[2026:RJ-JP:33100] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 4631/2000 CNR: RJHC020258702000 | URN: CW / 8192U / 2000 1. Madho Lal S/o Ram Chandra Dhakar (deceased) through legal representatives : 1/1. Smt. Janaki Bai w/o late Shri Madho Lal, 1/2. Parmanand, 1/3. Dhanraj, both sons of late Shri Mahho lal, residents of Kervalia, Tehsil Atru, Distt. Baran. 1/4. Smt. Kanti Bai D/o late Shri Madho Lal, w/o Shivraj, resident of Katawar, Tehsil Atru, Distt. Baran. ----Plaintiffs/Petitioners Versus 1. State of Rajasthan through Tehsildar, Atru, Distt. Baran. 2. Board of Revenue, Ajmer ----Non-Petitioners 3. Balfa 4. Prabhu Lal, both sons of Kanhaiya Lal Sahar, residents of Kervalia, Tehsil Atru, Distt. Baran ----Defendants/Non-Petitioners 5. Kishan Lal S/o late Shri Madho Lal, resident of Kervalia, Tehsil Atru, Distt. Baran (deceased) through legal representatives : 5/1. Jaganathi Bai w/o Nand Kishore, D/o late Shri Kishan Lal, resident of Khariyaban, Tehsil Chhabra, Distt. Baran. 5/2. Pushpa Bai w/o Badri Lal Dhakar D/o late Shri Kishan Lal, resident of Badora, Tehsil Atru, Distt. Baran. 5/3. Kanti Bai w/o Sriram Dhakar, D/o late Shri Kishan Lal, resident of Dholam, Tehsil Chhipabarod, Distt. Baran. 5/4. Barji Bai w/o Ram Kanwar D/o late Shri Kishan Lal, resident of Nohalya, Post Sakatpura, Tehsil Atru, Distt. Baran. 5/5. Gyarsi w/o Ram Gopal D/o late Shri Kishan Lal, resident of Khariyaban, Tehsil Chhabra, Distt. Baran. 5/6. Latoor Lal S/o late Shri Kishan Lal, resident of Kerwaliya, Post Madpur, Tehsil Atru, Distt. Baran. 6. S.D.O. Atru, Distt. Baran. 7. Revenue Appellate Authority, Kota. ---Proforma Non-Petitioners For Petitioner(s) : Mr. Rahul Tiwari, Adv. For Respondent(s) : Mr. P. P. Mathur, Adv. HON'BLE MR. JUSTICE ANAND SHARMA Judgment [2026:RJ-JP:33100] (2 of 8) [CW-4631/2000] 19/08/2026 1. Laying challenge to judgment dated 22.01.1993 passed by Assistant Collector, Atru as well as judgment dated 17.08.2000 passed by the Board of Revenue, Ajmer (for short 'the Board of Revenue'), this writ petition has been filed by the petitioner and prayer has been made for decreeing the suit filed by the petitioner. 2. Facts stated in the writ petition are that the petitioner filed one suit for declaration of rights and permanent injunction under Sections 88, 89, 188 and 92 of Rajasthan Tenancy Act, 1955 (for the Act of 1955') in respect of land comprising Khasra No.137 and 159 of Village Kervalia, Tehsil Atru, District Baran. It is further stated that erstwhile khatedar of the aforesaid land was one Shri Ram Kishan, who sold 7 Bighas and 1 Biswa from land comprising Khasra No.137 and entire land comprising in Khasra No.159 to respondent Nos.3-Balfa and 4-Prabhu Lal (defendant Nos.2 and 3), for which initially agreement was executed on 30.04.1973 and was later on registered on 01.05.1973. Thereupon, mutation was entered in favour of the respondent Nos.3 and 4 in revenue record. It is the case of the petitioner that petitioners and earlier their father were in continuous possession of land in question for last 25 years, therefore, they have acquired right on the basis of adverse possession over the land in question. The suit was contested by respondent Nos.3 and 4 by way of written statement, in which the contents of plaint were denied. 3. After trying the suit, it was dismissed by the Assistant Collector vide judgment and decree dated 22.01.1993. Feeling aggrieved, the petitioner filed appeal before Revenue Appellate [2026:RJ-JP:33100] (3 of 8) [CW-4631/2000] Authority, Kota. After examining the grounds of the appeal and material on record, the appeal was allowed by the Revenue Appellate Authority vide judgment and decree dated 18.10.1993. Thereafter, the respondent Nos.3 and 4 preferred second appeal before the Board of Revenue under Section 224 of the Act of 1955. The Board of Revenue quashed the judgment and decree passed by the Revenue Appellate Authority and that of trial court was upheld. Simultaneously, directions were also given by Board of Revenue to the petitioner-plaintiff to handover the possession of the suit land to respondent Nos.3 and 4. 4. Learned counsel for the petitioner vehemently argued that jurisdictional error and infirmity has crept in judgment dated 17.08.2000 passed by the Board of Revenue, for the obvious reasons that a perverse findings have been given that the erstwhile khatedar Ram Kishan was a member of Scheduled Tribe, therefore, in the garb of adverse possession, in view of bar created under Section of 42 of the Rajasthan Tenancy Act, khatedari rights cannot be conferred upon the petitioner, who is admittedly not a member of Scheduled Tribe. While arriving at such finding, Board of Revenue has utterly failed to appreciate that caste of erstwhile khatedar Ram Kishan was 'Sahar', which as per the notification issued in Rajasthan, cannot be considered to be a caste falling in Scheduled Tribe. Without there being any cogent evidence, Board of Revenue erroneously assumed that the erstwhile khatedar Ram Kishan was member of ST. 5. It is also argued by learned counsel for the petitioner that the petitioner is in possession of land in question since long and this fact has not been disputed by the respondent Nos.3 and 4 [2026:RJ-JP:33100] (4 of 8) [CW-4631/2000] and since, the possession of the petitioner on the date of filing suit was of more than 12 years, therefore, in view of Article 65 of the Limitation Act, 1963, the petitioner is entitled to claim khatedar rights on the basis of adverse possession. 6. Learned counsel for the petitioner further submits that assuming for a moment that the petitioner failed to establish his case for declaration of khatedari rights, even then, under the circumstances, where there was no counter claim at the behest of respondent Nos.3 and 4, mandatory direction for handing over possession by the petitioner to respondent Nos.3 and 4, in a suit filed by the petitioner, is apparently a direction exceeding in the jurisdiction of the Board of Revenue. On the basis of aforesaid arguments, learned counsel for the petitioner prayed for quashing the judgment and decree dated 17.08.2000 passed by the Board of Revenue and for upholding the judgment and decree passed in favour of the petitioner by Revenue Appellate Authority. 7. Per contra, learned counsel for the respondents opposed the writ petition and submitted that it was petitioner who filed suit for declaration on the basis of adverse possession, therefore, petitioner is required to stand on his own legs so as to prove that the possession was continuous for a period more than 12 years and it was also hostile to the rights and interests of respondent Nos.3 and 4, who are admittedly khatedar of the land in question and their names have also been entered in the revenue record on the basis of a valid registered sale deed. 8. Learned counsel for the respondents submitted that the petitioner-plaintiff rather took contradictory stand with regard to his own possession over the land in dispute. No evidence [2026:RJ-JP:33100] (5 of 8) [CW-4631/2000] whatsoever has been placed on record by the petitioner-plaintiff to prove that possession of land in question was given to the plaintiff by the erstwhile khatedar and rather at some places, he has admitted that possession was handed over by respondent Nos.3 and 4 to the petitioner on 'pati/bata' (shared cultivation). Thus, at the best, claim of petitioner-plaintiff could be of permissive possession and since, the petitioner-plaintiff has utterly failed to prove his possession hostile and against the rights and interests of respondent Nos.3 and 4, by no statutory assumption, the khatedari rights can be conferred upon him on the basis of adverse possession. It is also submitted by learned counsel for the respondents that admittedly, the respondent Nos.3 and 4 are members of Scheduled Tribe and certificate indicating their caste was also placed before Board of Revenue. Under these circumstances, where there is clear evidence on record that possession of the land in question was parted with by respondent Nos.3 and 4, claiming khatedari rights even on the basis of adverse possession would amount to transfer of rights from members of Scheduled Tribe to a person, who is admittedly not a member of Scheduled Tribe, would be in violation of Section 42 of the Rajasthan Tenancy Act. 9. Learned counsel for the respondents further submitted that in the case of Padhiyar Prahladji Chenaji (Deceased) Through LRs. Vs. Maniben Jagmalbhai (Deceased) through LRs & Ors. (Civil Appeal No.1382/2022) decided on 03.03.2022, the Hon'ble Supreme Court has held that once the permanent injunction has been refused to the plaintiff, the defendant cannot be forced to file a separate litigation for claiming ejectment of the [2026:RJ-JP:33100] (6 of 8) [CW-4631/2000] plaintiff. In view of above judgment, as per learned counsel for the respondents, Board of Revenue has committed no mistake whatsoever in giving a direction to the petitioner to handover the possession of land in dispute to the respondents. 10. At the strength of aforesaid arguments, learned counsel for the respondents prayed for dismissal of the writ petition. 11. Having heard rival arguments advanced by learned counsel for the parties and perused the record, this Court finds that principal question for consideration of this Court is that as to whether on the basis of adverse possession, as claimed by the petitioner-plaintiff, khatedari rights can be conferred upon the petitioner-plaintiff, or not. 12. Concept of adverse possession is admittedly based upon pleadings and evidence in support thereof. One, who is claiming adverse possession is required to prove it by producing unimpeachable evidence on record that his possession was continuous for more than 12 years and there was an element of 'animus possidendi' in such possession i.e. the possession was quite open and hostile to the interest and rights of rightful owner. In the instant case, the contradictory stand taken by the petitioner with regard to nature of possession, he has failed to prove adverse possession. Since, he himself has claimed his possession as shared possession, which is undoubtedly, permissive in nature, such possession cannot be declared as adverse possession and khatedari rights on the basis thereupon cannot be conferred upon the petitioner. 13. As regards the findings given by the Board of Revenue, erstwhile Ram Kishan was member of ST, is in considered opinion [2026:RJ-JP:33100] (7 of 8) [CW-4631/2000] of this Court, is irrelevant for the reason that in the case, where petitioner himself has not placed any evidence on record to prove that possession was handed over to the petitioner by erstwhile khatedar and rather it was also admitted that possession was permissive in nature and was permitted by the respondent Nos.3 and 4, therefore, instead of examining caste of erstwhile khatedar Ram Kishan, correct approach would be to consider as to whether respondent Nos.3 and 4 were members of ST or not. On the basis of one certificate placed before the Board of Revenue, a finding has been given that respondent Nos.3 and 4 are members of ST and no material to the contrary has been placed on record by the petitioner-plaintiff. Under these circumstances, where on analysis of material on record it becomes clear that the respondent Nos.3 and 4 are members of ST and admittedly petitioner is not a member of Scheduled Tribe, khatedari rights, even otherwise, cannot be conferred upon the petitioner in view of specific bar contemplated under Section 42 of the Rajasthan Tenancy Act. 14. However, the contention of learned counsel for the petitioner that since, there was no counter claim by the defendants in a suit, therefore, even while dismissing the suit for declaration and permanent injunction filed by the petitioner- plaintiff, no direction could have been given by the Board of Revenue to hand over possession of the land in question to the respondent Nos.3 and 4, in opinion of this Court, merits substance. When the respondent Nos.3 and 4 have come out with the case that the petitioner was having permissive possession, therefore, even if the petitioner is not declared as khatedar and suit filed by the petitioner is rejected, even then, the respondent [2026:RJ-JP:33100] (8 of 8) [CW-4631/2000] Nos.3 and 4 are required to initiate proper legal proceedings for the purpose of claiming possession of the land in question. 15. Learned counsel for the respondents has relied upon the judgment in the case of Padhiyar Prahladji Chenaji (Deceased) Through LRs. (supra), however, bare perusal of the judgment would make it clear that there is no specific finding in the judgment that without there being any counter claim in the suit and while rejecting the suit for declaration and permanent injunction, direction can be given by the Court in favour of the defendants to the extent that plaintiff would hand over the possession of land in question to the defendants. Hence, the judgment relied upon by learned counsel for the respondents is not attracted in the facts and circumstances of the case. 16. For the reasons mentioned hereinabove, the writ petition filed by the petitioner is partly allowed and the directions given by the Board of Revenue, while rejecting the suit for declaration and permanent injunction filed by the petitioner, insofar as it relates to handing over the possession of the land in question to respondent Nos.3 and 4, is hereby quashed and set aside. However, the respondent Nos.3 and 4 shall be at liberty to initiate proper legal proceedings for claiming possession of land in dispute. Judgments and decree passed by the Court below are accordingly modified. Revenue records be also corrected accordingly. 17. Pending application(s), if any, stand(s) disposed of. (ANAND SHARMA),J 1/Jatin