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2001 DIGILAW 1481 (RAJ)

Dariyav Kanwar v. State of Rajasthan

2001-09-15

JAGAT SINGH, RAJESH BALIA

body2001
JUDGMENT 1. - Heard learned counsel for the parties. 2. The long and short story of the appellant Smt. Dariyav Kanwar, widow of Fateh Singh, is that the :and in question admeasuring 266 bighas and 6 biswas which was held by the erstwhile holder Kalyan Singh, her father-in-law, has been transferred to her by a registered deed dated 20th Nov., 1951 for her maintenance. The said registered deed has been filed as Annx. 1. Inspite of this transfer having taken place in 1951, and noticing this fact the competent Authority under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 read with provision of Chapter III-B of the Rajasthan Tenancy Act, 1955, while considering the case of Kalyan Singh has 1 excluded 10 bighas of the land only out of 266 bighas 6 biswas land covered under Annx. 1 in his order Annx. 9 which has been affirmed by the Board. Rest of the land has been included in the computation of the lands held by Kalyan Singh as on 1.4.1966 in the ceiling proceedings under Chapter III-B of the Rajasthan Tenancy Act read with Rajasthan Imposition of Ceiling on 1 Agricultural holdings Act, 1973. This was done notwithstanding the fact that transfer had taken place much prior to even 25.2.58 the earlier cut off date, initially fixed for not recognising transfer made thereafter for the purpose of provisions of the ceiling laws. As a result of such inclusion of the petitioner's land, the surplus lands declared in the hands of Kalyan Singh Is sought to be acquired. It has also been stated that before effecting her rights adversely no notice had been given to her, and therefore, not objecting to the inclusion of her property in the ceiling of Kalyan Singh by Kalyan Singh or his other legal representatives cannot affect her rights adversely. She, therefore, challenged the order Annx. 9 dated 25.8.94 passed by the competent officer as affirmed by Board of Revenue vide its order dated 26.6.95 passed in appeal and order dated 5.2.97 passed in review application. 3. The learned Single Judge without examining the merit of the case of the petitioner has dismissed the writ petition by holding that she has remedy of filing suit for declaration or for injunction if possession of the land is sought to be taken from her. The petition has been dismissed on 12th March, 1997. 4. 3. The learned Single Judge without examining the merit of the case of the petitioner has dismissed the writ petition by holding that she has remedy of filing suit for declaration or for injunction if possession of the land is sought to be taken from her. The petition has been dismissed on 12th March, 1997. 4. In pursuance of notice issued by Division Bench of this appeal, a reply to the writ petition has been filed on behalf of the respondent State. From the perusal of that reply, the execution and genuineness of the document Annx. 1 stands admitted. It reads as under : "........... The Addl. Collector, Nagaur decided the ceiling case against Shri Kalyan Singh vide order dated 25.8.94 (Annx. 9) excluding 10 bighas of lands transferred in favour of the petitioner vide registered sale deed dated 20.11.51 (Annx. 1) and refused to exclude other lands transferred in favour of the petitioner by late Shri Kalyan Singh." 5. Only 10 bighas of land transferred in favour of the petitioner vide registered sale deed dated 20.11.1951 has been excluded but the competent officer has refused to exclude other lands on transfer In favour of the petitioner leave it to be groped in dark for the reason that could prevail with the competent officer only part of the land governed by the registered transfer deed affecting 266 bighas and 6 biswas of the land which has been effected by the holder Kalyan Singh in favour of his widowed daughter-in-law for her maintenance which property had become absolute property on commencement of the Hindu Succession Act, 1956 by dint of Section 14 of that Act. 6. The only reason which learned counsel for the respondents could furnish in support of this exclusion from the tenor of the order passed by the competent officer is that to the extent mutation in pursuance of the said transfer deed took place after the date specified in the provisions of Chapter III-B, therefore, the same has not been recognised. 7. Suffice it to state that what has been not recognised are the transfers made after the date specified in Section 30-D of Chapter Ill-B viz. 25.2.1958 but it has not been conditioned with the mutation also having taken place prior to that date. The refusal to exclude the lands governed by Annx. 7. Suffice it to state that what has been not recognised are the transfers made after the date specified in Section 30-D of Chapter Ill-B viz. 25.2.1958 but it has not been conditioned with the mutation also having taken place prior to that date. The refusal to exclude the lands governed by Annx. 1 dated 20.11.51, whose authencity and genuineness has not been in doubt, and confining the recognition of that transfer only to the extent of 10 bighas of land, in our opinion, cannot be sustained on any reason. 8. It has also been admitted in the reply that Kalyan Singh had died during the pendency of the ceiling proceedings and legal representatives were impleaded, but it was not necessary to have given any notice to the petitioner as his legal representative. This stand is also not sustainable. The petitioner, widow of his pre-deceased son, being an heir of Class-I under the Hindu Succession Act, was legally entitled to be treated at par with other heirs and could not have been denied notice, even if it was considered that the lands transferred to her were her absolute property. There could be no reason to recognise transfer in respect of only small measure of 10 bighas of land and not recognise the transfer of rest of the land through the and to include the same in the holdings of Kalyan Singh. 9. In view of the admitted facts, we refrain from going in detail In the question whether the petitioner could got a relief by filing a suit for declaration or obtaining injunction inspite of the proceedings under the ceiling law having become final. The petitioner is entitled to relief on admitted facts. 10. In view of above discussion, this appeal succeeds. The judgment under appeal is set aside, the writ petition is allowed and the orders passed by the competent officer as affirmed by the Board of Revenue are set aside to the extent they concern inclusion of the land covered under deed of transfer dated 20.11.1951 in favour of petitioner and direct the competent officer to recompute the land held by Kalyan Singh by excluding the lands covered by Annx. 1 dated 20.11.51 which stood transferred in favour of petitioner much before 25.2.58, the date inhibiting the recognition of transfers made thereafter, which could not have been ignored for the purposes of computing the lands held by Kalyan Singh on 1.4.1966. 11. There shall be no orders as to costs.Appeal and Writ Petition Allowed - Order of Single Judge Set Aside. *******