Judgment:
Sangeet Lodha, J.
1. This writ petition is directed against order dt. 23.06.2006 passed by the Board of Revenue, Rajasthan whereby revision petition preferred by the respondent No. 2 against the order dt. 13.12.2000 passed by the Assistant Collector, Mount Abu in Revenue Suit No. 62/93 has been allowed and consequently, the aforesaid suit filed by the petitioners before the Assistant Collector, Mount Abu has been dismissed as not maintainable.
2. The relevant facts in nutshell are that Shri Adam @ Azam son of Shri Jan Mohammed, the father of petitioners No. 1 to 8, purchased agriculture lands measuring 2 bighas and 16 biswas comprising khasra Nos. 516 and 4 biswas comprising khasra No. 517 from one Shri Hira Koli son of Premaji (the father of the respondent No. 1 Babu) by way of registered sale deed dt. 25.02.1970 and possession thereof was handed over to the petitioners No. 1 to 8. Thereafter, Adam @ Azam transferred the land to the petitioners No. 9 to 11 but since, the mutation in the Revenue Record was continuing in the name of Shri Hira Koli therefore, a power of attorney was executed by Shri Azam in favour of the transferees petitioners No. 9 to 11.
3. The State Government issued notification under Sections 4 and 6 of the Land Acquisition Act, 1894 for acquisition of the lands in question. However, as in the Revenue Record, the name of the respondent No. 2 Babu S/o Hira Koli was entered therefore, in the notification issued as aforesaid, his name was shown as khatedar tenant of the land.
4. The petitioners filed a suit on 18.12.1993 before the Assistant Collector claiming the relief that the petitioners No. 1 to 8 may be declared to be khatedars of the lands in question and the defendants, the State of Rajasthan and the Rajasthan State Industries and Investment Corporation Limited may be restrained from taking possession of the lands from the petitioners. It was further claimed that if the amount of compensation is determined, the same be paid to the petitioners instead of respondent No. 2 herein Shri Babu. It was contended that the caste Koli of the Abu area of Sirohi district has not been included in the list of members of the Scheduled Caste published by notification dt. 21.07.1965 and the Koli has been included in the list of Scheduled Caste in the year 1978 therefore, the transfer of the land by Shri Hira Koli vide sale deed dt. 25.02.1970 is not hit by the provisions of Section 42 of the Rajasthan Tenancy Act, 1955 (in short 'the Act of 1955' hereinafter) and accordingly, it was claimed that the petitioners deserve to be declared khatedars of the land in question. On an application preferred by the petitioners for temporary injunction, the injunction prayed for was granted by the Assistant Collector in their favour vide order dt. 30.03.1995.
5. The respondent No. 2 Shri Babu contested the suit by filing a written statement. The learned Court below framed the issues. Both the parties led their evidence and the matter was fixed for final arguments. However, defendant-respondent No. 2 instead of arguing the case on all the issues insisted for determination of the issue No. 5 relating to maintainability of the suit before the revenue Court as preliminary issue, which relates to the payment of compensation on account of acquisition of the lands. The Court below decided the issue in favour of petitioners and against the respondent No. 2 vide order dt. 13.12.2000, in terms that suit filed by the petitioners is mainly in respect of the question as to who is the khatedar tenant of the suit land, which can only be decided by the revenue Courts.
6. Aggrieved by the aforesaid order dt. 13.12.2000, respondent No. 2 Babu filed a revision petition before the Board of Revenue which has been allowed by the order impugned in this writ petition and while setting aside the aforesaid order of the Assistant Collector dt. 13.12.2000, the suit preferred by the petitioners has been dismissed as not entertainable by the Revenue Court. Hence, this petition.
7. It is contended by the learned Counsel for the petitioners that indisputably the suit was filed by the petitioners in the year 1993 for the declaration of khatedari rights of the petitioners regarding which the Revenue Court has an exclusive jurisdiction in view of the specific bar to the jurisdiction of the civil Court as contained in Section 256 of the Act of 1955. The learned Counsel submitted that the Board of Revenue has seriously erred in holding that since the land was acquired by the RIICO and at the time when the suit was filed on 18.12.1993, the possession was with RIICO, therefore, the Revenue Court has no jurisdiction to entertain the suit. The learned Counsel submitted that the finding recorded as aforesaid is ex facie erroneous inasmuch as the possession of the land in question was not taken by the RIICO from the petitioners as on the date the suit was filed. The learned Counsel submitted that on the date of registration of the sale deed, the petitioners became the tenants of the disputed lands. It is submitted that mutation entries in the Revenue Record are only for fiscal purposes and no right is acquired by mutations only. The learned Counsel submitted that at the time of initiation of land acquisition proceedings, the petitioners were the khatedars of the land in question therefore, the suit filed for declaration of their rights as khatedar tenants was maintainable before the Revenue Court. The learned Counsel submitted that the question as to who will be entitled for the compensation in respect of the land acquired has to be determined on the basis of the tenancy rights and since the petitioners had become the tenants from the date of registration of the sale deed therefore, they were entitled for compensation. It is submitted that the relief for payment of compensation claimed in the suit was only an ancillary relief. The learned Counsel submitted that as a matter of fact the title of the petitioners cannot be disputed and the suit is essentially for declaration of their rights and for effecting entries in the Revenue Record on the basis of the registered sale deed. Accordingly, it is submitted by the learned Counsel that the order impugned passed by the Board of Revenue is ex facie erroneous and contrary to law. The learned Counsel submitted that the suit was at the final stage inasmuch as, both the parties had completed their evidence therefore, the Court below ought to have decided the complete suit instead of deciding issue No. 5 as preliminary issue. The learned Counsel submitted that as a matter of fact, the issue that the caste Koli of the Abu area of Sirohi was not included in the list of Scheduled Caste till the year 1978, stands settled by a Bench decision of this Court in Deep Singh through his legal representative v. State of Rajasthan S.A.W. No. 1258/99, decided vide order dt. 16.04.2009.
8. Per contra, the learned Government Counsel submitted that much prior to the filing of the suit, the lands in question were acquired by the State Government and the possession thereof was taken by the RIICO therefore, the suit preferred by the petitioners for declaration of their khatedari rights was not maintainable before the Revenue Court. The learned Counsel submitted that in view of the provisions of Section 42 of the Act of 1955, the alleged sale of the land in favour of the petitioners was ab initio void and hence the petitioners are not entitled for any relief. The learned Counsel submitted that by virtue of provisions of Section 63 of the Act of 1955, the interest of a tenant in his holding or part thereof shall stand extinguished when the land has been acquired under the Rajasthan Land Acquisition Act, 1953. Accordingly, it is submitted by the learned Counsel that the Board of Revenue has committed no error in holding that the suit preferred by the petitioners was not entertainable by the Court of Assistant Collector, Mount Abu.
9. I have considered the rival submissions and perused the material on record.
10. It is not in dispute that the lands in question were purchased by the father of petitioners No. 1 to 8 by way of registered sale deed from the father of the respondent No. 2 Shri Hira Koli vide registered sale deed dt. 25.02.1970. In the suit filed, the petitioners have inter alia claimed the relief that they may be declared khatedar tenant of the lands in question, on the strength of the registered sale deed dt. 25.02.1970. Obviously, the petitioners shall be entitled to the compensation for the lands acquired if they are held to be khatedar tenant of the lands in question. Thus, essentially the suit preferred by the petitioners before the Revenue Court is with regard to declaration of their khatedari rights over the lands in question w.e.f. 25.02.1970 on the basis of the transfer of the lands made in their favour by the khatedar of the land Shri Hira Koli by way of registered sale deed.
11. Section 256 of the Act of 1955, specifically bars the jurisdiction of the civil Courts for all such matters for which a remedy by way of suit, application, appeal or otherwise is provided under the said Act. Thus, it confers an exclusive jurisdiction on the revenue Courts for decision of the cases of the nature specified in Schedule III of the Act of 1955 which includes the suit for declaration of rights as tenant. It is to be noticed that the petitioners are claiming the tenancy rights over the lands in question on the strength of the registered sale deed w.e.f. 24.02.1970 and therefore, Section 63 of the Act of 1955 which provides that the rights of the tenant shall stand extinguished on account of acquisition of the land in no manner debars the Revenue Court from entertaining the suit preferred for the declaration of their rights which relate to the period anterior to the date of acquisition of the land. Thus, the Board of Revenue has fallen in error in holding that in view of the bar contained under Section 63 of the Act of 1955, the suit preferred by the petitioners for declaration of their khatedari rights was not maintainable before the Revenue Court. Obviously, for determination of the entitlement for compensation, the lis between the parties regarding their khatedari rights has to be determined by the competent Court and therefore, by no stretch of imagination, it can be said that the dispute between the parties is with regard to entitlement of the compensation for the lands acquired and therefore, the question of relegating the petitioners to the remedy of reference under Section 18 of the Land Acquisition Act, 1894 also does not arise. Thus, in considered opinion of this Court, the Assistant Collector, Mount Abu was right in holding that the issue regarding declaration of the khatedari rights can only be decided by the Revenue Court and no other Courts.
12. In view of the discussion above, the order impugned passed by the Board of Revenue setting aside the aforesaid order passed by the Assistant Collector and dismissing the suit preferred by the petitioners as not entertainable by the Revenue Court cannot be sustained.
13. In the result, the writ petition succeeds, it is hereby allowed. The order impugned dt. 23.06.2006 passed by the Board of Revenue is quashed and set aside. The order dt. 13.12.2000 passed by the Assistant Collector, Mount Abu is restored. Consequently, the Revenue Suit No. 62/93 filed by the petitioners shall stand restored to the files of the Court of Assistant Collector, Mount Abu. The Assistant Collector, Mount Abu is directed to decide the suit filed by the petitioners after hearing parties to the suit within a period of two months from the date of this order. Needless to say that the compensation payable on account of acquisition of the land shall not be disbursed to the respondent No. 2 in view of the injunction already granted by the Assistant Collector, Mount Abu vide order dt. 30.03.1995 till the disposal of the suit. No order as to costs.