SUBHASH CHANDER Vs. BOARD OF REVENUE RAJASTHAN

JUDGEMENT

(1.) This intra court appeal is directed against order dated 22.7.16 passed by the learned Single Judge of this court, whereby the writ petition preferred by the appellant, questioning the legality of order dated 2.5.16 passed by the Board of Revenue Rajasthan, dismissing the revision petition preferred against the order dated 16.5.05 by the Sub Divisional Officer (SDO), Suratgarh, rejecting the objections raised by the appellant against the proposal for division of a holding received pursuant to preliminary decree, has been dismissed.

(2.) The facts relevant are that the agriculture land ad measuring 6.325 hectare comprising stone no. 71/317 in chak 3 GMD, Tehsil Suratgarh was ancestral land of Mamraj. Mamraj was survived by four sons. Two sons Ramkumar and Udaipal sold 7.1 bighas land to the appellant and the respondent no.2, by a registered sale deed and 5 bighas land was sold by them to the respondents no.3 and 4 herein. Accordingly, 5.060 hectare (20 bighas) land was recorded in the names of the appellant and the respondent no.2 and remaining 1.265 hectare (5 bighas) was recorded in the names of respondent no.3 and 4. According to the appellant, after death of their father, the land was partitioned between the appellant and the respondent no.2 by mutual consent and they were in possession of their respective share. As per the settlement arrived at between them, the respondent no.1 agreed that he will leave some land for way to the land falling in the share of the appellant and for this reason, the appellant had given 15 biswas land in excess to the respondent no.1. A relinquishment deed was also executed in this regard on 14.5.02. Later, the respondent no.1 refused to make an application before the competent authority for recording the way as agreed upon. In these circumstances, the appellant preferred a suit for division of holding under Section 53 of Rajasthan Tenancy Act, 1955 (for short "the Act") and for sanctioning of the way under Condition No. 8(2) of Rajasthan Colonisation (General Colony) Conditions, 1955 ("Conditions 1955"). The suit was contested by the respondent no.1 by filing a written statement thereto. The respondent no.1 denied the factum of settlement arrived at and did not agree for division of holding on the basis of the possession, as prayed for by the appellant. He asserted that the holding should be partitioned on the basis of 'good out of good and bad out of bad'. The respondent no.3 and 4 did not put in appearance pursuant to the summon served and therefore, they were proceeded ex parte.

(3.) On the basis of the pleading of the parties, the trial court framed the issues as under: