1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN,

JAIPUR BENCH, JAIPUR

S. B. CIVIL WRIT PETITION NO. _____/2025

Hemraj alias Hema S/o Shri Ballabh, resident of Gainta,

Rajasthan

...PETITIONER/DEFENDANT

VERSUS

1. Ganga Ram S/o Shri Ram Narayan

2. Nemi Chand S/o Shri Ram Narayan

3. Madan Lal S/o Shri Ram Narayan

4. Kanya Bai D/o Shri Ram Narayan

5. Shama Bai D/o Shri Ram Narayan

6. Babu Lal S/o Shri Ram Narayan

7. Jagannathi D/o Shri Ram Narayan

8. Kailash Bai D/o Shri Ram Narayan

All resident of Village Nauta, Tehsil-Pipalda, District-Kota

(Rajasthan)

9. Ramdeva S/o Shri Kanha

10. Jagdish S/o Shri

11. Ram Prasad S/o Shri Kanha

12. Ramwaroop S/o Shri Kanha

13. Hemraj S/o Shri Kanha

14. Dakha Bai D/o Shri Kanha

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15. Kamla Bai D/o Shri Kanha

16. Sugna Bai D/o Shri Kanha

All resident of Village Nauta, Tehsil-Pipalda, District-Kota

(Rajasthan)

17. Shanti Bai D/o Shyoji

18. Kesari Lal S/o Shyoji

19. Rampyari D/o Shri Shyoji

All resident of Village Nauta, Tehsil-Pipalda, District-Kota

(Rajasthan)

20. Heera Bai D/o Shri Kastoor

21. Sampat Bai D/o Shri Kastoor

22. Seema D/o Shri Kastoor

23. Monu D/o Shri Kastoor

24. Girraj Prasad S/o Shyoji

All resident of Village Nauta, Tehsil-Pipalda, District-Kota

(Rajasthan)

...RESPONDENTS/PLAINTIFFS

S. B. CIVIL WRIT PETITION UNDER ARTICLE

226 & 227 OF THE CONSTITUTION OF INDIA

AGAINST IMPUGNED ORDER DATED

20.12.2024 PASSED BY THE PRESIDING

OFFICERS (DIVISION BENCH) - SHRI HEMANT

KUMAR GERA (PRESIDENT), SHRI RAJESH

KUMAR DADIYA (MEMBER), BOARD OF

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REVENUE, AJMER IN APPEAL NO. 3544/2012

AND APPEAL NO. 3545/2012 TITLED "HEMRAJ

Vs. GANGA RAM & OTHERS" FILED BY THE

PETITIONER UNDER SECTION 224 OF

RAJASTHAN TENANCY ACT, 1955 WHEREBY

IMPUGNED ORDER DATED 17.04.2012

PASSED BY REVENUE APPELLATE AUTHORITY,

KOTA IN APPEAL NO. 143/2008 TITLED

"GANGA RAM & OTHERS Vs. HEMRAJ &

OTHERS" AND IN APPEAL NO. 164/2008

TITLED "SHANTI BAI & OTHERS Vs. HEMRAJ &

OTHERS" FILED BY THE RESPONDENTS

UNDER SECTION 223 OF RAJASTHAN

TENANCY ACT, 1955 AGAINST JUDGMENT AND

DECREE DATED 26.07.2008 PASSED BY THE

PRESIDING OFFICER, SHRI KESAR LAL MEENA

(RAS), LEARNED SUB-DIVISIONAL OFFICER,

ITAWA, DISTRICT KOTA IN CIVIL SUIT NO.

97/2001 UNDER SECTION 83, 183, 188 OF

RAJASTHAN TENANCY ACT, 1955 FILED BY

THE PETITIONER, WAS UPHELD;

TO,

THE HON'BLE CHIEF JUSTICE AND HIS OTHER

COMPANION JUDGES OF THE RAJASTHAN HIGH

COURT, JAIPUR BENCH, JAIPUR.

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MAY IT PLEASE YOUR LORDSHIPS:-

The humble Petitioner/Defendant most respectfully carves

leave to submit this Writ petition as under:-

1. That the present petition is filed against the impugned

order dated 20.12.2024 passed by the learned Board of

Revenue, Ajmer whereby Appeal No. 3544/2012 and

Appeal No. 3545/2012 titled "Hemraj Vs. Ganga Ram &

Others" filed by the Petitioner/Defendant (hereinafter

referred to as the "Petitioner") was dismissed and upheld

the impugned order dated 17.04.2012 passed by the

learned Revenue Appellate Authority, Kota. Certified

copies of impugned Orders dated 20.12.2024 and

17.04.2012 are annexed herewith and marked as

Annexure-1(colly.).

2. That the original Respondent/Plaintiff (hereinafter

referred to as the "Respondent") originally filed a Civil

Case No. 23/1986 under section 88, 183, 188 of

Rajasthan Tenancy Act, 1955 titled "Onkari Vs. Hema"

on 22.05.1986 before the Learned Sub-Divisional Officer,

Itawa, District Kota with respect to Khasra No. 365

admeasuring 6 Bigha 4 Biswa and Khasra No. 612

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admeasuring 21 Bigha 17 Biswa situated at Village

Gainta, Tehsil-Pipalda, District-Kota. Admittedly, the land

belongs to Khatedar Krashak Late Amra son of Bhura

Khatik who is allegedly father of Onkari Devi. The

Plaintiff Onkari Devi also contended that the Petitioner

was merely cultivating the aforesaid land on crop

sharing basis. As per the version of the Plaintiff, when in

July, 1985, the Petitioner refused to give share in the

crop to Onkari Devi and claimed himself as Khatedar,

after enquiry it was realized that the Petitioner in

collusion with Patwari and other Government Officials

opened mutation in his name on 12.06.1962 in

compliance of Order dated 22.04.1961 passed by the

Additional Collector Kota. Therefore, the Plaintiff

contended that she is the only claimant and challenged

the Order dated 22.04.1961 passed by the Additional

Collector Kota and mutation entry dated 12.06.1962 in

the aforesaid Suit (23/1986). Copy of Civil Suit dated

22.05.1986 filed before Sub-Divisional Officer Kota is

annexed herewith and marked as Annexure-2.

3. That the Petitioner filed written Reply dated 17.05.1989

stating the true and correct facts before the Learned

Sub-Divisional Officer, Kota and clarified the fact that the

Petitioner came in possession of the suit property during

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the life time of Khatedar Amra S/o Bhura through

Hibnama dated 01.11.1957 as per rituals. Further, the

Plaintiff Onkari Devi is not the sole daughter of Amra S/o

Bhura. Onkari Devi has two other daughters namely

Ramnathi Bai (deceased) and Dhanni Bai (deceased). All

three were living in their matrimonial home after

marriage. The contention of the Plaintiff that she is in

possession of the suit property since inception proves

wrong vide Order dated 06.11.1986 whereby the

Receiver was appointed by the Learned Sub-Divisional

Magistrate, Kota. Therefore, the claim of the Plaintiff that

she used to get share in the crop from the Petitioner

automatically proves false and concocted without any

proof. Moreover, even the house of deceased Amra S/o

Bhura came in possession of the petitioner through

Hibnama dated 07.11.1957. Lastly not even a single

evidence of crop sharing was produced by the Plaintiff

Onkari Devi. Thus, the plea of the plaintiff is palpably

false and is intended only to cover up inordinate delay in

filing the suit. Photocopy of Reply dated 17.05.1989

along with Order dated 06.11.1986 is annexed herewith

and marked as Annexure-3.

4. That the Petitioner filed Application dated 03.04.1991

along with necessary documents including certified copy

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of Order dated 22.04.1961 passed by Additional

Collector Kota, Khasra Girdavari (Samwat 2016-2019)

and (Samwat 2020-2023), Jamabandi (Samwat 2041-

2060), Hibanam (fgckukek) dated 01.11.1957 to call

original records of case titled "State Vs. Amra". Copy of

Application dated 03.04.1991 along with necessary

documents filed before Sub-Divisional Officer Kota is

annexed herewith and marked as Annexure-4.

5. That Onkari Devi expired on 11.03.1993 in Indira Gandhi

Nagar, Kota and the Legal Heirs of Onkari Devi filed

Application dated 23.06.1993 under Order 22 Rule 3 and

Order 22 Rule 9 read with section 151 CPC seeking to

set aside abatement and take the legal heirs of

deceased Onkari Devi on record along with application

for Condonation of delay under section 5 of the

Limitation Act, 1963. Copy of Application dated

23.06.1993 filed by Legal Heirs of deceased Onkari Devi

before the Sub Divisional Magistrate, Kota is annexed

herewith and marked as Annexure-5.

6. That the petitioner filed Reply dated 28.08.1993 to the

aforesaid application stating that the legal heirs of

Onkari Devi had knowledge of the Civil Case since

inception because due to old age of Onkari Devi, her

 8

sons Kesari Lal and Girraj Prasad used to accompany her

during hearing of the proceedings of Civil Case No. 23 of

1986. Copy of Reply dated 28.08.1993 filed by the

Petitioner before Sub Divisional Magistrate Kota is

annexed herewith and marked as Annexure-6.

7. That the contention of the Onkari Devi in the inception

that she is the sole claimant of Amra son of Bhura itself

proven false when the legal heirs of two other deceased

sisters of Onkari Devi namely Ramnathi Bai and Dhanni

Bai filed an Application dated 25.01.2002 before ACM,

Itawa, District Kota in Civil Case No. 97 of 2001. Copy of

Application dated 25.01.2002 is annexed herewith and

marked as Annexure-7.

8. That when all the legal heirs of three daughters namely

Onkari Devi, Ramnathi Bai and Dhanni Bai came on

record. Amended suit under section 88, 183 & 188 was

filed before the Learned Sub Divisional Officer, Kota.

Copy of amended suit filed by the legal heirs of Onkari

Devi, Ramnathi Bai and Dhanni Bai before the learned

Sub Divisional Officer, Kota is annexed herewith and

marked as Annexure-8.

9. That the affidavit as well as cross examination of PW-1,

Kesari Lal son of Shri Shyoji Ram, PW-2, Piru Lal Malviya
 9

son of Shri Hardev Ji Malviya, DW-1, Hema daughter of

Shri Vallabh, DW-2, Tulsi Ram son of Shri Shankar Lal,

DW-3, Ram Prasad son of Shri Kanha, DW-4, Ganga Ram

son of Shri Ram Narayan, DW-5, Kesar Bai daughter of

Shri Dhanna were filed and held between 13.05.2005 to

23.03.2007. Copy of Affidavit as well as cross

examination of PW-1, PW-2, DW-1 to DW-5 are annexed

herewith and marked as Annexure-9 (colly.).

10. That the Learned Sub Divisional Officer, Itawa, District

Kota vide Judgment dated 27.06.2008 dismissed the Civil

Suit No. 23 of 1986 (97 of 2001) and held that the Suit

was filed challenging Order of the Additional Collector,

Kota dated 07.06.1961 and the subsequent order of

Tehsildar Pipalda dated 12.06.1962 after delay of 22

years is beyond limitation period. Thus, the Suit is liable

to be rejected. Copy of Judgment dated 27.06.2008

passed by the SDO, Itawa, District Kota is annexed

herewith and marked as Annexure-10.

11. That the Respondents filed two Appeals namely; 'Ganga

Ram & Others Vs. Hemraj & Others', Appeal No.

143/2008 dated 18.07.2008, 'Shanti Bai & Others Vs.

Hemraj & Others', Appeal No. 164/2008 dated

08.04.2008, respectively before the Revenue Appellate

 10

Authority against the Petitioner. Copy of Appeal dated

08.04.2008 and 18.07.2008 are annexed herewith and

marked as Annexure-11.

12. That the Learned RAA vide common Order dated

17.04.2012 allowed both the appeals (Appeal No. 143 of

2008 and No. 164 of 2008) on the ground that the Gift

Deed on the basis of which the Petitioner was declared

Khatedar is not registered and principle of adverse

possession is not applicable in the present case. On the

contrary, while deciding Issue No.2, the Learned RAA

admitted that the Respondents failed to provide any

evidence and document to prove that the petitioner was

cultivating the suit property on crop sharing basis.

13. That the Petitioner challenged the aforesaid Order dated

17.04.2012 passed by the Learned RAA before the Board

of Revenue, Ajmer in Appeal No. 3544 of 2012 dated

07.05.2012 and No. 3545 of 2012 dated 07.05.2012.

Copy of Appeal no. 3544 of 2012 and Appeal No. 3545 of

2012 both dated 07.05.2012 filed before the Board of

Revenue, Ajmer is annexed herewith and marked as

Annexure-12.
 11

14. That the Board of Revenue upheld the Order dated

17.04.2012 passed by the Learned RAA and rejected

both the aforesaid Appeals filed by the Petitioner vide

impugned common Order dated 20.12.2024.

15. That being aggrieved by the impugned order dated

17.04.2012 passed by the Learned RAA and impugned

Order dated 20.12.2024 passed by Board of Revenue,

Ajmer being final in nature, the only remedy available to

the Petitioner is writ petition under Article 226 and 227

of the Constitution of India, thus the Petitioner files the

instant petition on the following grounds:-

GROUNDS

A. Because, the impugned orders dated 17.04.2012 &

20.12.2024 cannot be legally sustained being

contrary to the provisions of law and material

obtaining on record;

B. Because, admittedly the deceased Plaintiff, Late

Smt. Onkari Devi filed Suit under section 88, 183

and 188 of the Rajasthan Tenancy Act, 1955.

Section 88 of the Act provides that any person

claiming to be a tenant or a co-tenant may sue for

 12

a declaration that he is a tenant or for a

declaration of his share in such joint tenancy.

Section 89 provides that at any time during the

continuance of a tenancy, the tenant or a

landholder other than the State Government may

sue for declaration as to all or any of the matters

enumerated therein. Section 91 provides for a suit

for declaration of the rights and Section 92A

provides for a suit for injunction. Section 183

provides for a suit for ejectment of certain

trespassers and recovery of possession. Section

207 of the said Act provides that all suits and

application of the nature specified in the Third

Schedule appended to the said Act shall be heard

and determined by a revenue court and no court

other than a revenue court shall take cognizance of

any such suit or application or of any suit or

application based on a cause of action in respect of

which any relief could be obtained by means of any

such suit or application. Section 208 provides that

provisions of the Code of Civil Procedure, except

provisions inconsistent with anything in this Act, so

far as the inconsistency extends, the provisions

applicable only to special suits or proceedings

outside the scope of this Act, and provisions

 13

contained in List I of the Fourth Schedule, shall

apply to all suits and proceedings under this Act,

subject to the modifications contained in List II of

the Fourth Schedule. Section 214 of the Rajasthan

Tenancy Act provides for limitation in cases filed

under this Act and it is with reference to this

Section that Third Schedule has been appended to

the Act, which in its clause 23 provides 12 years as

the period of limitation for filing the suit for

ejectment of trespasser from the date when the

cause of action arises. Under Clause 23-A three

years for suit for recovery of possession or for

compensation or for both, from the date of

wrongful ejectment or dispossession takes place or

tenant is prevented from obtained possession of

his holding or any part thereof, which ever may be

later, is provided as the limitation. The suit, which

was filed by the plaintiff in the present case, as

would be evident from the copy of the plaint filed

at Annexure-2 was a combined suit file under

Sections 88, 89, 183 and 188 and in Entry 23, three

years has been prescribed as the period of

limitation for suit for ejectment of trespasser, from

the date when the cause of action arises, i.e. death

of the father of the Plaintiff;

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C. Because, the cause of action arises on the death of

the father of the Plaintiff - Onkari Devi because

firstly, the Plaintiff herself admitted in Para-3 of the

Plaint that since inception she is in possession of

Suit property along with entire house, cattle of her

deceased father, Amra during and after his

lifetime. Secondly, on one hand, the Plaintiff in

Para-6 of the Plaint admitted that when she

enquired with Patwari in 1985, she realized that

the Petitioner is Khatedar of the subject property

while on the other hand, the Plaintiff admitted in

para-1 of the Plaint that she is the sole Khatedar of

her deceased father, Amra son of Bhura agriculture

land. Thus, why no procedure was initiated by the

Plaintiff from 1957 till 1985 to open mutation in her

favour with respect to the suit property being

allegedly sole Khatedar for past 28 years;

D. Because, the deceased Plaintiff in Para-3 of the

Plaint stated as follows: -

";g fd vejk dh e`R;q ds I'pkr~

vkjkth eqruktk gsek izfroknh

ua- ikarh ij oknuh ls dk'r ij ysrk

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jgrk Fkk vkSj okfnuh e`rd

vkSadkjh dh vksj ls gsek

izfroknh mDr tehu dh ikarh ij

dk'r djrk FkkA"

On the contrary, the Learned RAA in the impugned

Order dated 17.04.2012 while deciding Issue No.2

held as follows: -

^^rudh ua0 2 %& vk;k

okfnuh oknxzLr vkjkth dks

gsek izfroknh dks ikarh ij dk'r

dks nsrh Fkh%& bl rudh dks

lkfcr djus dk Hkkj oknhx.k

vihykUV ij Fkk ijUrq

muds }kjk ,slk dksbZ lk{; ,oa

nLrkost izLrqr ugha fd;k gS^

ftlls oknhx.k vihykUV ds

dFkuksa dh iqf"V gksrh gksA

ge v/khuLFk U;k;ky; }kjk ikfjr

mDr rudh ds fu"d"kZ ls lger

gSA^^
 16

Thus, from the above, it is clear that the entire suit

of the deceased Plaintiff Onkari Devi is based on

false and fabricated facts. Even if for the sake of

arguments, it is assumed that the Plaintiff Onkari

Devi is Sole Khatedar and in possession of Suit

property before and after the death of her father

Amra son of Bhura and the petitioner is allegedly

encroacher/trespasser. Then why the Plaintiff did

not initiate procedure to open mutation in her

favour at Tehsildar Office for past 28 years from

1957 to 1985. Resultantly, it clearly shows that the

deceased Plaintiff's Suit was filed after delay of 26

years with clever drafting by stating that the

Plaintiff is in possession of the suit property and

Petitioner is encroacher/trespasser and was

cultivating the suit property on crop sharing basis.

In the present case, the Plaintiff did not reproduce

any evidence of crop sharing with the petitioner so

it is proven that the Plaintiff was not in possession

of the suit property at the time of filing the Civil

Suit under section 88, 183 and 188 of the

Rajasthan Tenancy Act, 1955. Secondly, if the

Plaintiff claims to be in possession of the suit

property then why at the very first place,

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application for appointment of Receiver will be

moved on behalf of the plaintiff.

E. Because, the erroneous findings in impugned

Orders dated 17.04.2012 and 20.12.2024

respectively stated that since the plaintiff had

instituted a Suit under section 88 of the Act of

1955 therefore, the provisions of the limitation

mentioned in Third Schedule of the Rajasthan

Tenancy Act, 1955 are not applicable. On the

contrary, the Board of Revenue Ajmer as well as

the Learned RAA failed to take note of the fact that

The suit, which was filed by the plaintiff in the

present case, as would be evident from the copy of

the plaint filed at Annexure-2 was a combined suit

file under Sections 88, 89, 183 and 188 and in

Entry 23, three years has been prescribed as the

period of limitation for suit for ejectment of

trespasser, from the date when the cause of action

arises since there is no evidence reproduced by the

Plaintiff of crop sharing with the Petitioner,

therefore the cause of action arises on the date of

the death of the father of Plaintiff - Onkari Devi in

the year 1957;

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F. Because, the Board of Revenue Ajmer as well as

the Learned Revenue Appellate Authority while

deciding Issue No.8 gave erroneous finding that

since the Gift Deed by virtue of which the

Petitioner became sole owner of the entire

moveable and immoveable property of

deceased Amra son of Bhura was not registered

and the donor has not admitted the aforesaid

Gift Deed anywhere. On the contrary, even if the

Gift Deed is unregistered and presented before

the Hon'ble Court as evidence, still whenever a

Court comes across a document, which is

required to be stamped, but, which is neither

stamped nor sufficiently stamped, the Court is

bound to impound (seize) the document and

take steps for collection of the duty/deficit duty

payable and also penalty. Thereafter, the said

unregistered Gift Deed can be used in evidence

for collateral purpose. The word 'collateral

purpose' is explained in the decision of the

Supreme Court in K.B. Saha and sons Pvt.

Ltd., v. Development Consultant Limited

wherein the Supreme Court held as follows:

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"A document required by law to be

registered, if unregistered, is

inadmissible as evidence of a

transaction affecting immovable

property, but it may be admitted as

evidence of collateral facts, or for any

collateral purpose that is for any

purpose other than that of creating,

declaring, assigning, limiting or

extinguishing a right to immovable

property."

In the present case, none of the courts asked the

petitioner to deposit the deficit stamp duty

pertaining to Gift Deed and thus, the said Gift Deed

could be used for collateral purpose in evidence by

the Petitioner.

G. Because, the Learned RAA as well as Board of

Revenue Ajmer while deciding Issue No.8 "vk;k

izfroknh dks vejk }kjk fnukad 07-11-

1957 dks fgCckukek }kjk viuh py o

vpy lEifRr ij dCtk ns fn;k Fkk rFkk

mDr fgCckukek ds vk/kkj ij ,dek=

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ekfyd izfroknh gks x;k" held that in order

to declare a Gift Deed valid and legally binding its

registration is mandatory with regard to the

moveable property. Since the Gift Deed in question

is not registered therefore, the aforesaid Issue No.8

was erroneously decided against the Petitioner. On

the contrary, the fact is that admittedly the Suit

property in question is agricultural property.

Therefore, the procedure to transfer the

agricultural property through Gift is given in

Rajasthan Tenancy Act, 1955, which is a complete

code in itself. As per section 63 of the Rajasthan

Tenancy Act, 1955 provided that

"63. Tenancy when extinguished— (1) The

interest of tenant in his holding or a part

thereof as the case may be. shall be

extinguished

(vii) when he sells or makes a gift thereof in

accordance with the provisions of this Act. or"

Thus, the gift made by tenant must follow the

provisions of the Rajasthan Tenancy Act by making

an application before the Collector. It is clear that

for declaring a gift deed of agricultural tenancies

legally valid, the provisions of Rajasthan Tenancy

 21

Act will be applicable while for Urban Tenancies,

the provisions of Transfer of Property Act are

applicable;

H. Because, it is clear that the gift deed by Amra son

of Bhura to the Petitioner is in accordance with

section 42 of the Rajasthan Tenancy Act, 1955.

Admittedly, the suit property was transferred to the

Petitioner being adopted son of Amra son of Bhura

through Gift Deed on 14.01.1957. At that time,

section 42 reads as under: -

Sale or gift--Except with the general

on special permission of the State

Government, no Khatedar tenant shall

have the right to transfer by sale or a

gift his interest in the whole or a part)

of his holding to any person who at

the date of such transfer is already in

possession of land which, together

with the land so transferred will

exceed 90 acres of unirrigated or 30

acres of irrigated land.

Explanation.--If such land is partly

irrigated and partly unirrigated, one

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acre of irrigated land shall for

calculating the area of land for the

purposes of this section, be deemed

to be equivalent to three acres of

unirrigated land."

Thus, the Gift Deed in question is clearly in

accordance with section 42 of the Rajasthan

Tenancy Act, 1955.

I. Because, after amendment in section 42 on

01.05.1964 It may be noted here that the

Rajasthan Tenancy (Amendment) Act No. 12 of

1964, which came into force on 1st May, 1964

introduced the following changes in Section 42 by

Section 3 thereof. Section 3 runs as follows:

"Section 3--Substitution of new section

for Section 42, Rajasthan Act 3 of 1955--

For Section 42 of the principal Act, the

following section shall be substituted,

namely:--

42. General restrictions on sale, gift and

bequest--The sale, gift or bequest by a

Khatedar tenant of his interest in the

whole or part of his holding shall be void,

if-
 23

(a) it is not of a survey number except

when the area of the survey number so

sold, gifted or bequeathed is in excess of

the minimum area prescribed for the

purpose of Sub-section (1) of Section 53,

in which case also the area not

transferred shall not be a fragment :

Provided that this restriction shall not

apply if the area so transferred becomes

merged into a contiguous survey

number:

Provided further that this restriction shall

not apply if the sale, gift or bequest is of

the entire interest of a tenant in the

survey number;

(b) such sale gift or bequest is by a

member of a Scheduled Caste in favour

of a person who is not a member of the

Scheduled Caste, or by a member of a

Scheduled Tribe in favour of a person

who is not a member of the Scheduled

Tribe;

I made by a person enjoying khatedari

rights since before the commencement

of the Act in the project areas referred to

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in the proviso to Sub-section (1) of

Section 15 or in the Rajasthan Canal

area mentioned in Section 15A, and any

transfer by sale or gift made by any such

person after the commencement of the

Rajasthan Tenancy (Amendment)

Ordinance No. 2 of 1960, shall be null

and void."

Thus, from the above it is amply clear that the new

section 42 introduced in the year 1964 has no

retrospective effect. It would suffice to say that

while substituting Section 42, the Legislature took

good care in not making the change to operate

retrospectively. The plain reading of Section 3

would show that the new Section 42 was

substituted in place of the old one with effect from

the date this amended Act came into force namely,

1st May, 1964. This Act also does not seek to

validate the deeming clause appearing in Section 4

of the second Act, which was invalid from the very

date it was introduced, as held above. The

Constitution (Seventeenth Amendment) Act, 1964,

protects the Rajasthan Tenancy Act, 1955 as it

stood on the date the said amendment of the

Constitution of India, came into force.

 25

J. Because, admittedly Amra son of Bhura did not die

intestate therefore section 40 of the Rajasthan

Tenancy Act, 1955 is not applicable. Further, no

applicability of Hindu Succession Act, 1956 arises

as decided on 13.01.1966 by the larger bench of

the Hon'ble Rajasthan High Court in "BHONRA Vs.

GANESH".

17. That, the Petitioner has not filed such other writ Petition

earlier to it before this Hon'ble Court to challenge the

impugned Orders dated 17.04.2012 passed by the

learned RAA, Kota and dated 20.12.2024 passed by the

Board of Revenue, Ajmer.

18. That, the Petitioner has no alternate except approaching

this Hon'ble Court by way of filling the present writ

petition.

19. That, the Petitioner craves leave of this Hon'ble Court to

urge the further an additional grounds at the time of

hearing of this writ petition.

PRAYER
 26

It is, therefore, most humbly prayed that this Writ Petition

may kindly be accepted and allowed and:-

 by issuing appropriate writ, order or direction in the

nature thereof quash and set-aside the impugned

orders dated 17.04.2012 passed by the learned

Revenue Appellate Authority, Kota and dated

20.12.2024 passed by the Board of Revenue, Ajmer

and upheld the Order dated 27.06.2008 passed by the

Learned Sub Divisional Officer, Itawa, District Kota;

 Any other order, direction or relief, which this Hon'ble

High Court may deem fit and proper be passed in

favour of the Petitioner.

Humble Petitioner

JAIPUR:
DATE: [Hemraj]
Through Counsel: -

[HARSH SHARMA]
Advocate
(R-1762/2014)
Mob.: 9602899541
Email: [email protected]
NOTES:-
1. That That no such writ petition has been filed prior to
this.
2. P.F. & Notices will be filed within stipulated time.
3. That pie papers are not available, hence typed on stout
papers.
4. That it is typed by my private steno.
5. That the matter pertains to Jaipur Jurisdiction.
 27

JAIPUR
DATED: COUNSEL FOR THE PETITIONER
 28

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

S. B. CIVIL WRIT PETITION NO.______/2025

Hemraj alias Hema ….Petitioner/Defendant

VERSUS
Ganga Ram & Others ….Respondents/Plaintiffs

AFFIDAVIT IN SUPPORT
OF WRIT PETITION

I, Hemraj alias Hema S/o Shri Ballabh, aged about ___ years,
resident of Gainta, Rajasthan, do hereby take oath and state
as under:-

1. That I am the petitioner in the present writ petition and I

am well conversant with the facts and circumstances of
the case.

2. That the annexed writ petition has been drafted by my

counsel under my instructions and the same has been
drafted by my counsel under instructions and the same
has been read over by me.

3. That the contents of paras of the writ petition are true

and correct to the best of my personal knowledge and
nothing material has been concealed there from

Jaipur
Date: DEPONENT

VERIFICATION
I the above named deponent do hereby verify on oath that the
contents of paras of the affidavit are true and correct to the
best of my knowledge of my personal knowledge and nothing
material has been concealed there from. So, help me GOD.

Jaipur
Date: DEPONENT

Identified by:
 29

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

S. B. CIVIL MISC. STAY APPLICATION NO.____/2025

IN

S. B. CIVIL WRIT PETITION NO. _____/2025

Hemraj alias Hema S/o Shri Ballabh, resident of Gainta,

Rajasthan

...PETITIONER/DEFENDANT

VERSUS

1. Ganga Ram S/o Shri Ram Narayan

2. Nemi Chand S/o Shri Ram Narayan

3. Madan Lal S/o Shri Ram Narayan

4. Kanya Bai D/o Shri Ram Narayan

5. Shama Bai D/o Shri Ram Narayan

6. Babu Lal S/o Shri Ram Narayan

7. Jagannathi D/o Shri Ram Narayan

8. Kailash Bai D/o Shri Ram Narayan

All resident of Village Nauta, Tehsil-Pipalda, District-Kota

(Rajasthan)

9. Ramdeva S/o Shri Kanha

10. Jagdish S/o Shri

11. Ram Prasad S/o Shri Kanha

12. Ramwaroop S/o Shri Kanha

13. Hemraj S/o Shri Kanha

 30

14. Dakha Bai D/o Shri Kanha

15. Kamla Bai D/o Shri Kanha

16. Sugna Bai D/o Shri Kanha

All resident of Village Nauta, Tehsil-Pipalda, District-Kota

(Rajasthan)

17. Shanti Bai D/o Shyoji

18. Kesari Lal S/o Shyoji

19. Rampyari D/o Shri Shyoji

All resident of Village Nauta, Tehsil-Pipalda, District-Kota

(Rajasthan)

20. Heera Bai D/o Shri Kastoor

21. Sampat Bai D/o Shri Kastoor

22. Seema D/o Shri Kastoor

23. Monu D/o Shri Kastoor

24. Girraj Prasad S/o Shyoji

All resident of Village Nauta, Tehsil-Pipalda, District-Kota

(Rajasthan)

...RESPONDENTS/PLAINTIFFS

S. B. CIVIL MISC. STAY APPLICATION

UNDER ARTICLE 226 AND 227 OF THE

CONSTITUTION OF INDIA.

TO,
 31

THE HON’BLE CHIEF JUSTICE AND HIS OTHER

COMPANION JUDGES OF RAJASTHAN HIGH

COURT, BENCH AT JAIPUR.

MAY IT PLEASE YOUR LORDSHIPS:

The humble Applicant/Petitioner, above named, most

respectfully beg to submit as under:-

1. That the Applicant/Petitioner has this day filed the above

titled writ petition, from the facts and grounds
mentioned, therein, the Petitioner has a strong prima
facie case in its favour and there is every hope of
success of the same.

2. That if the effect and operation of the impugned orders

dated 17.04.2012 passed by the learned Revenue
Appellate Authority, Kota and dated 20.12.2024 passed
by the Board of Revenue, Ajmer is not stayed the
Petitioner would suffer irreparable loss and the
respondents are ready to create third party interest in
the suit property.

3. That the balance of conveyance lies in favour of the

Petitioner.

4. That, in the facts and circumstances it would be in the

interest of justice to pass an interim order staying the
effect and operation of the impugned orders dated
17.04.2012 passed by the learned Revenue Appellate
Authority, Kota and dated 20.12.2024 passed by the
Board of Revenue, Ajmer in favour of the Petitioner and
 32

direct the respondents not to create a third party

interest in the suit property.

5. That the other arguments will be urged at the time of

hearing.

PRAYER
It is therefore, most humbly and graciously prayed that this
Hon'ble Court may kindly be pleased to stay the impugned
orders dated 17.04.2012 passed by the learned Revenue
Appellate Authority, Kota and dated 20.12.2024 passed by the
Board of Revenue, Ajmer in favour of the Petitioner and direct
the respondents not to create a third party interest in the suit
property, till the final disposal of the writ petition.

Any other order or direction which this Hon’ble Court deemed

fit and proper be passed in favour of the Humble petitioner.

Humble Applicant/Petitioner

JAIPUR:

DATE: [Hemraj]

Through Counsel: -

[HARSH SHARMA]
Advocate
(R-1762/2014)
Mob.: 9602899541
Email: [email protected]

NOTES:-
 33

1. No such stay application has been filed in the present

case.

2. P.F Notices and extra copies will be filed as per direction.

3. Private typist has typed this stay application on stout

paper since pie papers are not readily available.

4. That the matter pertains to Jaipur Jurisdiction.

COUNSEL FOR THE PETITIONER

 34

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

S. B. CIVIL MISC. STAY APPLICATION NO. _____/2025

IN
S. B. CIVIL WRIT PETITION NO. _____/2025

Hemraj alias Hema ….Petitioner/Defendant

VERSUS
Ganga Ram & Others ….Respondents/Plaintiffs
AFFIDAVIT IN SUPPORT OF
STAY APPLICATION

I, Hemraj alias Hema S/o Shri Ballabh, aged about ___ years,
resident of Gainta, Rajasthan, do hereby take oath and state
as under:-

1. That I am the Petitioner/Applicant in the present case

and I am well conversant with the facts and
circumstances of the case.

2. That the annexed stay application has been drafted by

my counsel under my instructions and the same has
been drafted by my counsel under instructions and the
same has been read over by me.

3. That the contents of Paras of the stay application are

true and correct to the best of my personal knowledge
and nothing material has been concealed there from

Jaipur
Date:
DEPONENT
VERIFICATION
I the above named deponent do hereby verify on oath that the
contents of paras of the affidavit are true and correct to the
best of my knowledge of my personal knowledge and nothing
material has been concealed there from. So, help me GOD.

Jaipur
Date:
DEPONENT
 35

Identified by

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

S. B. CIVIL WRIT PETITION NO. _____/2025

Hemraj alias Hema ….Petitioner/Defendant

VERSUS
Ganga Ram & Others ….Respondents/Plaintiffs

AFFIDAVIT IN SUPPORT

OF DOCUMENTS

I, Hemraj alias Hema S/o Shri Ballabh, aged about ___ years,
resident of Gainta, Rajasthan, do hereby take oath and state
as under:-

1. That I am the petitioner in the present writ petition and

am well conversant with the facts and circumstances of
the case.

2. That the annexed documents marked as Annexure-2 to

12 are true & correct verbatim Photostat copies of their
originals as well as internet printouts, whereas
Annexure-1 are the Certified copies of impugned
Orders dated 20.12.2024 and 17.04.2012.

Jaipur
Date:
DEPONENT
VERIFICATION

I the above named deponent do hereby verify on oath that the

contents of paras of the affidavit are true and correct to the
best of my knowledge of my personal knowledge and nothing
material has been concealed there from. So, help me GOD.

Jaipur
 36

Date:
DEPONENT

Identified by

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

S. B. CIVIL WRIT PETITION NO.______/2025

Hemraj alias Hema ….Petitioner/Defendant

VERSUS
Ganga Ram & Others ….Respondents/Plaintiffs

BRIEF SYNOPSIS

 That the present petition is filed against the impugned order

dated 20.12.2024 passed by the learned Board of Revenue,
Ajmer whereby Appeal No. 3544/2012 and Appeal No.
3545/2012 titled "Hemraj Vs. Ganga Ram & Others" filed by
the Petitioner/Defendant (hereinafter referred to as the
"Petitioner") was dismissed and upheld the impugned order
dated 17.04.2012 passed by the learned Revenue Appellate
Authority, Kota.
 That the original Respondent/Plaintiff (hereinafter referred to
as the "Respondent") originally filed a Civil Case No. 23/1986
under section 88, 183, 188 of Rajasthan Tenancy Act, 1955
titled "Onkari Vs. Hema" on 22.05.1986 before the Learned
Sub-Divisional Officer, Itawa, District Kota with respect to
Khasra No. 365 admeasuring 6 Bigha 4 Biswa and Khasra No.
612 admeasuring 21 Bigha 17 Biswa situated at Village
Gainta, Tehsil-Pipalda, District-Kota. Admittedly, the land
belongs to Khatedar Krashak Late Amra son of Bhura Khatik
who is allegedly father of Onkari Devi. The Plaintiff Onkari
Devi also contended that the Petitioner was merely
cultivating the aforesaid land on crop sharing basis. As per
 37

the version of the Plaintiff, when in July, 1985, the Petitioner

refused to give share in the crop to Onkari Devi and claimed
himself as Khatedar, after enquiry it was realized that the
Petitioner in collusion with Patwari and other Government
Officials opened mutation in his name on 12.06.1962 in
compliance of Order dated 22.04.1961 passed by the
Additional Collector Kota. Therefore, the Plaintiff contended
that she is the only claimant and challenged the Order dated
22.04.1961 passed by the Additional Collector Kota and
mutation entry dated 12.06.1962 in the aforesaid Suit
(23/1986).
 That the Petitioner filed written Reply dated 17.05.1989
stating the true and correct facts before the Learned Sub-
Divisional Officer, Kota and clarified the fact that the
Petitioner came in possession of the suit property during the
life time of Khatedar Amra S/o Bhura through Hibnama dated
01.11.1957 as per rituals. Further, the Plaintiff Onkari Devi is
not the sole daughter of Amra S/o Bhura. Onkari Devi has two
other daughters namely Ramnathi Bai (deceased) and Dhanni
Bai (deceased). All three were living in their matrimonial
home after marriage. The contention of the Plaintiff that she
is in possession of the suit property since inception proves
wrong vide Order dated 06.11.1986 whereby the Receiver
was appointed by the Learned Sub-Divisional Magistrate,
Kota. Therefore, the claim of the Plaintiff that she used to get
share in the crop from the Petitioner automatically proves
false and concocted without any proof. Moreover, even the
house of deceased Amra S/o Bhura came in possession of the
petitioner through Hibnama dated 07.11.1957. Lastly not
even a single evidence of crop sharing was produced by the
Plaintiff Onkari Devi. Thus, the plea of the plaintiff is palpably
false and is intended only to cover up inordinate delay in
filing the suit.
 38

 That the Petitioner filed Application dated 03.04.1991 along

with necessary documents including certified copy of Order
dated 22.04.1961 passed by Additional Collector Kota, Khasra
Girdavari (Samwat 2016-2019) and (Samwat 2020-2023),

Jamabandi (Samwat 2041-2060), Hibanam ( fgckukek)

dated 01.11.1957 to call original records of case titled "State
Vs. Amra".
 That Onkari Devi expired on 11.03.1993 in Indira Gandhi
Nagar, Kota and the Legal Heirs of Onkari Devi filed
Application dated 23.06.1993 under Order 22 Rule 3 and
Order 22 Rule 9 read with section 151 CPC seeking to set
aside abatement and take the legal heirs of deceased Onkari
Devi on record along with application for Condonation of
delay under section 5 of the Limitation Act, 1963.
 That the petitioner filed Reply dated 28.08.1993 to the
aforesaid application stating that the legal heirs of Onkari
Devi had knowledge of the Civil Case since inception because
due to old age of Onkari Devi, her sons Kesari Lal and Girraj
Prasad used to accompany her during hearing of the
proceedings of Civil Case No. 23 of 1986.
 That the contention of the Onkari Devi in the inception that
she is the sole claimant of Amra son of Bhura itself proven
false when the legal heirs of two other deceased sisters of
Onkari Devi namely Ramnathi Bai and Dhanni Bai filed an
Application dated 25.01.2002 before ACM, Itawa, District Kota
in Civil Case No. 97 of 2001.
 That when all the legal heirs of three daughters namely
Onkari Devi, Ramnathi Bai and Dhanni Bai came on record.
Amended suit under section 88, 183 & 188 was filed before
the Learned Sub Divisional Officer, Kota.
 That the affidavit as well as cross examination of PW-1,
Kesari Lal son of Shri Shyoji Ram, PW-2, Piru Lal Malviya son
of Shri Hardev Ji Malviya, DW-1, Hema daughter of Shri
 39

Vallabh, DW-2, Tulsi Ram son of Shri Shankar Lal, DW-3, Ram
Prasad son of Shri Kanha, DW-4, Ganga Ram son of Shri Ram
Narayan, DW-5, Kesar Bai daughter of Shri Dhanna were filed
and held between 13.05.2005 to 23.03.2007.
 That the Learned Sub Divisional Officer, Itawa, District Kota
vide Judgment dated 27.06.2008 dismissed the Civil Suit No.
23 of 1986 (97 of 2001) and held that the Suit was filed
challenging Order of the Additional Collector, Kota dated
07.06.1961 and the subsequent order of Tehsildar Pipalda
dated 12.06.1962 after delay of 22 years is beyond limitation
period. Thus, the Suit is liable to be rejected.
 That the Respondents filed two Appeals namely; 'Ganga Ram
& Others Vs. Hemraj & Others', Appeal No. 143/2008 dated
18.07.2008, 'Shanti Bai & Others Vs. Hemraj & Others',
Appeal No. 164/2008 dated 08.04.2008, respectively before
the Revenue Appellate Authority against the Petitioner.
 That the Learned RAA vide common Order dated 17.04.2012
allowed both the appeals (Appeal No. 143 of 2008 and No.
164 of 2008) on the ground that the Gift Deed on the basis of
which the Petitioner was declared Khatedar is not registered
and principle of adverse possession is not applicable in the
present case. On the contrary, while deciding Issue No.2, the
Learned RAA admitted that the Respondents failed to provide
any evidence and document to prove that the petitioner was
cultivating the suit property on crop sharing basis.
 That the Petitioner challenged the aforesaid Order dated
17.04.2012 passed by the Learned RAA before the Board of
Revenue, Ajmer in Appeal No. 3544 of 2012 dated
07.05.2012 and No. 3545 of 2012 dated 07.05.2012
 That the Board of Revenue upheld the Order dated
17.04.2012 passed by the Learned RAA and rejected both the
aforesaid Appeals filed by the Petitioner vide impugned
common Order dated 20.12.2024
 40

Hence, the Petitioner submits this writ petition.

COUNSEL FOR THE PETITIONER

 41

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAHN

AT JAIPUR BENCH, JAIPUR.

S. B. CIVIL WRIT PETITION NO.______/2025

Hemraj alias Hema ….Petitioner/Defendant

VERSUS
Ganga Ram & Others ….Respondents/Plaintiffs

INDEX

S. Particulars Pg.
No No.
.
1. Memo of Writ Petition

2. Affidavit in support of Writ Petition

3. Stay Application

4. Affidavit in support of Stay Application

5. DOCUMENTS:

Annexure-1: Certified copies of impugned Orders

dated 20.12.2024 and 17.04.2012

Annexure-2: Copy of Civil Suit dated 22.05.1986

filed before Sub-Divisional Officer Kota

Annexure-3: Photocopy of Reply dated

17.05.1989 along with Order dated 06.11.1986

Annexure-4: Copy of Application dated

03.04.1991 along with necessary documents filed

before Sub-Divisional Officer Kota

Annexure-5: Copy of Application dated

23.06.1993 filed by Legal Heirs of deceased Onkari

Devi before the Sub Divisional Magistrate, Kota

 42

Annexure-6: Copy of Reply dated 28.08.1993 filed

by the Petitioner before Sub Divisional Magistrate

Kota

Annexure-7: Copy of Application dated

25.01.2002

Annexure-8: Copy of amended suit filed by the

legal heirs of Onkari Devi, Ramnathi Bai and

Dhanni Bai before the learned Sub Divisional

Officer, Kota

Annexure-9: Copy of Affidavit as well as cross

examination of PW-1, PW-2, DW-1 to DW-5

Annexure-10: Copy of Judgment dated

27.06.2008 passed by the SDO, Itawa, District Kota

Annexure-11: Copy of Appeal dated 08.04.2008

and 18.07.2008

Annexure-12: Copy of Appeal no. 3544 of 2012

and Appeal No. 3545 of 2012 both dated

07.05.2012 filed before the Board of Revenue,

Ajmer

Affidavit in support of Documents

JAIPUR

DATE : COUNSEL FOR THE PETITIONER

 43

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAHN

AT JAIPUR BENCH, JAIPUR.
S. B. CIVIL WRIT PETITION NO.______/2025
Hemraj alias Hema ….Petitioner/Defendant
VERSUS
Ganga Ram & Others ….Respondents/Plaintiffs

1 ACT / RULES/ S. B. CIVIL WRIT PETITION UNDER ARTICLE 226

SECTION/ & 227 OF THE CONSTITUTION OF INDIA
ORDINANCE
2 REFERENCE S. B. CIVIL WRIT PETITION AGAINST IMPUGNED
OF SUBJECT ORDER DATED 20.12.2024 PASSED BY THE
MATTER WITH PRESIDING OFFICERS (DIVISION BENCH) - SHRI
PROVISIONS
HEMANT KUMAR GERA (PRESIDENT), SHRI
RAJESH KUMAR DADIYA (MEMBER), BOARD OF
REVENUE, AJMER IN APPEAL NO. 3544/2012 AND
APPEAL NO. 3545/2012 TITLED "HEMRAJ Vs.
GANGA RAM & OTHERS" FILED BY THE
PETITIONER UNDER SECTION 224 OF RAJASTHAN
TENANCY ACT, 1955 WHEREBY IMPUGNED
ORDER DATED 17.04.2012 PASSED BY REVENUE
APPELLATE AUTHORITY, KOTA IN APPEAL NO.
143/2008 TITLED "GANGA RAM & OTHERS Vs.
HEMRAJ & OTHERS" AND IN APPEAL NO.
164/2008 TITLED "SHANTI BAI & OTHERS Vs.
HEMRAJ & OTHERS" FILED BY THE
RESPONDENTS UNDER SECTION 223 OF
RAJASTHAN TENANCY ACT, 1955 AGAINST
JUDGMENT AND DECREE DATED 26.07.2008
PASSED BY THE PRESIDING OFFICER, SHRI
KESAR LAL MEENA (RAS), LEARNED SUB-
DIVISIONAL OFFICER, ITAWA, DISTRICT KOTA IN
CIVIL SUIT NO. 97/2001 UNDER SECTION 83,
183, 188 OF RAJASTHAN TENANCY ACT, 1955
FILED BY THE PETITIONER, WAS UPHELD

HUMBLE PETITIONER
THROUGH COUNSEL-
JAIPUR
DATED:
[HARSH SHARMA ]
(R/1762-2014)
Email: [email protected]
Mob.:9602899541
Advocate