MOHANI BAI Vs. BOARD OF REVENUE AJMER

JUDGEMENT

(1.) THIS petition has been filed challenging the order dated 18-12-2011 passed [in appeal No.1153/2010 filed under Section 224 of the Rajasthan Tenancy Act, 1955 (herein after '1955 Act')] by the Board of Revenue upholding the order dated 16-3-2010 passed by the Revenue Appellate Authority Kota [in Appeal No.37/2007 filed under Section 223 of the 1955 Act] setting aside the judgment and preliminary decree dated 30-3-2007 passed by the Sub Divisional Officer Digod District Kota in a suit No.68/1987 filed under Section 53 of the 1955 Act and passing a decree for partition of agricultural holding in old khasra No.610 admeasuring 19 bighas 2 biswas in village Chiparda Tehsil Digod District Kota and directing that the said holding be divided in equal measure between Kastur Chand and Loman Das (and his successors/ Legal heirs, the petitioners herein).

(2.) THE facts of the case are that the petitioners are successors of late Loman Das. Loman Das and Kastur Chand were the natural sons of one Kalyan Das erstwhile Khatedar of agricultural land in issue. Kastur Chand filed a suit for partition against Loman Das stating therein that his father Kalyan Das was the khatedar of land Khasra No.610 min admeasuring 19 bighas 2 biswas, equivalent to new number 887 and 914 admeasuring 2.07 and 0.64 hectare respectively and subsequent to his death, as joint khatedar of the said land with Loman Das he was entitled to a partition accordingly under Section 53 of the Rajasthan Tenancy Act.

(3.) COUNSEL for the petitioner has sought to impugn the judgments of the RAA Kota and the Board of Revenue Ajmer primarily on the ground of estoppel against Kastur Chand based on partition deed dated 13-7-1984 allegedly entered into between Kastur Chand and Loman Das. This court however finds no substance in the contentions of petitioner's counsel as it overlooks both the denial of the partition deed dated 13-7-1984 by Kastur Chand as also the fact that the courts below have held that purported partition deed dated 13-7-1984 recording the factum of rights and liabilities in respect of immovable property was not admissible in evidence in view of Section 17 of Indian Registration Act read with Section 49 thereof as it was not registered as required in law. COUNSEL for the petitioner has not even attempted to contend that purported partition deed dated 13-7-1984 between Kastur Chand and Loman Das was admissible in evidence, nor has sought to distinguish the judgment of this Court in the case of Permanad Setia Vs. Somial (supra) whereupon the RAA Kota has disbelieved and negatived the case of the successors of Loman Das and passed a preliminary decree in favour of Kastur Chand on the basis of evidence on record. From the facts on record it is evident that Kastur Chand and Loman Das were natural brothers, recorded as joint khatedars in revenue records after their father's demise and entitled to equal share in the property as devolved to them from their father Kalyan Das, i.e. old Khasra No.610 min admeasuring 19 bighas 2 biswas, new number 887 and 914 admeasuring 2.07 and 0.64 hectare respectively.