{"id":34587,"date":"2009-11-05T00:00:00","date_gmt":"2009-11-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mukhtiar-vs-state-ors-on-5-november-2009"},"modified":"2015-09-09T05:12:06","modified_gmt":"2015-09-08T23:42:06","slug":"mukhtiar-vs-state-ors-on-5-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mukhtiar-vs-state-ors-on-5-november-2009","title":{"rendered":"Mukhtiar vs State & Ors on 5 November, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Mukhtiar vs State & Ors on 5 November, 2009<\/div>\n
                                                                                      1\n\n          IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN\n                            AT JODHPUR\n\n\n                                   J U D G M E N T\n\n\n                      SPL. APPL. WRIT No. 332 of 2001\n\n                                      MUKHTIAR\n                                         V\/S\n                                    STATE & ORS.\n\n\nDate of Judgment                          :             5.11.2009\n\n\n                                  PRESENT\n                         HON'BLE SHRI N P GUPTA,J.\n                       HON'BLE SHRI GOVIND MATHUR,J.\n\n\nMr. SL JAIN, for the appellant \/ petitioner\nMr. DALIP SINGH RAJVI, for the respondent\n\n\nBY THE COURT : (PER HON'BLE GUPTA,J.)<\/pre>\n
           This appeal has been filed by the unsuccessful writ<\/p>\n
petitioner, seeking to challenge the judgment of the learned<\/p>\n
Single Judge dated 19.3.2001, whereby the writ petition was<\/p>\n
dismissed,      and    the    orders      of    the   Board    of    Revenue      dated<\/p>\n
30.11.1999, Annex.6, and dated 18.4.2000, Annex.8, whereby the<\/p>\n
reference made under Section 232 of the Rajasthan Tenancy Act<\/p>\n
was accepted, and review petition was dismissed, have been<\/p>\n
upheld.\n<\/p>\n<\/p>\n
           The    facts       of    the   case    are,    that      the   petitioner<\/p>\n
Mukhtiar filed the writ petition, alleging inter-alia that one<\/p>\n
Santa Singh was allotted lands in Kila No.6 to 10 measuring 5<\/p>\n
bighas    in    Murabba      No.36      Chak    No.21    PS,   which      lands    were<\/p>\n
mutated    in    the    name       of   Santa    Singh    vide      mutation      dated<\/p>\n
30.10.74. Copy of the passbook has been submitted as Annex.1.
\n                                                                                                2<\/span><\/p>\n
Santa Singh was recorded as Khatedar, who transferred the land<\/p>\n
in the name of the petitioner vide registered sale deed dated<\/p>\n
1.5.73,     copy    whereof           has    been     produced          as     Annex.2.     The<\/p>\n
petitioner claims to be in cultivatory possession of the land<\/p>\n
since 1973 as Khatedar.\n<\/p>\n<\/p>\n
            According            to     the         petitioner,              the     Tehsildar<\/p>\n
Raisinghnagar submitted an application before the Collector<\/p>\n
Sriganganagar for setting aside the allotment dated 15.5.67<\/p>\n
made in favour of Santa Singh, and consequent mutation and<\/p>\n
sale, copy of this application has been produced as Annex.3.<\/p>\n
The   petitioner       submitted            reply   on     11.9.1997,          Annex.4,      and<\/p>\n
Additional Collector vide order dated 28.8.98, Annex.5, made a<\/p>\n
reference      to   the    Board        of    Revenue       for     setting         aside   the<\/p>\n
allotment,     mutation      and       subsequent          sale.    The       petitioner     in<\/p>\n
para 7 has alleged, that this reference was in relation to<\/p>\n
lands, bearing Kila No. 21 to 25 of Chak No.21 PS of Murabba<\/p>\n
No.36,    while     the    lands        belonging          to     the    petitioner,        are<\/p>\n
comprised      in   Kila    No.6       to     10.    The    petitioner             has   further<\/p>\n
alleged, that Board of Revenue set aside the allotment by<\/p>\n
accepting reference, without considering the question that the<\/p>\n
land allotted to Santa Singh was not the land of Gurudwara,<\/p>\n
referred to by the learned Member of the Board of Revenue in<\/p>\n
his   order,    i.e.      Kila    No.21       to    25.     The    lands       belonging     to<\/p>\n
petitioner and Santa Singh are in Kila No.6 to 10, and not in<\/p>\n
Kila No.21 to 25. Lands in Kila No.6 to 10 were never in the<\/p>\n
name of Gurudwara. Thus, the order was claimed to be without<\/p>\n
jurisdiction, void and perverse. This is produced as Annex.6.<\/p>\n
The petitioner then filed a review petition, bringing to the<\/p>\n
notice of the Board of Revenue, that the lands belonging to<\/p>\n
Gurudwara were in Kila No.21 to 25, whereas lands allotted to
\n                                                                            3<\/span><\/p>\n
Santa Singh were in Kila No.6 to 10, which was not Gurudwara’s<\/p>\n
land. Copy of review petition has been produced as Annex.7,<\/p>\n
and it is contended, that the Board of Revenue refused to<\/p>\n
consider the submissions made in the review application, and<\/p>\n
has dismissed the same on the ground, that points raised in<\/p>\n
the review petition are the same, which were argued at the<\/p>\n
time of decision of the reference, and therefore, the review<\/p>\n
application does not lie. Copy of this order has been produced<\/p>\n
as Annex.8. With giving these facts, the orders are challenged<\/p>\n
only on two grounds, first being, that the Board of Revenue<\/p>\n
specifically mentioned in the orders that the lands belonging<\/p>\n
to   Gurudwara   are   situated   in   Kila   No.21   to   25,   but   lands<\/p>\n
belonging to Santa Singh are situated in Kila No.6 to 10,<\/p>\n
thus, lands allotted to Santa Singh could not be said to be<\/p>\n
Gurudwara land, and the lands allotted to Santa Singh were<\/p>\n
recorded as Sivay Chak in the revenue record. Thus, the Board<\/p>\n
of Revenue had no jurisdiction to cancel the allotment made in<\/p>\n
favour of Santa Singh on 15.5.67, on the ground of the land<\/p>\n
being belonging to Gurudwara. The other ground given is, that<\/p>\n
the order passed by the Board of Revenue purports to deprive<\/p>\n
the petitioner from his property without authority of law, and<\/p>\n
offends Article 300A of the Constitution.\n<\/p>\n<\/p>\n
           To put it tersely, the whole challenge to the orders<\/p>\n
of the Board of Revenue, was only on the ground, that the<\/p>\n
lands belonging to Gurudwara were comprised in Kila No. 21 to<\/p>\n
25, while the land allotted to Santa Singh was comprised in<\/p>\n
Kila No.6 to 10, which was sold to the petitioner, and that<\/p>\n
allotment could not be canceled, on the ground of the land<\/p>\n
being belonging to Gurudwara. Then a look at the order-sheets<\/p>\n
of the file of S.B. shows, that the matter was listed on
\n                                                                                                   4<\/span><\/p>\n
12.5.2000 for admission, on which day the learned Single Judge<\/p>\n
expressed the view, that the case is worth remanding, for the<\/p>\n
reason, that the only question involved in the case is the<\/p>\n
dispute      of    identity       of    land     and       nothing      else.     Thus,        Shri<\/p>\n
Dinesh Maheshwari (now an Hon’ble Judge of this Court) was<\/p>\n
directed to accept notice on behalf of the respondents.<\/p>\n
              Originally in the writ petition, four persons were<\/p>\n
impleaded         as    respondents,          being        State,    Board      of       Revenue,<\/p>\n
Additional Collector, and Santa Singh, however, subsequently,<\/p>\n
vide order dated 14.12.2000, on the application of Guru Nanak<\/p>\n
Prabandhak        Committee,        the       said    committee         was     impleaded        as<\/p>\n
party respondent, and vide order dated 12.2.2001 Santa Singh<\/p>\n
was deleted from array of respondents, as he had died, leaving<\/p>\n
no   legal    representatives.             Then       the    matter       was    argued,       and<\/p>\n
ultimately         was    decided        by    the        same     learned      Bench,         vide<\/p>\n
judgment dated 19.3.2001, as noticed above.\n<\/p>\n<\/p>\n
              A reply to the writ petition was filed on behalf of<\/p>\n
respondent No.1 on 14.9.2000. The stand taken therein was,<\/p>\n
that it is incorrect to contend that Santa Singh was allotted<\/p>\n
land.   It    was       pleaded     that      Santa        Singh    was    Granthi        in the<\/p>\n
Gurudwara, and no allotment could have been made in his name.<\/p>\n
The stand taken was, that Santa Singh was recorded only as<\/p>\n
Gair Khatedar, and that too wrongly. Santa Singh was having no<\/p>\n
transferable           right   in      him,    and        sale   deed     dated      1.5.73      is<\/p>\n
wholly inconsequential, void and non-est. In reply to para 5<\/p>\n
it was pleaded, that it seems that the petitioner, although<\/p>\n
aware of the correct facts is simply seeking to take advantage<\/p>\n
of   some     typographical            error.        In    reply    to    para       6    it    was<\/p>\n
pleaded, that it is pertinent to mention that the petitioner
\n                                                                                                5<\/span><\/p>\n
also   could     not    deny     the     basic    facts.        Then      in    para    7    the<\/p>\n
mention of Kila No. 21 to 25 was pleaded to be typographical<\/p>\n
and clerical error, instead of mentioning Kila No.6 to 10,<\/p>\n
however mere technical error cannot over take the substance of<\/p>\n
the matter. It was pleaded that the petitioner was aware of<\/p>\n
the fact that the reference was made on account of Santa Singh<\/p>\n
having    procured       allotment       of    the     land     of     Gurudwara,       which<\/p>\n
could not have been allotted. Then in para 8 it was again<\/p>\n
reiterated       that      the    petitioner         is    only      seeking       to       take<\/p>\n
advantage      of     typographical       error.        Then     while         replying      the<\/p>\n
ground again it was pleaded that land of Kila no.6 to 10 was<\/p>\n
of Gurudwara, Santa Singh has no right over the same, and in<\/p>\n
Murabba       No.36     there     were    25     bighas        of    land,       and     after<\/p>\n
enforcement of Rajasthan Tenancy Act, Gram Sevak Mafidars were<\/p>\n
made the allotment of land in their possession, free of cost,<\/p>\n
and    Gair    Khatedari         mutations       were     made       in    their       favour.<\/p>\n
However    the      land   of    Kila     No.6    to      10   in    this       Murabba      was<\/p>\n
Gurudwara land, the same was not allotted to anybody, however<\/p>\n
an allotment has been made of this land to Santa Singh on<\/p>\n
15.5.67,      which     could      not    have    been         done,      and    thus,      the<\/p>\n
reference has rightly been made, and has rightly been allowed.<\/p>\n
              A rejoinder was filed by the petitioner, to this<\/p>\n
reply, contending, that after execution of sale deed by Santa<\/p>\n
Singh in favour of petitioner, the allotment of land in favour<\/p>\n
of Santa Singh was canceled by order of the Addl. Collector<\/p>\n
dated 25.5.87, for violation of Section 13 of the Colonization<\/p>\n
Act. An appeal was filed by the petitioner, which was allowed,<\/p>\n
and the case was remanded to the Addl. Collector, for deciding<\/p>\n
the matter in the light of Section 13A of the Colonization<\/p>\n
Act. The petitioner deposited an amount of Rs.7500\/- under
\n                                                                                   6<\/span><\/p>\n
Section 13A on 28.12.89 vide challan Annex.10. However, the<\/p>\n
Addl. Collector vide order dated 19.4.95, Annex.11, held that<\/p>\n
the allotment in favour of Santa Singh was made under Section<\/p>\n
193 of the Rajasthan Tenancy Act, and therefore, Colonization<\/p>\n
Act did not apply, he therefore, dropped the proceedings of<\/p>\n
cancellation    of     allotment   in   favour      of    Santa   Singh.    Thus,<\/p>\n
Santa Singh was allotted land as Khatedar vide Annex.11. It<\/p>\n
was then pleaded, that since allotment was made under Section<\/p>\n
193 of Rajasthan Tenancy Act, there was no question of Gair<\/p>\n
Khatedari; rather it was of Khatedari. It was also pleaded<\/p>\n
that it is wrong to contend that petitioner is simply seeking<\/p>\n
to take advantage of typographical error, rather there is no<\/p>\n
typographical error. The application filed by the Tehsildar<\/p>\n
was in relation to lands, which were shown in revenue records<\/p>\n
as Mandir Mafi lands. The kilas shown as Mandir Mafi land were<\/p>\n
Kila No.21 to 25, and in support of this stand, the petitioner<\/p>\n
has produced a copy of the Khatoni of Samvat 2012 to 2015 as<\/p>\n
Annex.12. Then it is pleaded that it is wrong to contend that<\/p>\n
instead of Kila No.6 to 10, Kila No.21 to 25 were wrongly<\/p>\n
mentioned.     It    was   maintained      that   Mandir      Mafi   land       are<\/p>\n
recorded in Kila No.21 to 25, and there is no question of any<\/p>\n
typographical error. It was also maintained that it is wrong<\/p>\n
to   contend    that    land   comprised     in     Kilas     No.6   to    10    is<\/p>\n
Gurudwara land. It is not so recorded.\n<\/p>\n<\/p>\n
          Another set of reply has been filed on behalf of<\/p>\n
newly   added       respondent,    being    Nanak        Gurudwara   Prabandhak<\/p>\n
Committee, and in this reply it is contended, that in Murabba<\/p>\n
No.36 in Chak No.21 PS the allotments were made by State of<\/p>\n
Bikaner as Mafidars in Samvat 1992, and Kila No.1 to 8 was<\/p>\n
allotted to Roda son of Kharga, by caste Chamar. Then Kila
\n                                                                                      7<\/span><\/p>\n
No.9 to 15 was allotted as Mafi Nai (Barber). Then Kila No.16<\/p>\n
to 20 was allotted as Khati (Carpenter) and Kila No.21 to 25<\/p>\n
were allotted as temple. It is then pleaded that since no<\/p>\n
temple was existing there, but a Gurudwara was there in the<\/p>\n
said Chak, the name was transferred in the name of Gurudwara,<\/p>\n
vide order dated 13.4.50, and Shri Jaimel Singh was Granthi on<\/p>\n
behalf of Gurudwara, to look-after the Gurudwara as well as<\/p>\n
land. Copy of the Jamabandi has been produced as Annex.R\/1.<\/p>\n
The    stand   is,   that      after       Jaimel   Singh,       Santa    Singh    was<\/p>\n
appointed as Granthi somewhere in 1956. It is then pleaded<\/p>\n
that in the year 1959, Kilas No.6 to 10 were shown as land of<\/p>\n
Mafi Gurudwara. Annex.R\/2 has been produced in this regard,<\/p>\n
which showed that Kila No.1 to 5 were shown to have been<\/p>\n
allotted to Harnam Singh (Mafi carpenter). Then Kila No.6 to<\/p>\n
10 were shown to be Mafi Gurudwara, temporarily cultivated by<\/p>\n
Wazir Singh. Then Kila No.11 to 17 were in the name of Jamna,<\/p>\n
temporarily cultivated by Banta. Then Kila No.18 to 25 were<\/p>\n
recorded in the name of Mafi Kotwal (Chowkidar), temporarily<\/p>\n
cultivated by Het Ram son of Kashi Ram. It is then pleaded<\/p>\n
that   in   the   year    1965,       on    30.7.65     Santa     Singh    moved    an<\/p>\n
application before the SDO, submitting that he is the granthi<\/p>\n
of Gurudwara and Kilas no.6 to 10 command land was of Mafi<\/p>\n
Gurudwara,     and   since      the        government      was   then     abolishing<\/p>\n
village grams mafi, Khatedari should be given to him. Copy of<\/p>\n
this   application       has   been    produced       as    Annex.R\/3.      Then    on<\/p>\n
4.12.67 the SDO allotted 5 bighas of land to Granthi Santa<\/p>\n
Singh, copy of order is produced as Annex.R\/4. It is submitted<\/p>\n
that significantly in this Annex.R\/4 there is no description<\/p>\n
of bigha scheme having been mentioned, i.e. only 5 bighas and<\/p>\n
Murabba number and chak number have been mentioned. Then it is<\/p>\n
pleaded that Santa Singh moved an application before the SDO
\n                                                                                                  8<\/span><\/p>\n
Raisinghnagar that for Mafi Gurudwara land he was ready to pay<\/p>\n
the market value of the land, and even in this application the<\/p>\n
details   of    Kila       numbers        were     not    given.        The    case       of   the<\/p>\n
answering respondent further is, that the file was pending<\/p>\n
before the SDO for depositing the remaining amount as per<\/p>\n
market value, but then Santa Singh never disclosed to have<\/p>\n
sold the land to the present petitioner. The copies of the<\/p>\n
order-sheets have been produced as Annex.R\/6. It is contended<\/p>\n
that Santa Singh was never given Khatedari rights of the land<\/p>\n
comprised in Kila No.6 to 10, Jamabandies have been produced<\/p>\n
as   Annex.R\/7       and    8.        However,    it     is    then     pleaded      that      the<\/p>\n
answering    respondent           was     constituted          as     Committee,      and      was<\/p>\n
registered      on    28.11.90           vide     Annex.R\/9,          and     the    answering<\/p>\n
respondent       filed            a      complaint            before        the      Tehsildar<\/p>\n
Raisinghnagar, contending that the land on which the present<\/p>\n
petitioner is having illegal possession and title, which is<\/p>\n
void-ab-initio, as the land was of deity and could not be<\/p>\n
transferred. The Tehsildar submitted an application before the<\/p>\n
Collector      for     making           reference        under        Section       232    being<\/p>\n
Annex.3, and accordingly reference was made, and has rightly<\/p>\n
been allowed. Then certain preliminary objections have been<\/p>\n
raised by the answering respondent, viz. that the answering<\/p>\n
respondent      was        not        impleaded     as        party     despite       being      a<\/p>\n
necessary    party,         the       other   objection         raised       was,    that      the<\/p>\n
petitioner has concealed the material facts from this Court,<\/p>\n
the petitioner has not averred, that he is not recorded as<\/p>\n
Khatedar, and thus, he has suppressed the material facts from<\/p>\n
this   Court.    Then       para-wise         reply      has     also       been    submitted,<\/p>\n
contending inter-alia that the land was of Mafi Gurudwara.<\/p>\n
Santa Singh moved application in which it was clearly stated<\/p>\n
that the land was in the name of Mafi Gurudwara, and should be
\n                                                                                              9<\/span><\/p>\n
allotted to him vide Annex.R\/3. Even in the allotment letter,<\/p>\n
description of the land has not been given, and the respondent<\/p>\n
has produced Jamabandi right from 1967 to 1990, in which the<\/p>\n
petitioner as well as Santa Singh was shown as Gair Khatedar.<\/p>\n
It   was    also       pleaded      that     the      petitioner        is      in   illegal<\/p>\n
possession.        Then      the   details       of     the    various       Kilas,     being<\/p>\n
allotted to different persons were given, and it is pleaded<\/p>\n
that though initially Kila No.21 to 25 was in the name of the<\/p>\n
temple, but subsequently at the relevant time it was the mafi<\/p>\n
grant, under village grant, as defined in Section 5(45) of the<\/p>\n
Rajasthan Tenancy Act. In the year 1935 most of the land was<\/p>\n
though     reserved       for      village       grant,       but   the      name    of    the<\/p>\n
Khatedar        was    not    shown,       but     in       Jamabandi     of     1959      the<\/p>\n
description of the whole land was given, which is produced as<\/p>\n
Annex.R\/10. The details as cataloged in the earlier part of<\/p>\n
the reply were reiterated. Then it was pleaded, that this is<\/p>\n
the only land being comprising in Kila No.6 to 10, which was<\/p>\n
shown as Mafi Gurudwara, which was allotted to Santa Singh,<\/p>\n
and Santa Singh himself in his application has also shown the<\/p>\n
land as Mafi Gurudwara land. It was maintained that petitioner<\/p>\n
never raised this question before the Collector, and before<\/p>\n
the Board of Revenue, and that, it is only for the first time<\/p>\n
that the petitioner has raised this question in the revision<\/p>\n
(review)        petition,      which     has     been       dismissed.       There    is    no<\/p>\n
dispute about identity of the land. Parties are ad idem about<\/p>\n
identity of the land. Then it is pleaded that the learned<\/p>\n
Member     of    the   Board       of   Revenue       has     rightly     set    aside     the<\/p>\n
allotment made in favour of Santa Singh, and sale deed in<\/p>\n
favour of petitioner, after considering that the land is of<\/p>\n
deity, and could not be transferred, Santa Singh was not even<\/p>\n
a Khatedar when he transferred the land, and mere mentioning
\n                                                                                    10<\/span><\/p>\n
of Kila No.21 to 25 hardly makes any difference. The allotment<\/p>\n
was made without mentioning of Kila numbers, and in Murabba<\/p>\n
No.36 there was only 5 bighas of land, which was recorded as<\/p>\n
Mafi Gurudwara made in 1935, and this was so mentioned by<\/p>\n
Santa Singh in his application, and that, the petitioner is<\/p>\n
raising   unnecessary         dispute.     Inter-alia        with    this   it    was<\/p>\n
prayed that the writ petition be dismissed.\n<\/p>\n<\/p>\n
            The    petitioner        has   also    then   filed     an   additional<\/p>\n
affidavit,      inter-alia     deposing,       that    the    land    had   been   a<\/p>\n
subject matter of reference before the Addl. Collector in case<\/p>\n
No.11\/83 “State Vs. Santa Singh” under Section 232. This was<\/p>\n
decided in favour of Santa Singh, copy of the order dated<\/p>\n
6.10.94 has been produced as Annex. A. It was alleged that<\/p>\n
land allotted to Santa Singh was in Kila No.6 to 10, Jamabandi<\/p>\n
in this regard has been produced as Annex. B and C, for the<\/p>\n
Samvat Year 2020 to 2023, and 2024 to 2027, respectively. It<\/p>\n
is then deposed that during settlement operations also the<\/p>\n
land of Kila No.6 to 10 was shown in slip dated 20.2.77 in<\/p>\n
name of petitioner, who stepped in the shoes of Santa Singh,<\/p>\n
having purchased the land, this has been produced as Annex. D.<\/p>\n
Then latest Jamabandi of 2056 to 2059 was also produced as<\/p>\n
Annex. E.\n<\/p>\n<\/p>\n
            This is the entire pleading and material available<\/p>\n
on record.\n<\/p>\n<\/p>\n
            A     look   at    the     order      of   the   Collector,      making\n\nreference,      being    Annex.5     shows,    that    Khatedari      rights     were\n\n<\/pre>\n
given to village workers, Gram Sevaks, according to Section<\/p>\n
193, but then, the land which was in the name of temple or
\n                                                                                                11<\/span><\/p>\n
Gurudwara, in that land Khatedari was not granted to pujaris<\/p>\n
or granthis. Those lands continued in the name of temple or<\/p>\n
Gurudwara. It was found by the learned Collector, that the<\/p>\n
land was in the name of Gurudwara, and could be allotted in<\/p>\n
the name of Gurudwara, but not in the name of any individual<\/p>\n
person.       Before    arriving        at     this       conclusion            the     learned<\/p>\n
Collector       considered       the     submissions           made        on     behalf       of<\/p>\n
Gurudwara,       including        the     contention           that        the        land     of<\/p>\n
Gurudwara, Masjid or Mandir could not be allotted to anybody,<\/p>\n
while the contention raised on behalf of the petitioner were<\/p>\n
also considered, wherein it was contended that land was never<\/p>\n
Mafi or Mandir or Gurudwara, rather it was a government land<\/p>\n
and    the    allotting     authority         undertook        complete          inquiry       as<\/p>\n
contemplated by the Rules, and allotments were made on 9.5.67.<\/p>\n
Sanad has been granted, and mutations have been effected in<\/p>\n
the revenue records, then the land has been sold by registered<\/p>\n
sale    deed.    Then     that    being       found       to   be    violative          of    the<\/p>\n
provisions of Colonization Act, action was taken under Section<\/p>\n
13A,    the     petitioner       paid        the     amount       and      the        land    was<\/p>\n
regularized.       Thus    the    present          petitioner        is    continuing          as<\/p>\n
Khatedar, in possession, which cannot be canceled, nor this<\/p>\n
reference, nor can such allotment be challenged. The other<\/p>\n
contention raised was, against the allotment made in favour of<\/p>\n
Santa    Singh,    no     institution         and     state       ever     initiated         any<\/p>\n
proceedings, and the allotment order has become final. Still<\/p>\n
other    contention       raised       was,        that    proceedings           for     making<\/p>\n
reference       were    earlier    initiated,             which     were    dropped          vide<\/p>\n
order    dated    6.10.94,       therefore,          reference        should          not    been<\/p>\n
made.     It is after considering all these submissions that the<\/p>\n
reference was ordered to be made, vide order Annex.5.
\n                                                                                             12<\/span><\/p>\n
             The learned Board of Revenue found, that if the land<\/p>\n
had been recorded in the name of deity, idol or Gurudwara,<\/p>\n
then no one can acquire Khatedari rights, while in the present<\/p>\n
case though the land in question was mafi land, and though<\/p>\n
Santa Singh was a Granthi, but then it was not a personal<\/p>\n
grant, rather it was religious and charitable grant, Khatedari<\/p>\n
rights   could       not    be     given    to   him,     nor       could    the    land    be<\/p>\n
allotted to him. Likewise, Santa Singh was not entitled to<\/p>\n
alienate     the       land      to     Mukhtiar       (the     present         petitioner).<\/p>\n
Consequently        the     reference      was      accepted,       allotment       made   in<\/p>\n
favour of the Santa Singh, and subsequent sale made in favour<\/p>\n
of present petitioner, were found to be non-est, and entries<\/p>\n
in the record of right’s entries were ordered to be corrected.<\/p>\n
             It      is    significant         to    note,       that      in    the   reply\n\nsubmitted      on      behalf      of    the     petitioner         to     the     reference\n\napplication       of      the    Tehsildar,      before       the    learned       Collector\n\n<\/pre>\n
being Annex.4 also, no dispute was raised about identity of<\/p>\n
the land, on the anvil, as sought to be raised before this<\/p>\n
Court, being that the land of Gurudwara was Kila No.6 to 10,<\/p>\n
and the reference application has been made to land comprising<\/p>\n
of Kila No.21 to 25. That apart it is still more significant<\/p>\n
to   note,     that       the    positive      stand      was,      that     the    land    in<\/p>\n
question (\u0906\u0930 \u091c \u091c\u0930 \u092c\u0939\u0938) was no manner a mafi land of Gurudwara,<\/p>\n
rather it was a land allotted to Santa Singh. Then in para 5<\/p>\n
of the reply it was categorically contended, that the land in<\/p>\n
question       was        allotted       after       completing          all       necessary<\/p>\n
proceedings          for        allotment,       and      after       considering          the<\/p>\n
eligibility of Santa Singh to be allotted land, and revenue<\/p>\n
record   was      accordingly         mutated.       It   was     also      pleaded,   that<\/p>\n
Sanad with respect to land in question has been issued on
\n                                                                                           13<\/span><\/p>\n
11.6.93    in    name   of       Santa     Singh.      Thus,      Santa     Singh    became<\/p>\n
Khatedar. Of course in this reply, in additional pleas, it was<\/p>\n
pleaded, that it is wrong to contend that matter did not come<\/p>\n
to the notice earlier, as, earlier also application for making<\/p>\n
reference was filed, which was registered as Case No.11\/83<\/p>\n
“State Vs. Santa Singh” and was dismissed on 6.10.94. Thus the<\/p>\n
present proceedings are hit by the bar of Section 11 CPC; but<\/p>\n
concealing      these      facts,        Tehsildar      filed      this     application,<\/p>\n
which was required to be dismissed.\n<\/p>\n<\/p>\n
                A look at the order of the learned Single Judge<\/p>\n
shows, that the only contention raised before him was, that<\/p>\n
the land in dispute, which was in possession of the petitioner<\/p>\n
had never been allotted to temple or Gurudwara, as the land<\/p>\n
purchased from Santa Singh was in comprised in Kila No.6 to<\/p>\n
10, likewise the land allotted to the temple or the Gurudwara<\/p>\n
was     compromised        in     Kila     no.21     to     25,     thus      the    entire<\/p>\n
proceedings stand vitiated. The next contention raised was,<\/p>\n
that the petitioner had never been served with the show cause<\/p>\n
notice in the reference, in respect of the land comprising<\/p>\n
Kila No.6 to 10, purchased from Santa Singh, and the reference<\/p>\n
was made with respect to land comprising in Kila No.21 to 25,<\/p>\n
which is entirely a different land, and the petitioner has no<\/p>\n
concern with the said land. The other objection raised is,<\/p>\n
that    earlier    also         the    Tehsildar     had       filed   an     application<\/p>\n
before the District Collector to make a reference with respect<\/p>\n
to the same land, which was rejected in 1994, and as that<\/p>\n
order     acquired      finality,          the     second       application         is   not<\/p>\n
maintainable.        The        next     contention       raised       was,    that      the<\/p>\n
petitioner       had    deposited           a    sum      of      Rs.7300\/-         to   get<\/p>\n
regularization of the land in view of the amendment made in
\n                                                                                                14<\/span><\/p>\n
1984 in the Colonization Act, providing that if the land had<\/p>\n
been alienated in violation of the provisions of Rajasthan<\/p>\n
Tenancy    Act,       the     same      could     be   regularized             after    making<\/p>\n
certain payment.\n<\/p>\n<\/p>\n
               On the other hand, the contention raised on behalf<\/p>\n
of the State was, about mention of Kila No.21 to 25 to be<\/p>\n
typographical         mistake,         rather    the   petitioner          knew        it    very<\/p>\n
well,    and    never       raised      this    objection,         either        before       the<\/p>\n
Collector, or before the Board of Revenue, and after meeting<\/p>\n
his    waterloo       before      the    Board,    for      the    first       time     in    the<\/p>\n
review    petition       the      ground     was   taken,         which    was    rejected.<\/p>\n
Significantly in the review petition also it was not contended<\/p>\n
that he had raised this issue earlier, nor is it so contended<\/p>\n
before this Court, that the petitioner had argued it before<\/p>\n
the Board even at the stage of review. The next contention<\/p>\n
raised was, that in para 13 of the rejoinder affidavit, the<\/p>\n
petitioner himself has described the land of temple to be<\/p>\n
comprised in Chak No.PH 29 Square No.36, though there is no<\/p>\n
such    land.    Thus       it    was    demonstrated,           that     it    was     only    a<\/p>\n
typographical mistake, and the parties were fully aware of the<\/p>\n
identification of the land in dispute, and then have gone to<\/p>\n
trial knowing the actual controversy very well, as such, the<\/p>\n
petitioner           cannot       be     permitted          to     succeed         on        such<\/p>\n
technicalities, as the matter is required to be decided on the<\/p>\n
touchstone       of     doctrine        of     prejudice.         The     transaction          of<\/p>\n
allotment       of    land       in    favour     of   Santa       Singh,       which        land<\/p>\n
belonged to Gurudwara, is void, and the order of Board of<\/p>\n
Revenue does not require any interference.\n<\/p>\n<\/p>\n
               The     contention         raised       on    behalf        of      Gurudwara
\n                                                                                        15<\/span><\/p>\n
Prabandhak Committee also was, that the Committee has placed<\/p>\n
reliance on large number of documents, to show that it was the<\/p>\n
land of Gurudwara, which stood transferred to the petitioner,<\/p>\n
and   that   Santa    Singh    had    no     land    other    than      the    land    in<\/p>\n
dispute,     and     that    the     land     allotted       to        Gurudwara      was<\/p>\n
comprising in Kila No. 6 to 10, which had been transferred to<\/p>\n
the   petitioner,     and     therefore,       the    transaction         itself      was<\/p>\n
unenforceable, and in-executable.\n<\/p>\n<\/p>\n
             The learned Single Judge has found, that undoubtedly<\/p>\n
there has been typographical error in the notice given to the<\/p>\n
petitioner by mentioning Kila No.21 to 25 and not Kila No. 6<\/p>\n
to 10. Then it was observed, that the documents on record,<\/p>\n
including    Jamabandies      of     Samvat    Year    2012       to    2015   clearly<\/p>\n
show, that Kila No. 6, 7 and 8 had been given under Section<\/p>\n
193 to one Harnam Singh as a village Kotwal, similarly, Kila<\/p>\n
No. 9 and 10 had been given to one Madu Barber, and Kila No.<\/p>\n
21 to 25 had been shown in the name of temple. Santa Singh<\/p>\n
filed application on 30.7.65 (Annex.R\/4) clearly stating, that<\/p>\n
Kila No. 6 to 10 was existing in the name of Gurudwara, and<\/p>\n
Khatedari      rights       should      be     granted        therein.           Similar<\/p>\n
application was filed by him on 25.6.65, patta was issued on<\/p>\n
25.11.67 in the name of Santa Singh, which does not give any<\/p>\n
description, and simply provides that Khatedari rights were<\/p>\n
given in the land measuring 5 bighas in Chak No.21 PS, rather<\/p>\n
it does not speak of Kila numbers at all. It has also been<\/p>\n
observed, that as the applications had been filed by Santa<\/p>\n
Singh, as granthi, there had been a case of creating khatedari<\/p>\n
rights in favour of Gurudwara. This view has been found to be<\/p>\n
stood   fortified      by   the      application      of     Santa       Singh     dated<\/p>\n
17.7.71 Annex.R\/4\/5, wherein without making reference to any
\n                                                                                             16<\/span><\/p>\n
Kila number, he referred to land of Gurudwara measuirng 5<\/p>\n
bigha, and expressed his willingness to deposit the dues etc.<\/p>\n
He also filed an application on 30.8.72 for the same purpose,<\/p>\n
wherein again it was clearly stated, that the land belonged to<\/p>\n
Gurudwara,    and   on     his      application,        appropriate         orders        were<\/p>\n
passed, and the SDO Raisinghnagar ordered recovery of amount<\/p>\n
as per law in respect of the land measuring 5 bigha situated<\/p>\n
in Chak No.21 PS Murabba N.36, and in this also there was no<\/p>\n
mention of Kila numbers at all. It was then considered, that<\/p>\n
there is a detailed order of competent authority regarding<\/p>\n
deposit of revenue etc., wherein again no Kila numbers have<\/p>\n
been given. Then in Jamabandies of year 1966 to 1970 Santa<\/p>\n
Singh   was   shown       as    a     tenant    of   Kila      No.    6     to      10,    and<\/p>\n
subsequently name of present petitioner.\n<\/p>\n<\/p>\n
           With     concluding          this     the     learned          Single      Judge<\/p>\n
summarized    the        undisputed          position,      which         emerged,          by<\/p>\n
cataloging    in    10    paras,       being,     that    Kila       No.6      to    10    had<\/p>\n
initially been allotted to the Village Kotwal and the Barber,<\/p>\n
and stood in their names, while Kila No. 21 to 25 had been<\/p>\n
shown initially in the name of temple. Then after sometime,<\/p>\n
Kila No. 6 to 10 had been shown in the name of temple, and at<\/p>\n
subsequent stage the same was ultimately entered in the name<\/p>\n
of Gurudwara, and applications had persistently been made by<\/p>\n
Santa Singh for grant of Khatedari rights, wherein he has<\/p>\n
shown to be Granthi of the Gurudwara, and the revenue record<\/p>\n
clearly   spelled        that    he    was     acting    for    and       on   behalf       of<\/p>\n
Gurudwara, and not in his individual capacity. It was also<\/p>\n
found, that while making reference notice was served on the<\/p>\n
petitioner in respect of the Kila No. 21 to 25 and not Kila<\/p>\n
No.6 to 10, however, in reply the petitioner did not take a
\n                                                                         17<\/span><\/p>\n
specific stand, that he had nothing to do with Kila No.21 to<\/p>\n
25 and had purchased the land of Kila No. 6 to 10 from Santa<\/p>\n
Singh,   this   shows,    that   the     petitioner      understood    the<\/p>\n
controversy, and filed the reply in respect of the land in<\/p>\n
dispute. It was also found, that issue of misidentification of<\/p>\n
the land, has never been raised by the petitioner; and for the<\/p>\n
fist time it was taken in the review petition, without stating<\/p>\n
that at the time of hearing the reference, the issue had been<\/p>\n
raised, and it had never been the case of the petitioner, that<\/p>\n
Santa Singh had land other than the land in dispute. With this<\/p>\n
it was noticed, that Santa Singh had already died when notice<\/p>\n
was issued by the District Collector for making the reference,<\/p>\n
but still petitioner impleaded him before this Court, without<\/p>\n
any explanation. Then in review petition, Gurudwara Prabandhak<\/p>\n
Committee was impleaded as respondent, while Santa Singh was<\/p>\n
not   impleaded;   but   then    while    filing   the     present    writ<\/p>\n
petition, Gurudwara Prabandhak Committee was not impleaded,<\/p>\n
and Santa Singh was impleaded, though the committee got itself<\/p>\n
impleaded. Then it was noticed, that the petitioner has not<\/p>\n
raised the ground of misidentification of the land, and it was<\/p>\n
for the first time while filing review application, and that<\/p>\n
too without mentioning in the review application, that such an<\/p>\n
averment had been agitated before the Board, and that it was<\/p>\n
never mentioned anywhere in the petition, that the counsel had<\/p>\n
argued   the    issue    of   misidentification.      Then     regarding<\/p>\n
rejection of earlier application, it was held, that though<\/p>\n
this fact was pleaded, but the petitioner had not produced any<\/p>\n
document before the Courts below, to show that such an order<\/p>\n
had been passed, nor could he submit, that it was a part of<\/p>\n
record before the Courts below. It was also noticed, that<\/p>\n
pleadings in this case had been complete before this Court
\n                                                                                 18<\/span><\/p>\n
much   earlier,    as    the       rejoinder      affidavit    was     filed   on<\/p>\n
11.10.2000, and petitioner did not argue this issue before the<\/p>\n
Board of Revenue at all, and it is on the date of judgment<\/p>\n
rendered by learned Single Judge, that at the time of hearing,<\/p>\n
the petitioner filed the copy of the order, and that the only<\/p>\n
ground raised in the writ petition deals with the question of<\/p>\n
misidentification       of   the    land.   With     this,   after    discussing<\/p>\n
various case-laws, the learned Single Judge, for reasons given<\/p>\n
in the order, did not find any merit in the writ petition. It<\/p>\n
was noticed, that it was argued on behalf of the petitioner,<\/p>\n
that the land has been allotted to Santa Singh individually<\/p>\n
under Section 193 of the Tenancy Act, for rendering services<\/p>\n
as Granthi and therefore, it cannot be treated as that of<\/p>\n
Gurudwara, but then it was found, that this issue has been<\/p>\n
agitated for the first time before this Court, as no such<\/p>\n
averments had been made before the Court below.<\/p>\n
          Then aggrieved of this order the present appeal has<\/p>\n
been filed. This appeal came up for admission on 25.4.2001, on<\/p>\n
which day it was admitted and interim stay was granted, on the<\/p>\n
condition of depositing of mesne profits, and making the order<\/p>\n
peremptory.   Thereafter       the    order    was    modified,      however   the<\/p>\n
time for depositing the mesne profits was extended. Be that as<\/p>\n
it may.\n<\/p>\n<\/p>\n
          The     appeal      came    up    for      hearing   before     us    on<\/p>\n
28.7.2009, which hearing continued on 30.7.2009 and on that<\/p>\n
day learned counsel for the appellant prayed for some time to<\/p>\n
obtain and produce before this Court some more record, to<\/p>\n
satisfy this Court, that as on the date of the appellant’s<\/p>\n
moving application for allotment, Santa Singh was holding the
\n                                                                                 19<\/span><\/p>\n
land of Kila No.6 to 10 or Kila No.21 to 25 in the capacity of<\/p>\n
Granthi Mafidar. The matter was adjourned for two weeks.<\/p>\n
            Then the matter came up on 3.11.2009, on which day<\/p>\n
the   arguments      were    concluded,       and   judgment    was    reserved.<\/p>\n
However, when the judgment was started to be dictated, it was<\/p>\n
felt, that it would be appropriate that the matter should be<\/p>\n
heard again on some aspects, therefore, the matter was got<\/p>\n
listed    in   the    Court      today   in     the   category    of    “TO    BE<\/p>\n
MENTIONED”, but then today, at the request of learned counsel<\/p>\n
for the parties, the matter was reheard at length.<\/p>\n
            Arguing        the   appeal,      learned    counsel       for     the<\/p>\n
appellant read to us the documents Annex.1 to 8 as filed by<\/p>\n
the appellant in the Single Bench. It may be observed, that in<\/p>\n
the review petition, Annex.7, a specific ground was taken,<\/p>\n
that in the reply to the application for making reference it<\/p>\n
was pleaded by the appellant, that land comprised in Kila No.6<\/p>\n
to 10 was allotted to Santa Singh in accordance with law on<\/p>\n
account of land being recorded as Siyav Chak, and that land<\/p>\n
has been sold by Santa Singh to the petitioner. Thereupon we<\/p>\n
called upon the learned counsel for the appellant, to kindly<\/p>\n
point out this stand to be available in the reply Annex.4, and<\/p>\n
after    reading     the    entire   reply,     the   learned    counsel      only<\/p>\n
submitted, that it was pleaded, that land was allotted after<\/p>\n
completing all proceedings for allotment, and after finding<\/p>\n
eligibility of Santa Singh. It appears that, that was the only<\/p>\n
ground raised in course of argument before the learned Board<\/p>\n
of Revenue while arguing the review petition, and probably the<\/p>\n
learned counsel for the petitioner may have been snapped like<\/p>\n
this only. Be that as it may.\n<\/p>\n
                                                                                   20<\/span><\/p>\n
            Then    arguing       the    appeal   learned     counsel     for    the<\/p>\n
appellant   made      various     submissions,       (i)    that    the   land   was<\/p>\n
allotted to Santa Singh after following the due process of<\/p>\n
law, finding Santa Singh to be eligible, Sanad has been issued<\/p>\n
and Khatedari has been conferred way-back in 1993, as such it<\/p>\n
was not open to the learned Collector to make a reference.<\/p>\n
            The second ground taken was, that Santa Singh was a<\/p>\n
Granthi and allotment was made to him under Section 193 of the<\/p>\n
Rajasthan Tenancy Act. The third submission made is, that the<\/p>\n
application for reference is too much belated, as the present<\/p>\n
application     has      been   filed    on   29.11.95      only,    whereas     the<\/p>\n
allotment   was     of    1967.    Learned    counsel      placed    reliance     on<\/p>\n
Division Bench judgment of this Court, in State of Rajasthan<\/p>\n
Vs. Teja & Ors., reported in 2005 (2) WLC 53.\n<\/p>\n<\/p>\n
            The    fourth       submission    made    is,    that    in   view    of<\/p>\n
earlier application filed by Tehsildar for making reference<\/p>\n
having   been      rejected       vide    order   dated      6.10.94,      on    the<\/p>\n
principle of res-judicata, the present application filed by<\/p>\n
the Tehsildar could not be entertained, and reference could<\/p>\n
not be made, much less could it be accepted. Learned counsel<\/p>\n
in this regard placed reliance on the judgments of Hon’ble<\/p>\n
Supreme Court, in Vijaybai & Ors. Vs. Shriram Tukaram & Ors.,<\/p>\n
reported in AIR 1999 SC 431 specially para 8, Hope Plantations<\/p>\n
Ltd. Vs. Taluk Land Board, and in Peermade & Anr. reported in<\/p>\n
1999 (5) SCC 590.\n<\/p>\n<\/p>\n
            Regarding delay, the learned counsel also referred<\/p>\n
to one Division Bench Judgment of this Court in Chail Singh &
\n                                                                                                 21<\/span><\/p>\n
Ors. Vs. State of Rajasthan & Ors., decided on 17.4.2008. Then<\/p>\n
regarding permissibility of allotment of land to granthi under<\/p>\n
Section    193       of    the   Rajasthan          Tenancy          Act,    learned    counsel<\/p>\n
relied upon few unreported judgments of this Court, including<\/p>\n
those in S.B. C.W.P. No.1053\/69 Lal Singh Vs. State, decided<\/p>\n
on    25.11.71,           then     a        photostat      copy        of     the     judgment,<\/p>\n
particulars whereof are not decipherable. The judgment dated<\/p>\n
7.9.73 rendered in bunch of 13 writ petitions led by S.B.<\/p>\n
C.W.P.    No.1603\/71         Surya          Mal   Vs.     State,       the    Division       Bench<\/p>\n
judgment dated 15.10.74, in the appeals filed to challenge the<\/p>\n
aforesaid judgment dated 7.9.73, dismissing the appeals, the<\/p>\n
judgment dated 26.11.90, rendered in S.B. C.W.P. No.1924\/80<\/p>\n
Smt.Shila Vs. State, the judgment dated 22.10.91 rendered in<\/p>\n
S.B. C.W.P. No.1341\/82 Ramprakash Vs. State, another judgment<\/p>\n
in Ratan Singh Vs. State of Raj., reported in 1983 WLN (UC)-1.<\/p>\n
Yet   another        judgment          in     Sawarn      Jeet       Singh    Vs.     State    of<\/p>\n
Rajasthan, reported in 2005(10) RDD 4574 was also relied upon.<\/p>\n
               Learned counsel for the committee relied upon the<\/p>\n
judgment       of    this    Court          in    Savda    &     6    Ors.    Vs.     State    of<\/p>\n
Rajasthan & Ors., reported in 1993(2) WLC (Raj.) 122, and<\/p>\n
submitted,          that    provisions            of    Section         11     CPC     are    not<\/p>\n
applicable to these proceedings, and therefore, the bar of<\/p>\n
res-judicata could not be pressed into service.<\/p>\n
               We have heard learned counsel appearing, and have<\/p>\n
perused the record. It may be observed that nobody appeared on<\/p>\n
behalf    of    the       State,       as    usual.     This     Court       has     often    come<\/p>\n
across such incidents, where despite service, the government<\/p>\n
counsels do not choose to appear, and at times when sum one is<\/p>\n
called, he chooses to disown the matter, on the ground of it
\n                                                                                     22<\/span><\/p>\n
being    not    related     to    his    department,     some    times      we    felt<\/p>\n
constrained to even call the Addl. Advocate General, but then<\/p>\n
that    only    resulted    into       simply   adjournment      of   the    matter,<\/p>\n
obviously      because     of    the    ground,   that   even    Addl.      Advocate<\/p>\n
General is not aware of the matter. Be that as it may.<\/p>\n
               At the outset we are constrained to observe, that<\/p>\n
the way in which the matter has been contested, and the way in<\/p>\n
which contentions were raised at different stages, project a<\/p>\n
very strange picture.\n<\/p>\n<\/p>\n
               To start with, we deal with first two contentions<\/p>\n
together, and would straightway like to observe, that though<\/p>\n
contentions are purportedly raised to be in the alternative,<\/p>\n
but a proper comprehension of the two contentions shows, that<\/p>\n
they are mutually destructive to each other. To elaborate, it<\/p>\n
is one thing to say, that the allotment was made to Santa<\/p>\n
Singh after following the due and prescribed procedure, the<\/p>\n
land being recorded as Siyav chak and finding Santa Singh to<\/p>\n
be the eligible person to be allotted the land. Then it is<\/p>\n
entirely contrary thing to say, that Santa Singh was holding<\/p>\n
the     land    as   a    village       servant    grant    Granthi,        and    on<\/p>\n
discontinuance       of    such    village      services,   by   virtue      of   the<\/p>\n
provisions of Section 193 of the Rajasthan Tenancy Act, Santa<\/p>\n
Singh was conferred Khatedari rights. The matter does not end<\/p>\n
here, inasmuch as, a look at Annex.4 shows, that therein a<\/p>\n
positive stand was taken about the land having been allotted<\/p>\n
to Santa Singh after following the due process and finding him<\/p>\n
to be eligible. Then we asked the learned counsel to show the<\/p>\n
allotment order, and learned counsel made available for our<\/p>\n
perusal the original of communication dated 15.5.67, addressed
\n                                                                           23<\/span><\/p>\n
by the SDO to Santa Singh, informing that vide order dated<\/p>\n
15.5.67, 5 bighas of land in Murabba No.36 Chak No.21 PS has<\/p>\n
been allotted to him on permanent basis. It is not clear from<\/p>\n
this, as to which particular Kilas were allotted, and it is<\/p>\n
also not clear, as to on what basis, and under what provisions<\/p>\n
of law, the allotment was made, i.e. whether in accordance<\/p>\n
with the allotment Rules, or under Section 193. Then a look at<\/p>\n
the documents filed by the Committee-respondent along with its<\/p>\n
reply, specially Annex.R4\/3, 4 and 5 do make it clear, that<\/p>\n
even according to Santa Singh, the land was of mafi Gurudwara,<\/p>\n
and he wanted to be conferred Khatedari rights with respect to<\/p>\n
that land. It is a different story, that in the application<\/p>\n
also Kila numbers were not given, but then these applications<\/p>\n
clearly negative the theory of allotment having been made in<\/p>\n
accordance with rules for allotment, the land being earlier<\/p>\n
SIVAY CHAK RAKBA RAJ, and after Santa Singh having been found<\/p>\n
eligible to be allotted the land. Thus, in our view there is<\/p>\n
no basis for our coming to the conclusion, that allotment was<\/p>\n
made to Santa Singh as a regular allotment, in accordance with<\/p>\n
the rules, after following the prescribed procedure, much less<\/p>\n
after finding Santa Singh to be eligible, and on the ground of<\/p>\n
the land being available for allotment as SIVAY CHAK RAKBA<\/p>\n
RAJ. It is again a different story, that this submission has<\/p>\n
not been made before the Board of Revenue, or in the writ<\/p>\n
petition, nor even at the time of hearing before the learned<\/p>\n
Single Judge. Be that as it may.\n<\/p>\n<\/p>\n
            So far the contention about the land having been<\/p>\n
allotted    under   Section   193     is   concerned,   we   may   gainfully<\/p>\n
reproduce    the    provisions   of    Section   193    of   the   Rajasthan<\/p>\n
Tenancy Act, which read as under:-\n<\/p>\n
                                                                                    24<\/span><\/p>\n
      “193. Disposal of land when services are no longer
\n      required- If the Collector declares that the services
\n      rendered by a village servant are no longer required
\n      such village servant shall become a ‘Khatedar tenant’
\n      of his village service grant and shall be liable to
\n      pay rent accordingly.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
             In the above background we may observe, that Section<\/p>\n
5(45) defines village service grant. Then Section 190, 191 and<\/p>\n
192 make provision for rights of such persons, holding village<\/p>\n
service grant, and consequences of termination of such village<\/p>\n
services, and in this sequence the above referred Section 193<\/p>\n
finds   place.    The     words    used   in    Section      193    being   “of   his<\/p>\n
village servant grant” are of great significance, inasmuch as,<\/p>\n
under Section 193 Khatedari rights can be conferred only with<\/p>\n
respect to the land, which was the village service grant of<\/p>\n
the   person,     who    claims    to    conferment     of    Khatedari     rights,<\/p>\n
whose services have been terminated, and should be belonging<\/p>\n
to a specified category of village servants, which may include<\/p>\n
Ganthi. It is in this view of the matter, that on 30.7.2009<\/p>\n
the learned counsel, sensing the queries of the Court, prayed<\/p>\n
for   time   to   produce       before    the   Court   some       more   record to<\/p>\n
satisfy this Court, that as on the date of moving application<\/p>\n
for   allotment,        Santa    Singh    was   holding       the    land   in    the<\/p>\n
capacity of Granthi mafidar, obviously as the village service<\/p>\n
grant, but then no such document has been produced, rather the<\/p>\n
documents produced by the respondents, and referred to above,<\/p>\n
project an otherwise picture. The matter does not end here,<\/p>\n
inasmuch as, even the petitioner himself has produced million<\/p>\n
dollar document against him, being Annex.12, produced by him<\/p>\n
along with his rejoinder, which is Jamabandi of Samvat Year<\/p>\n
2012 to 2015, and therein it is clearly shown, that the land
\n                                                                                       25<\/span><\/p>\n
of Kila No.1 to 5 was recorded as Mafi Kotwal, then Kila no. 6<\/p>\n
to 10 was recorded as Mafi Nai (Barber), then Kila No.20 was<\/p>\n
recorded as Mafi Tarkhan (Carpenter) and Kila No.21 to 25 was<\/p>\n
recorded as Mafi Mandir Bila Kabja i.e. without possession.<\/p>\n<\/blockquote>\n
This clearly shows, that out of Chak No.21, whichever Kilas<\/p>\n
were standing as village service grant, they were so recorded<\/p>\n
in name of different persons, but Kila No.21 to 25 was not<\/p>\n
recorded as Mafi Granthi, but was recorded as Mafi Mandir.<\/p>\n
This clearly negatives the contention of the appellant, about<\/p>\n
his   being    a     village    service        grant    holder    of    the   land   in<\/p>\n
question, as Granthi, so as to entitle him to lay any claim<\/p>\n
for conferment of Khatedari rights under Section 193. In that<\/p>\n
view of the matter, we are not inclined to accept these two<\/p>\n
contentions.\n<\/p>\n<\/p>\n
              Coming to the question of delay, the judgment in<\/p>\n
Chail Singh’s case does clearly lay down parameters, after<\/p>\n
discussing entire case-law, as to what would be the reasonable<\/p>\n
time for making reference, and in our view, in the totality of<\/p>\n
circumstances,        it     cannot      be    said,    that     the    reference    is<\/p>\n
belated. It is a different story, that before the Board of<\/p>\n
Revenue, or in the writ petition, or even while arguing before<\/p>\n
the learned Single Judge, this contention was not raised on<\/p>\n
the side of the appellant at all.\n<\/p>\n<\/p>\n
              Then    we   come     to    the    last    contention       about     res-\n<\/p>\n
judicata. At the outset, it may be observed, firstly that for<\/p>\n
taking a plea of res-judicata, a proper foundation is required<\/p>\n
to    be   laid,     which     in   the       present    case     did    comprise    of<\/p>\n
production of the application for reference, its reply, and<\/p>\n
order passed thereon, which should have been produced by the
\n                                                                                                          26<\/span><\/p>\n
petitioner along with Annex.4, which could have enabled the<\/p>\n
Collector to find out, as to whether the principles or bar of<\/p>\n
res-judicata are applicable or not. We at this very stage<\/p>\n
clarify, that the judgment in Savda’s case relied upon by Mr.<\/p>\n
Rajvi is not applicable, as that case deals with a different<\/p>\n
situation        altogether,          and        does       not        cover        the     controversy<\/p>\n
involved        in    the    present         case,          about           improper        or   illegal<\/p>\n
allotment        having        been    made,           which       is        sought         to   be     got<\/p>\n
corrected by reference. The broad principles of res-judicata,<\/p>\n
being      based       on    the      Maxim       of        Roman           Jurisprudence         being,<\/p>\n
“interest       reipublicae           ut    sit       finis       litium”,            the    principles<\/p>\n
have to be applied, even in the present proceedings.<\/p>\n
                Then    we     proceed           to    examine,             as   to       whether      even<\/p>\n
without proper foundation having been laid, the bar of res-<\/p>\n
judicata        is    attracted        or    not.           In    this       regard,        a    look    at<\/p>\n
Annex.A, the order dated 6.10.94, produced by the petitioner<\/p>\n
shows,      that       in    that      case,          the        learned         Collector        mainly<\/p>\n
recapitulated the facts and noticed, that the stock argument<\/p>\n
of various lawyers, appearing on behalf of various persons is,<\/p>\n
that the land was not of mafi, but since the land revenue was<\/p>\n
excused,        the     land     was        of    service              of     Gurudwara,         and     in<\/p>\n
consideration          of      such     services,                and        since     services         were<\/p>\n
discontinued, the Khatedari has been conferred in accordance<\/p>\n
with Rules, and therefore, no proceedings can be taken. Then<\/p>\n
it   was    noticed,         that      various          Khatedars             have        assailed      the<\/p>\n
justification of demand of price, on the ground of land being<\/p>\n
given as village servants. After noticing this contention, all<\/p>\n
that has been found is, that in accordance with the circulars<\/p>\n
issued     on    5.6.1965       and        10.5.1966,             the       services        of   village<\/p>\n
servants        were    discontinued,                 and    direction              were     given      for
\n                                                                                          27<\/span><\/p>\n
moving    applications        within      30    days       before     the     SDO       for<\/p>\n
obtaining Khatedari rights, but in absence of any provision<\/p>\n
being made about the price of the land, steps were taken for<\/p>\n
recovering      the    complete      price,     whereupon         the    demand         was<\/p>\n
assailed, and the High Court ultimately ordered not to recover<\/p>\n
the price in case of conferment of Khatedari rights under<\/p>\n
Section 193, rather the only recovery of land revenue should<\/p>\n
be made, and therefore, it was found, that the matter does not<\/p>\n
fall   within    Section      232    of   the       Rajasthan       Tenancy       Act    or<\/p>\n
Section 82 of the Land Revenue Act, as Khatedari rights had<\/p>\n
been conferred free of cost under Section 193, as services of<\/p>\n
the village servants were no more required, and therefore,<\/p>\n
reference was not made. In our view, this judgment cannot be<\/p>\n
said to be operating as res-judicata, because, firstly that<\/p>\n
the case of the appellant was not about allotment having been<\/p>\n
made under Section 193, rather in Annex.4 the positive stand<\/p>\n
was taken to the effect, that the land was recorded as SIVAY<\/p>\n
CHAK   RAKBA    RAJ,    and    was   allotted         in    accordance        with      the<\/p>\n
procedure prescribed for allotment, and after finding Santa<\/p>\n
Singh to be entitled to be allotted land. In that view of the<\/p>\n
matter,   the    question     requiring        to    be    gone   into      was    as to<\/p>\n
whether the allotment was made in accordance with allotment<\/p>\n
rules or not.          The finding recorded is, that the land was<\/p>\n
recorded in the name of Gurudwara, which obviously could not<\/p>\n
be allotted. On the other hand from the order Annex. A it<\/p>\n
appears that the question of permissibility of allotment of<\/p>\n
Gurudwara land to its Granthi was not at all involved before<\/p>\n
the authority. Likewise from perusal of the order Annex. A is<\/p>\n
not clear, as to whether the authority has seen the record<\/p>\n
about land being of Gurudwara, or land being held as village<\/p>\n
service   grant.       From   the    perusal        of     Annex.    A   it       further
\n                                                                                 28<\/span><\/p>\n
transpires, that by passing similar order, a spate of cases<\/p>\n
has   been   decided,    inasmuch    as,      it   is   cyclostyle    proforma,<\/p>\n
wherein columns had been filled in.\n<\/p>\n<\/p>\n
             Then   another    aspect    is    that      the   application     for<\/p>\n
making reference and the reply has not been placed before any<\/p>\n
of the authorities below, or even before the learned Single<\/p>\n
Judge, or before this Court, so as to enable us to comprehend,<\/p>\n
as to what was the controversy involved, and what had been<\/p>\n
decided, so as to probably attract the bar of res-judicata.<\/p>\n
             Then still another aspect of the matter again is,<\/p>\n
that this was not the stand taken by the appellant, either<\/p>\n
before the Board of Revenue, or before the learned Single<\/p>\n
Judge,   that   the     land   was   a   village        service   grant,     which<\/p>\n
question has been decided, and therefore, the allotment could<\/p>\n
not be canceled.\n<\/p>\n<\/p>\n
             Rather as noticed above, in the entire writ petition<\/p>\n
the sole case made out, or the ground raised for assailing the<\/p>\n
orders   was,   that    the    notice    for   reference       was   given   with<\/p>\n
respect to the land comprised in Kila No.21 to 25, and that<\/p>\n
has been set aside, whereas the land allotted to Santa Singh<\/p>\n
comprised of Kila No. 1 to 6, which has been purchased by the<\/p>\n
petitioner, and the petitioner has nothing to do with the land<\/p>\n
comprising Kila No.21 to 25. That controversy also had been<\/p>\n
raised for the first time in the writ petition only, and in<\/p>\n
our view, has rightly been turned down by the learned Single<\/p>\n
Judge. From a collective reading of the entire record, as<\/p>\n
available, would show, that the petitioner has contested the<\/p>\n
litigation consciously knowing well, as to with respect to
\n                                                                                                  29<\/span><\/p>\n
which   land      the    proceedings             had    been     initiated,            and     with<\/p>\n
respect to which land the orders had been passed. Suffice it<\/p>\n
to say, that if the things were as simple as projected by the<\/p>\n
petitioner, that since he has purchased Kila No.1 to 6, while<\/p>\n
in reference, allotment and mutation and sale of Kila No.21 to<\/p>\n
25 has been set aside, in which appellant has nothing to do,<\/p>\n
the appellant would not have even bothered to file a writ<\/p>\n
petition before this Court, much less the present appeal.<\/p>\n
            Over and above all this, all said and done, there is<\/p>\n
yet another aspect of the matter, viz. though not argued, yet<\/p>\n
even if it were to be assumed, for the sake of argument, that<\/p>\n
the doctrine of res-judicata was attracted, still in our view,<\/p>\n
after     going       through        the    entire       material           on    record,       as<\/p>\n
available with us, we have no manner of doubt, that the land<\/p>\n
in question was not held by the appellant as “his village<\/p>\n
service    grant”,       rather       it    was     a   land     recorded         as     land    of<\/p>\n
Gurudwara,       and    it        could    possibly       not    be        allotted      to     the<\/p>\n
petitioner under Section 193, and it is not shown to have been<\/p>\n
allotted    to    him        in    accordance          with    the        otherwise      regular<\/p>\n
process    of     allotment,          as        contended       by        the    appellant      in<\/p>\n
Annex.4. Thus, even without going into the question, as to<\/p>\n
whether    the        land    of     Gurudwara          being        of     deity      could     be<\/p>\n
alienated or not, Santa Singh cannot be said to have acquired<\/p>\n
any right in the land in question, capable of being alienated<\/p>\n
in   favour      of    the        appellant.       Obviously          therefore,         if     any<\/p>\n
interference were to be made in favour of the appellant, on<\/p>\n
the ground of res-judicata, as sought to be contended, it<\/p>\n
would   result        into    restoration          of    another           illegality,         i.e.<\/p>\n
illegal allotment of land in favour of Santa Singh, and its<\/p>\n
alienation      to     appellant.          In    our    view,        as    held     by   learned
\n                                                                                        30<\/span><\/p>\n
Single Judge also, and as consistently held by Hon’ble Supreme<\/p>\n
Court, that where interference under Article 226 jurisdiction<\/p>\n
results into bringing about such a situation of restoration of<\/p>\n
another     illegality,         then   interference              is   required   to    be<\/p>\n
declined. In that view of the matter, we do not feel inclined<\/p>\n
to    interfere    with    the    order       of     the     learned    Single   Judge,<\/p>\n
declining to interfere under Article 226 jurisdiction.<\/p>\n
             Then we come to the bunch of cases relied upon be<\/p>\n
the    learned     counsel      for    the    appellant,          starting    from    Lal<\/p>\n
Singh’s case to Sarvan Jeet Singh’s case. It would suffice to<\/p>\n
say, that in Lal Singh’s case it was not disputed, that the<\/p>\n
person concerned was holding the land as a mafi, in view of<\/p>\n
the services rendered to the general public. Then in other<\/p>\n
cases also various facets have been considered, and in none of<\/p>\n
the judgments it has been held, that the land standing in the<\/p>\n
name of Gurudwara, having been either allotted to, or recorded<\/p>\n
in    the   name   of     Gurudwara,         could      be   a    subject    matter    of<\/p>\n
conferment of Khatedari rights to Granthi, or in favour of<\/p>\n
Granthi under Section 193 of the Rajasthan Tenancy Act. In<\/p>\n
that view of the matter, these judgments also do not help the<\/p>\n
appellant.\n<\/p>\n<\/p>\n
             Thus taking from any stand point, we do not find any<\/p>\n
sufficient ground to interfere in favour of the appellant in<\/p>\n
this appeal. The appeal thus has no force and is dismissed.<\/p>\n
The parties shall bear their own costs. The amount of mesne<\/p>\n
profits as deposited pursuant to the order of this Court dated<\/p>\n
25.4.2001, as modified on 21.5.2002, shall be paid to the<\/p>\n
person,     who    may     be    entitled          to   the      land   in    question,<\/p>\n
consequent       upon    the     dismissal         of    the      present    appeal    of
\n                                                                         31<\/span><\/p>\n
Mukhtiar, with the finding of allotment in favour of Santa<\/p>\n
Singh being bad. If the appellant has not deposited the amount<\/p>\n
of mesne profits for any interregnum period, the same shall be<\/p>\n
recovered   from   the   appellant     by   way    of   attachment,    and<\/p>\n
executing our this order, by the principal civil court of<\/p>\n
concerned   District,    and   after    recovering,     the   amount    be<\/p>\n
disbursed to the person, as ordered above.\n<\/p>\n<\/p>\n
  ( GOVIND MATHUR ),J.                            ( N P GUPTA ),J.\n\n\n\/tarun\/\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Mukhtiar vs State & Ors on 5 November, 2009 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SPL. APPL. WRIT No. 332 of 2001 MUKHTIAR V\/S STATE & ORS. Date of Judgment : 5.11.2009 PRESENT HON’BLE SHRI N P […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-34587","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nMukhtiar vs State & Ors on 5 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mukhtiar-vs-state-ors-on-5-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mukhtiar vs State & Ors on 5 November, 2009 - 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