Singh of Jodhpur and the petitioner had taken the land from the Maharaja on lease. The judgment of the Assistant Collector was confirmed by the Revenue Appellate Authority also on appeal by Ladu Ram. It was also alleged by the petitioner that recently one Udai Singh filed Writ Petition No. 1454 of 1975 against the State of Rajasthan in the High Court in which a reply to the writ petition was filed on behalf of the State of Rajasthan, wherein it was admitted that the land in question comprised in Khasra No. 4 in village Bicharli was shown in the revenue records in the name of Col. Mohan Singh, petitioner.

6. After acquiring Khatedari rights in the land in question, the petitioner made several improvements in the land after taking loans from the Orient Bank of Commerce and converted it into a well mechanised farm. In-spite of these facts the Collector, Jodhpur, issued a notice to the petitioner under Section 9A of the Act, as amended upto date, on November 13, 1975 calling upon the petitioner to surrender the possession of the land within 10 days from the receipt of the notice, although the Collector, had no jurisdiction whatsoever to issue such notice to the petitioner, who has become a Khatedar tenant of the land. The petitioner, therefore, prayed in his writ petition for issuance of writ of mandamus, prohibition or any other suitable writ or order for quashing the notice of the Collector, Jodhpur, marked Annexure 9 and for restraining the non-petitioners from ousting the petitioner from his land.

7. In addition to the facts mentioned in S.B. Civil Writ Petition No. 1858 of 1958 of 1975 filed by Col. Mohan Singh, some additional facts are mentioned in Writ Petition No. 1874 of 1975 filed by Narendra Singh which are as follows.

8. Narendra Singh is the son of Col. Mohan Singh. He cultivated land comprised in Khasra No. 4 situated in village Bicharli along with his father Col. Mohan Singh since 1951 as a tenant of Khud Khashat of Maharaja Shri Gaj Singh of Jodhpur. Subsequently, in the year 1970 during settlement survey Narendra Singh filed an application before the Assistant Land Records Officer, Jodhpur, that his father Col. Mohan Singh retained 59 Bighas and 10 Biswas of land in his personal cultivation and gave him the rest of the land for his maintenance and so he caused a well to be dug in the land for irrigation and installed an electric motor on it. Therefore, the land in his possession may be separately entered in the record of rights in his name. The Assistant Land Records Officer, Jodhpur, thereupon, made a detailed enquiry into the matter and after considering the replies of the Tehsildar Jodhpur, representing the State Government and of Maharaja Gaj Singh of Jodhpur, came to a conclusion that Col. Mohan Singh and his son Narendra Singh were tenants of Khudkasht and were in separate possession of their lands in accordance with their internal settlement or arrangement. Consequently, he passed an order on July 26, 1970, that necessary corrections to this effect may be made in the Parcha Khatedari, and, Parcha Lagan may be given to both accordingly. In consequence of this order, out of the land comprised in Khasra No. 4 situated in village Bicharli, 256 Bighas of land was entered in the name of Narendra Singh and the rest about 59 Bighas and 10 Biswas of land was shown in cultivatory possession of his father Col. Mohan Singh. The Collector Jodhpur, thereupon, issued a notice to Narendra Singh also under Section 9A of the Act calling upon the latter to hand over possession of 256 Bighas and 10 Biswas of land to the former within 10 days. Narendra Singh also, therefore, prayed for issuance of an appropriate writ, or order for quashing the notice marked Annexure P. 4 given to him by the Collector, Jodhpur, and for restraining the non-petitioners from taking over possession of his land in Khasra No. 4 of which he is a Khatedar tenant.

9. The petitioners in both the writ petitions put in their affidavits and produced several documents in support of their cases. The writ petitions filed by Col. Mohan Singh and Narendra Singh were admitted by this Court on December 1, 1975 and December 3, 1975, respectively and notices were issued to the non-petitioners Nos. 1 & 2. On behalf of non-petitioner the replies to the writ petitions were filed by the Government Advocate. The reply to the writ petition filed by Col. Mohan Singh was that the petitioner was not personally cultivating the land in question since 1951 and the record delivered by Maharaja of Jodhpur land-owner under Rule 9 of the Rajasthan Land Reforms and Acquisition of Land Reforms and Acquisition of Land Owners Estate Rules, 1964, hereinafter referred to as the Rules, on November, 16, 1966, does not show the petitioner as a lessee. It was further admitted that the settlement and survey of village Bicharli in which the land in question is situated was carried out in the year 1968 and the petitioner Col. Mohan Singh applied for correction of entries and that the Assistant Settlement Officer delivered judgment marked Annexure 2 but the judgment was illegal and without jurisdiction and so no steps were taken by the State Government to get it set aside. In short, the plea raised on behalf of the non-petitioners in reply was that the petitioner Col. Mohan Singh did not acquire any Khatedari rights in the land under controversy under Sub-section (1) of Section 6 of the Act and the land vested in the State Government and the Collector, Jodhpur, was authorised under the law to issue to the petitioner a notice under Section 9A of the Act requiring the latter to deliver possession of the land to him. It was further urged that he petitioner has an alternative and efficacious remedy under the Rajasthan Tenancy Act, 1955, which he did not avail of and so his writ petition is liable to be dismissed on this ground alone. Mr. J.C. Agrawal, Deputy Secretary to the Government of Rajasthan and Officer Incharge of the case put in his affidavit in support of the contents of his reply.

10. Likewwise the reply in the writ petition filed by Narendra Singh was that there was nothing in the revenue record that Narendra Singh petitioner has been in possession of land eomprised in Khasra No. 4 measuring 256 Bighas as a tenant of Khud Kasht either on account of himself or through his father since 1951. The non-petitioners further denied that the land was leased out to the petitioner or his father for 10 years and, thereafter, the lease was extended further for a period of three years excluding the land known as 'Kacholia Beria'. In short, the plea of the non-petitioners was that neither the petitioner nor his father was a tenant of Khud Kasht at the commencement of the Act and so they did not acquire Khatedari rights therein. The mere fact that settlement parcha of Samvat year 2021 was granted to the petitioner in respect of the land under controversy on the basis of any transfer made after the commencement of the Act does not confer any right on the petitioner to hold the land as a tenant of Khud Kasht and the Collector, Jodhpur, was authorised to issue a notice to the petitioner calling upon the latter to deliver possession of the land to the former. It was further urged that the petitioner never deposited the land revenue as a tenant of Khud Kashat in respect of the land in question and as the settlement in village Bicharli in which the land in question is situated started in Samvat Year 2024, the Settlement Officer had no jurisdiction to cause any entry to be made relating to the possession of the petitioner prior to Samvat year 2024. It was also stated in the reply that the petitioner has alternative and efficacious remedy of getting his grievance redressed before competent revenue authority and so his writ petition is liable to be dismissed on this ground only. In support of the reply to the writ petition of Narendra Singh, Shri R.S. Dhariwal, Additional Collector, Jodhpur, put in his affidavit and produced some documents marked Annexures R. 1 and R. 2.

11. I have carefully gone through the record of both the writ petitions and heard Mr. J.P. Joshi, learned Counsel for the petitioners and Mr. M.D. Purohit, Additional Govt. Advocate, for the non-petitioners. At the outset, I may observe that the Rajasthan Land Reforms and Acquisition of Land Owners Estates Act, 1963, received the assent of the President of India on April 6, 1964, and it came into force at once in the whole of the State of Rajasthan. It was an Act to provide for the acquisition of estates of land owners and for other measures of land reforms and in consequence thereof to amend certain other Acts. This Act was subsequently, amended by the Rajasthan State Legislature vide Rajasthan Land Reforms and Acquisition of Land Owners Estates (Amendment) Act, 1975, i.e. Act No. 15 of 1975, hereinafter referred to as Act No. 15 of 1975. Sub-section (1) of Section 6 of the Act lays down that every person who at the commencement of this Act, is or is entered in the revenue records as a tenant or a tenant of Khud Kasht, but not as a sub-tenant of any land forming part of an estate; shall be deemed to be the Khatedar tenant of such land holding from the land owner of the estate, provided he had not become a Khatedar tenant thereof previously to such commencement by virtue of any law or otherwise. There is a proviso added to Sub-section (1) of Section 6 but the proviso is not applicable to the instant case, as the land under controversy is not situated in Gang Canal, Bhakra, Chambal, Jawai or Rajasthan Canal Project area, and does not belong to any of the categories specified in Section 16 of the Rajasthan Tenancy Act, 1955. After the commencement of the Act, the State Government issued a notification No. F. (29)A/60 dated August 11, 1964, published in the Rajasthan Raj Patra Part IV (c) Ordinary dated August 13, 1964, by which first day of September, 1964, was appointed as the date for the acquisition and vesting in the State Government the estates of all land-owners situated anywhere in Rajasthan. As from the date of vesting of any estate, the right, title and interest of the land owner and every other person claiming through him in his estate stood acquired and vested in the Government free from all encumbrances and all rights, title and interests created in or over the estate by the land owner or his predecessor-in-interest stood ceased and determined as against the Government by virtue of Section 8 of the Act as amended upto date.

12. The pertinent question that arises for determination in these two writ petitions, therefore, is whether at the commencement of the Act, i.e. April 6, 1964, the petitioners were or were entered in the revenue records as tenants or tenants of Khudkasht of the land in question forming part of the estate of the land-owner Maharaja Gaj Singh of Jodhpur, because if they were or were entered in the revenue records as tenants or tenants of Khud Kasht but not as sub-tenants of land under controversy at the commencement of the Act they would be deemed to be the Khatedar tenants of such land holding from the land owner of the estate under Sub-section (1) of Section 6 of the Act.

13. As stated earlier, the petitioners claim to have been in possession of the land as tenants of Khud Kasht at the commencement of the Act while the non-petitioners denied their such claims and contended that the right, title and interest of the land owner, i.e. Maharaja Gaj Singh of Jodhpur in the land owner in question stands vested in the State Government free from all the encumbrances as from the date of vesting of his estate, which is September 1, 1964. It has, therefore, to be ascertained whether the land in question measuring about 316 Bighas was leased out to Col. Mohan Singh by Maharaja Gaj Singh of Jodhpur for 10 years, i.e. from April 1, 1951 to March 31, 1961, on an annual premium of Rs. 3800/- payable before 31st October of each year to the lessor at his office. The petitioners have relied upon lease-deed (marked Annexure-1) dated April 28, 1952, in writ petition No. 1858 of 1975 filed by Col. Mohan Singh. From a bare perusal of this lease deed it appears that on April 28, 1952, there was an agreement between Col. Mohan Singh and the Controller of House Hold to his Highness the Maharaja of Jodhpur, lessor, for the lease of 'Kacholia Beria' and the adjoining land under controversy measuring about 300 Bighas situated on the South West corner of the 'Beria' and belonging to the Maharaja of Jodhpur on the following terms and conditions:

1. That the lessee has agreed to take on lease and the lessor agreed to give on lease the Kacholia Beria and the adjoining land measuring about 30 Bighas on the south west corner of Beria belonging to the said lessor for a period of 10 years, i.e. from 1st April, 1951 to 31st March, 1961, on an annual premium of Rs. 3800/-, (Rupees three thousand eight hundred only) payable before 31st of October of each year to the lessor at his office.

2. that the lessee will have invariably to make the agreed annual premium without any default and he will have no right to withhold or postpone the payment of annual payment on the ground of famine or failure of rains or any other ground;

3. the lessee undertakes to bear the expenses of the maintenance of entire fencing water pipe lines. This will be separate from the annual premium paid by him and in no case will be deductible from the annual premium.

4. the lessee also undertakes to bear the expenses incurred on watch and ward, i.e. the pay of the chowkidars etc;

5. the lessee further undertakes not to cut green trees;

6. the lessee will have no right to transfer or sublet the leassed property to any other party. In case of breach of this stipulation the lease will be liable to forfeiture;

7. the lessee will have right to take the natural products like long and pala and will have also right to cut died plants;

8. The lessee will efficiently maintain the Beria.

This agreement was signed by both lessor and lessee in the presence of Manohar Singh attesting witness. This lease deed was for a term exceeding one year and reserving an yearly rent. It was a lease for agricultural purpose but it was not a registered lease deed. A tenancy in respect of an agricultural land could be granted by an oral agreement but if an instrument was executed then it must be registered under Section 17(1)(d) of the Registration, Act. Hence the lease-deed being not registered becomes inadmissible under Section 49 of the Registration Act, although agricultural leases are excepted from the operation of Sections 106 to 116 of the Transfer of Property Act. But in spite of the fact that the lease deed has not been registered, the petitioners are entitled to refer to it for the purposes of explaining that Col. Mohan Singh was let into possession of the disputed land by Maharaja Gaj Singh of Jodhpur since April 1, 1951. An unregistered lease deed can be used to prove the nature and the character of possession of any person over the land under the proviso to Section 49 of the Registration Act. In this view of the matter, it can be safely held that Col. Mohan Singh was inducted into possession of the land in question by the land owner, i.e. by Maharaja Gaj Singh of Jodhpur since April 1, 1951. The petitioners have relied upon a cash receipt marked Annexure 4 also which shows that the land in question situated on the south western corner of 'Kacholia Beria' continued in the possession of Col. Mohan Singh for three years since April 1, 1961. This is a receipt for Rs. 900/-, which was paid by Col. Mohan Singh to the Controller of House Hold, Jodhpur, on account of a temporary contract relating to the land in question for three years.

14. The next question that remains to be decided is whether Col. Mohan Singh was in possession of the land in question as a tenant of the land owner i.e. Maharaja Gaj Singh of Jodhpur at the commencement of the Act, i.e. on April 6, 1964, A tenant as defined in Clause (43) of Section 5 of the Rajasthan Tenancy Act is a person by whom rent is payable. To express it in other words, he must be in possession of the land with some title and must be under an obligation to pay rent. For creation of tenancy, it is necessary that rent is paid or is payable by the tenant in terms of the contract. Without such contract no tenancy can come into existence. The expression 'by whom rent is payable' used in the definition of the word 'tenant' contained in Clause (43) of Section 5 of the Rajasthan Tenancy Act includes a person who does not pay rent but may be liable to pay rent if and when, it is assessed upon him and he cannot be permitted to shirk this liability by saying that some one else has cultivated the land.

15. Mr. M.D. Purohit, Additional Government Advocate, relied upon extracts of Khasra Girdawari pertaining to Samvat years 2018, 2019, 2020 and 2021 of village Bicharli wherein the land in dispute measuring 307 Bighas and 9 Biswa and 9 Bighas and 16 Biswas, total 317 Bighas and 5 Biswas is situated, and contended on the strength of the entries made therein that Col. Mohan Singh was not a tenant at the commencement of the Act, i.e. on April 6, 1964 as he was recorded as a trespasser over the disputed land in the aforesaid Samvat years. It was further urged by him that Col. Mohan Singh, in view of the entries in the revenue records, cannot claim status of a tenant of the land owner, i.e. Maharaja Gaj Singh of Jodhpur.

16. I have carefully gone through the entries made in the extracts of Khasra Girdawari and found the contention of Mr. M.D. Purohit, Additional Government Advocate, wholly untenable. In Samvat year 2018 the land measuring 307 Bighas and 11 Biswas was shown in possession of Col. Mohan Singh. It is further shown that in 130 Bighas and 7 Biswas out of this land wheat crops were raised and the rest of the land measuring 177 Bighas and 4 Biswas remained vacant in the possession of Col. Mohan Singh. In Samvat year 2019 this land was again shown in the cultivation of Col. Mohan Singh, but he was recorded as a trespasser in Kharif as well as in Rabi. Likewise, in Samvat year 2020 also this land was shown to have been cultivated by Col. Mohan Singh as a trespasser. In Samvat year 2021 Bajra and Moth crops were shown to have been cultivated in 307 Bighas and 11 Biswas of th''s land and in the remaining 9 Bighas and 16. Biswas of land there was Bajra crop only. The name of the cultivator was not recorded, because after Samvat year 2020, no name of the cultivator was required to be mentioned by the Patwari in the record of the Khasra Girdawari by the Government unless some person other then the previous cultivator had cultivated the land. Hence, it is evident from the record of the Khasra Girdawari that in Samvat year 2021 Col. Mohan Singh had been in cultivatory possession of the land under controversy. No importance can be attached to the word 'Atikramani' i.e. trespasser used by the Patwari in these entries of Khasra Girdwari of Samvat year 2019 and 2020 for the simple reason that in Samvat year 2018 Col. Mohan Singh was not recorded as a trespasser over this land. There is another reason to hold that the word 'Atikramani' was wrongly mentioned in these entries, because in the column Nos. 5 and 6 pertaining to land owner and the tenant respectively the Patwari had mentioned Sarkar i.e. Government. It is not disputed before me that prior to April 6, 1964, on which date the Act came into force, Maharaja Gaj Singh was the land owner of this entire land and the State Government could not be shown as land owner in column No. 5 of the Khasra Girdawari. Likewise, it is not the case of the State Government that the land in dispute was cultivated by it in Samvat years 2018, 2019, 2020 and 2021. Therefore the State Government, i.e. Sarkar could not have been shown as a tenant of this land in column No. 6 of the Khasra Girdawari. It will also not be out of place to mention that Maharaja Gaj Singh of Jodhpur, who was the land owner of this entire land, prior to April 6, 1964. nowhere and never stated that Col. Mohan Singh was a cultivator of the land in question as a tenant of Maharaja Gaj Singh of Jodhpur at the commencement of the Act and he was wrongly recorded as a trespasser in Samvat years 2019, 2020 and 2021.

17. The above fact is borne out also by the judgment of the Assistant Land Records Officer, Jodhpur, dated May 25, 1970, marked Annexure P. 1 in S.B. Civil Writ Petition No. 1874 of 1974, the relevant extract thereof is quoted below:

izkFkZuk i= ntZ jftLVj fd;k tkdj izkFkhZx.k dks lcwr is'k djus ds vkns'k fn;s x;s izkFkhZx.k us vius izkFkZuk i= dh iqf'V es fgt gkbusl tks/kiqj ds gkml gksYM dUVksyj dk i= fnukad 28&3&70 tks ,Dl ih gSA is'k fd;k tks 'kkfey i=koyh gS ftles mUgksus izkFkhZx.k dh mtjknkjh dks eatwj fd;k o tkfgj fd;k fd ;g tehu izkFkhZx.k dh gh gS ;g tehu izkFkhZx.k ds uke ntZ dj nh tk;s rks ges dksbZ vkifRr ugh gSA

blds vfrfjDr izkFkhZx.k us blh Hkwfe ds lEcU/k es jsosU;w vihykaV vksFkjsVh chdkdsdj dk btykyl dk QSlyk fnukad 18&4&63 dh izfrfyfi is'k dh tks 'kkfey i=koyh gS& rglhynkj tks/kiqj ftudks Hkh bl lEcU/k es ikVhZ cuk;k Fkk vius fyf[kr tckc es mDr Hkwfe fgp gkbusl dh fuft lEifRr gksuk tkfgj djrs gSA ekSTkwnk dCtk dk'r izkFkhZx.k dk gksuk cryk;k gS vr% bl Hkwfe ij rglhy dksbZ mtj ,srjkt ugh gS A

From a bare reading of this judgment Annexure P. I it is obvious that the Tehsildar, Jodhpur, representing the State Government was a party to this case, besides the Controller of House Hold representing Maharaja Gaj Singh of Jodhpur. The Tehsildar, Jodhpur, in response to the notice gave a written reply in this case on April 2, 1970, a true copy of which is on the record and is marked Rule 1. In the reply, it was admitted by the Tehsildar that No. 1 Mohan Singh is in the possession of the land which is recorded as the property of His Highness of Jodhpur. Likewise, it is obvious from the extract of the judgment quoted above that the Controller of the House Hold representing the Maharaja of Jodhpur also gave it in writing that the land belongs to the petitioners and it may be entered in their names. Apart from this, the petitioners have filed photostat of Parcha lagans issued by the Settlement Department in which Col. Mohan Singh and his son Narendra Singh were entered as Khatedar tenants in respect of this land since Samvat Years 2021 to 2030. Later on, after the commencement of the Act, Col. Mohan Singh gave 256 Bighas and 10 Biswas of this land to his son Narendra Singh for his maintenance, as is evident from the Judgment of the Assistant Land Records Officer, Jodhpur, dated May 25, 1970, marked Annexure 2. It is further evident from the receipt marked Annexure P, 3 in writ petition No. 1874 of 1975 that Narendra Singh paid rent of 256 Bighas of this land to the revenue authorities from Samvat year 2021 to Samvat year 2029 and likewise Col. Mohan Singh made payment of rent of 59 Bighas and 10 Biswas of his land vide receipts marked Annexures 5 and 6 produced in writ petition No. 1858 of 1975. Hence, it is established that Col. Mohan Singh, petitioner, was a tenant of the entire land under controversy forming part of the estate of Maharaja Gaj Singh of Jodhpur, at the commencement of the Act and, later on, Col. Mohan Singh and his son Narendra Singh were recorded as Khatedar tenants of 59 Bighas and 10 Biswas and 256 Bighas and 10 Biswas respectively, because Col. Mohan Singh allowed his son Narendra Singh to have 256 Bighas and 10 Biswas of this land for his maintenance, In this view of the matter, Col. Mohan Singh and his son Narendra Singh cannot be said to have been claiming this land through the land owner i.e. Maharaja Gaj Singh of Jodhpur, because Col. Mohan Singh was a tenant of this land at the commencement of the Act and, therefore, he must be deemed to be the Khatedar tenant thereof holding from the land owner of the estate under Sub-section (1) of Section 6 of the Act. The Collector Jodhpur, therefore, had no jurisdiction or power to issue notices marked Annexures 8 and Annexure P. 4 to Col. Mohan Singh and Narendra Singh respectively Under Section 9 A of the Act requiring them to deliver the possession of the lands under controversy.

18. Mr. M.D. Purohit, Additional Government Advocate appearing on behalf of the non-petitioners strenuously urged before me that the writ petitions filed by the petitioners are liable to be dismissed on the ground that they have other legal remedy open to them which remedy is equally convenient, effective and adequate and as they have failed to avail themselves thereof without any sufficient cause, this Court should be reluctant to grant them the writs. According to the Additional Government Advocate, the remedy open to the petitioners was to file a suit in the competent revenue court for declaration of their Khatedari rights in the lands under controversy under the provisions of the Rajasthan Tenancy Act.

19. I have considered the above contention and found it untenable. In my opinion, there is no bar to the issue of the writs claimed by the petitioners, merely because they could file a suit for declaration of their Khatedari rights in the lands under dispute before invoking the extraordinary jurisdiction of this Court by way of these writ petitions. The reason is that, as indicated above, the Collector Jodhpur, had no jurisdiction to issue notices to the petitioners under Section 9A of the Act calling upon them to deliver possession of the lands in dispute to him. A suitable writ, direction or order may be issued by this Court preventing authority from acting without jurisdiction and in manifest violation of statutory provisions inspite of the existence of alternative remedy, as such action may cause undue harassment, Apart from this, the alternative remedy suggested by the Additional Government Advocate in these cases was not equally effective and satisfactory for the purpose of meeting the ends of justice, as no suit for declaration of Khatedari rights can be instituted by the petitioners against the State Government or the Collector until the expiration of two months next after notice in writing was delivered to them. If the petitioners had resorted to this alternative remedy they would have been ousted from the lands in their possession before they could get interim relief because even under Sub-section (2) of Section 80 C.P.C. the Court is not empowered to grant relief in the suit whether interim or otherwise except after giving to the Government or to the Collector a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. Consequently, I am of the view that the alternative remedy suggested by the Additional Government Advocate was inadequate and this Court is not deprived of its discretion to issue the writs in the particular circumstances of these cases.

20. Consequently, both the writ petitions are accepted and the notices Annexures 8 and Annexure P. 4 issued to Col. Mohan Singh and his son Narendra Singh respectively by the Collector, Jodhpur, under Section 9A of the Act are quashed and the non-petitioners are restrained from recovering possession of the lands in dispute from the petitioners Under Section 9A of the Rajasthan Land Reforms and Acquisition of Land Owners Estates Act, 1964. In the circumstances of the case, there shall be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //