NARAYAN LAL Vs. SUB DIVISIONAL OFFICER BHILWARA

JUDGEMENT

(1.) I have heard learned counsel for the parties.

(2.) LEARNED counsel for the petitioner raised two contentions before me. His first contention is that the proceedings regarding the determination of the ceiling area applicable to late Shri Hari Singh, the transferor of the petitioners, could not have been decided under Chapter III-B of the Rajasthan Tenancy Act after the promulgation of the New Ceiling Act of 1973. This question has been considered in all its aspects and concluded by the decision of a Special Bench of this Court in Bansidhar v. State of Rajasthan, Special Appeal No. 8 of 1976 decided on 21-10-1976 = (AIR 1977 Raj 46) (FB) and it has been held therein that pending matters will have to be decided in accordance with the provisions of Chapter III-B of the Rajasthan Tenancy Act. This contention of the learned counsel, therefore, deserves to be repelled now in accordance with the aforesaid decision of the Special Bench.

(3.) THE second contention raised by the learned counsel is that the petitioners were transferees of late Shri Hari Singh and that an agreement for sale was executed in favour of the petitioners on April 28, 1957 but sale deeds came to be executed on August 22. 1966 or thereabout. According to the learned counsel, the transfers in favour of the petitioners were protected under the provisions of Section 30-DD of Chapter III-B of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act' ). However, there are two preconditions for recognition of a transfer under Section 30-DD, namely (i) the transfer should have been effected up to the 31st day of December, 1969; and (ii) it should have been effected in favour of an agriculturist domiciled in rajasthan or in favour of the son or brother of the transferor, intending to take to the profession of agriculture and capable of cultivating land personally and who had attained the age of majority on or before the aforesaid date. So far as the first requirement is concerned, the transfers in question were no doubt made in favour of the petitioners on or about August 22, 1966, but the second requirement of Section 30-DD of the Act is not fulfilled in the present case. It is not the case of the petitioners that they were either sons or brothers of the transferor Shri Hari Singh and, therefore, the transfers effected by him in their favour could only be protected if the petitioners were agriculturists and further if they were domiciled in Rajasthan. The second Explanation incorporated by the Legislature to Section 30-DD provides that the expression, "domiciled in rajasthan" in that Section referred to a person who was permanently residing in Rajasthan since before the commencement of the Act. The agreement which is said to have been executed by late Shri Hari Singh in favour of the petitioners on April 28, 1957 has been placed on record by the learned counsel for the petitioners and it mentions that the petitioners were residents of village dhansura of district Sabarkanta in the State of Gujarat. The grievance of the learned counsel for the petitioners is that this agreement dated 28-4-1957 was sought to be produced by the petitioners before the Revenue Appellate authority, but that Authority failed to take the same in evidence under Order 41 rule 27 C. P. C. In my view, even if the document in question, namely the agreement dated April 28, 1957 would have been taken on record by the revenue Appellate Authority, it would have rather disproved the contention of the learned counsel, as a perusal thereof shows that the petitioners were not "domiciled in Rajasthan" within the meaning of that expression as used in section 30-DD, because they were not permanently residing in Rajasthan since before the commencement of the Rajasthan Tenancy Act, 1955.