HUSSAIN Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS appeal is directed against the order dated 25.7.2012 passed by learned Single Judge in SB Civil Writ Petition No. 5477/2012. By the order impugned the writ petition preferred by the petitioner appellants, giving challenge to the orders dated 28.8.2003 and 24.1.2012 passed by the Board of Revenue, Rajasthan, Ajmer in appeal No. 290/1998 and in Review Petition No. 4478/2003 respectively, came to be rejected. The facts necessary to be noticed for adjudication of this appeal are that one Shri Basaya was holding agriculture land comprising Khasra Nos. 282, 308 and 457 in village Shedwa, Tehsil Chohtan, District Barmer. Shri Basaya in his lifetime partitioned the land aforesaid amongst his three sons viz. Arab, Sumar and Gafoor. The land bearing Khasra Nos. 308 and 457 was under the share of Gafoor, whereas the land bearing Khasra No. 282 fell in the share of Sumar and Arab jointly. Shri Sumar died unmarried and after his death the entire land under Khasra No. 282 was mutated in the name of Arab. The descendants of Gafoor (respondents Nos. 6 to 12) preferred a suit for declaration, revision of holding and permanent injunction as per provisions of Sections 91, 88, 188 and 53 of the Rajasthan Tenancy Act against the petitioners who are descendants of Arab. The petitioner defendants claimed a declaration for khatedari rights for 1/2 share of deceased Sumar in the land bearing Khasra No. 282. As per the plaintiffs, Shri Sumar died unmarried in Samvat 2023 while residing with Gafoor and he had given his entire share in the land to the respondent plaintiffs and they are in continuous possession thereon, but after death of Sumar the land was mutated in the name of Arab.

(2.) THE suit was contested by filing a written statement. As per the defendants their ancestor Arab was in cultivatory possession of the land in question since settlement operation and Arab died long back. The mutation was also effected in favour of the defendants after death of Arab, as such by adverse possession they are having all khatedari rights over the land and no decree as prayed for could be issued.

(3.) THE submission of counsel for the appellants is that the trial court failed to take care that the parties to the suit being Muslim, the entire case should have been considered as per the personal law applicable. It is asserted that as per Sections 39 and 40 of the Rajasthan Tenancy Act the succession of khatedar tenant was to be decided as per the personal law applicable to the tenant.