Posted On by &filed under High Court, Rajasthan High Court.


Rajasthan High Court
Naval Kishore vs Bhourilal & Ors. on 11 October, 2000
Bench: G Sharma


ORDER

(1). This is an appeal filed under Section 76 of the Rajasthan Land Revenue Act against the judgment of Divisional Commissioner Jaipur dated 5.4.2000 passed in appeal No. 5/2000 arising out of the facts that one Ramchander was original Khatedar of the lands under consideration. He mortgaged the land to Land Development Bank. Jaipur for obtaining loan. Since he failed to reply the loan therefore in turn the land in question was put to auction and in auction proceedings the land was purchased by the present application on 16.1.84. Consequently mutation was sanctioned by Assistant Settlement Officer on 9.8.89. This mutation No. 13/1 dated 9.8.89 was sought to be cancelled through Settlement Commissioner by way of forwarding the reference to the Board of Revenue and the said reference after hearing the parties was dismissed by the court on 29.9.99 and the mutation dated 9.8.89 was maintained. On the other side when original khatedar Ramchander expired mutation No.2 on 24.12.93 was sanctioned and the present appellants No. 1 to 4 were entered a his heirs by the Naib Tehsildar. Subsequently present respondent No.1 to 4 who are legal heirs of deceased Ramchander sold through registered sale deed new khasra No. 705 to 707 measuring 0.41 hactare to the extent of its half share to the present respondent No.6 and 7 on 16.9.95 On the basis of this sale deed another mutation No. 20 on 16.4.96 was sanctioned in favour of so called purchasers present respondent No.6 to 7 by the Naib Tehsildar. Besides this one half share out of khasra No.140 area O.32 hactare was also sold to respondent No.8 on 26.12.95 through registered sale deed. Mutation No.14 dated 1.1.96 was also sanctioned by the Naib Tehsildar on this basis. Since the land of Ramchander was already auctioned by the Bank in view of the nonpayment of loan raised by him therefore all these sale deeds and mutations were, it is alleged illegal. Against these mutations an appeal was preferred to Divisional Commissioner Jaipur by the present appellant which was dismissed on 5.4.2000. Hence the present second appeal.

(2). I have heard the learned counsel for the respective parties and perused the record.

(3). After examination of the submission made by the rival parties. I am of the view that since it is admitted fact in this case that the land in question
measuring 11.19 bigha was originally in the Khatedari of Ramchander son of Buxa Mina. He mortgaged the land in favour of Co-operative Development Bank Jaipur and mutation to this effect was also sanctioned by way of mutation No. 13/1 on 8.6.89. Later on the loan was not paid and the Co-operative Bank in the process of law auctioned the land in favour of present appellant on 9.8.89. Since it is admitted position of law that under Section 100 of the Rajasthan Co- operative Societies Act the Bank is free to auction the mortgaged land under Rule 92 read with Section 107 of the said Act therefore auction purchaser who-so-ever it be can take it. Under the circumstances such a transfer or sale which is made by public auction does not come under the ambit of violation of Section 42. Since it is legally permissible to put mortgage land for public auction when the loan is not paid to the Bank therefore it is clear in due process of law and such sale by way of auction does not attract provisions of Section 42 of the Rajasthan Tenancy Act. In view of these facts the reference was rejected by the Board of Revenue on 29.9.99. Notwithstang-ing with above facts when mortgagor Ramchander died mutation No.2 was sanctioned in favour on his heirs on 24.12.93 which was certainly illegal and by taking this advantage of illegal mutation heirs of Ramchander sold lands in part first to the present respondent No.6 and 7 on 16.9.95. Mutation of which was sanctioned on 16.4.96 i.e. mutation No.20 and remaining half share was sold to present respondent No.8 on 26.12.95. Mutation of which was sanctioned as No. 14 dated 1.1.96. It is strange to state that when appellant preferred an appeal to impeach these mutation the Divisional Commissioner dismissed the appeal on the ground that such mutation after the death of deceased Ramchander can be sanctioned in favour of his heirs. Here it is worthwhile to mention that when the deceased Ramchander had already mortgaged the property in his lifetime to Co-operative Development Bank and for non- payment of the loan to Bank auctioned the property through public auction and the purchaser had been given possession and mutations as aforesaid sanction in his favour. Then as per provisions of Transfer of Property Act there remains no land with Ramchander even before his death. When there is no land left by Ramchander no question arises to sanction mutation with respect to this land in favour of his heirs the present respondent No.1 to 4. It is clear case of defrauding the authorities which is again clear case of legal dishonestly. When the facts have come to the notice of the Divisional Commissioner he has been placed to observe that as per previous order of the Board of Revenue which was passed in the reference proceedings on 29.9.99 in reference case LR/682/97 the party is free to proceed: Under the circumstances there is no question in any way to infringe the public policy. Similarly the Board of Revenue in another case decided by learned Member Shri Jagat Singhji in the revision case No. LR/117/99/Bhilwara Devilal vs. Smt. Dali decided on 17.4.2000 (1), propounded the same view that when the land was auctioned by the Bank in non-payment of the Bank dues provisions of Section 42 do not apply and no question arises to infrings public policy.

(4). In view of the above facts and circumstances and the reasons indicated above I have no option but to accept the appeal and set aside the impugned judgment dated 5.4.2000 including mutation No.2 dt.24.12.93, mutation No.20 dt. 16.4.93 as well as mutation No. 14 dt. 1.1.96 are hereby quashed.

(5). Pronounced in open court.


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