MANOHAR LAL Vs. THE BOARD OF REVENUE

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India has been filed impugning the judgment and decree dated 23.07.1997, passed by the Board of Revenue Rajasthan, Ajmer (hereinafter 'the Board') setting aside the judgment and decree dated 24.08.1993, passed by the Revenue Appellate Authority, Alwar (hereinafter 'RAA') and upholding the judgment and decree dated 09.01.1986, passed by the Assistant Collector, Rajgarh, Laxmangarh, District Alwar whereby the respondent -plaintiff's suit for declaration of khatedari rights and partition in respect of 1/4 of agricultural land ad measuring 21 bigha 7 biswa in khasra Nos. 223, 225, 226, 227, 333, 1020, 1021, 1022 at village Ganduda, Tehsil Laxmangarh, District Alwar was decreed.

(2.) THE facts of the case are that the respondent -plaintiff (hereinafter 'the plaintiff) filed a suit inter alia against the petitioners -defendants (hereinafter 'the defendants') under Section 53 of the Rajasthan Tenancy Act, 1955 (hereinafter 'the Act of 1955') for partition of 21 bigha 7 biswa land in the khasras detailed hereinabove claiming 1/4 share therein. The foundation of the plaintiff's suit was that the suit land was ancestral and as the successor of the erstwhile khatedars, he is entitled to 1/4 share therein. The suit was opposed by the defendants. They filed written statement on 13.02.1976 denying the allegation of the suit land being in joint khatedari in which the plaintiff had no share at all and stated that the plaintiff was not entitled to partition of the suit land on any ground. It was further stated that the plaintiff was never in possession of the suit land of which he claimed partition as joint khatedar and had never at any point of time paid rent in respect thereof. The sole and exclusive possession of the defendants over the suit land was asserted. It was further submitted that the ancestors of the plaintiff and the defendants had entered into an oral partition in respect of ancestral land over 100 years ago consequent to which the plaintiff and his brother one Laxman, who was impleaded as a proforma defendant in the suit, had come into khatedari of 8 bigha 10 biswa of agricultural land through their erstwhile ancestors.

(3.) ON the basis of the evidence both oral and documentary laid by the parties, the Assistant Collector held that on the basis of revenue records presented before him as also the admission of the State Government which had been impleaded as defendant in the suit, the suit land was standing in the joint names of the plaintiff, the defendants and others and was thus in their joint khatedari. It was held that in view of the joint khatedari of the plaintiff and the defendants as per revenue records, mere possession of the defendants alone over the suit land, if at all, could not entail the ouster and negation of the plaintiff's right as khatedar and claim to partition of the suit land as per the share coming to his account i.e. 1/4. It was held that the plaintiff was therefore entitled to a decree of partition. The Assistant Collector found that the defendants had failed to produce any oral or documentary evidence to establish that the erstwhile ancestors of the plaintiff, the defendants or others had entered into an oral partition in respect of the suit land over 100 years ago. This conclusion was buttressed by the fact that no entries consequent to the purported oral partition were made in the revenue records as they would indeed have been in the event of an oral partition as propounded by the defendants in fact had at all taken place. It was held that the State having been impleaded as defendant in the suit for partition through the Collector, Alwar, the defence of the defendants that the suit be dismissed for non -impleadment of the State was untenable and of no avail. More so when in the written statement filed on behalf of the State, the Nayab Tehsildar had admitted to the plaintiff's joint khatedari with the defendants and his right to partition and recording of 1/4 share of the suit land in his own name as khatedar thereof. The Assistant Collector also noted that earlier a suit filed by the plaintiff for injunction against the defendants for protection of his possession of the suit land to the extent of his rights therein had been decreed by the revenue court on 30.05.1978, whereagainst the first and second appeals filed by the defendants before the RAA and the Board had failed on 04.08.1978 and 27.08.1984 respectively. The said concurrent judgments in the earlier proceedings at the instance of the plaintiff in his suit for permanent injunction were before the trial court and considered. In these circumstances, the suit of the plaintiff for partition and recording of 1/4 share of the suit land in his khatedari was decreed.