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2003 DIGILAW 388 (RAJ)

Gangaram v. Goverdhan

2003-03-11

S.C.SINGHAL, SUDHIR VERMA

body2003
SINGHAL, Member – The appellants/defendants have been filed this appeal under Section 224 of the Rajasthan Tenancy Act, 1955, (in short ``the Act), against the judgment and decree dated 9.11.2002 passed by Revenue Appellate Authority, Jaipur, by which this appeal No. 127/2000, under Section 223 of the Act, has been dismissed. (2). In short, the facts of the case are that the respondent-plaintiff Goverdhan filed a suit under Sections 53 and 188 of the Act in the Court of Asstt. Collector, Dudu which was preliminary decreed on 16.9.98 and proposals for division were sought from Tehsildar, Dudu. After having received the proposals, the High Court passed the final decree on 17.10.2000. Aggrieved by this, the appellants filed an appeal in the Court of Revenue Appellate Authority, Jaipur which has been decided as aforesaid by the impugned judgment. Now this second appeal has been filed. (3). We have heard the learned counsel of both the parties and have gone through the record and the impugned judgment. (4). The learned counsel of the appellants, Mr. Purohit, has argued that no notice has been given to the appellants before preparing and placing on records the map showing in different colours the plots given to each party and thus no compliance of Rule 21 of the Rajasthan Tenancy (Board of Revenue) Rules has been made. It has also been argued that the Tehsildar has not gone on site and divided the suit land according to the shares of the parties as shown in the report. He has further argued that the mandatory provisions of the Rules have not been complied with; therefore, the final decree passed on the basis of the report of Patwari Halka is not in accordance with law. He has cited ``LRs of Ramgopal vs. Syed Jamil Hasmat & Ors. (1). On the other hand, the learned counsel of the respondent, Mr. Jain, while supporting the impugned judgment has argued that no illegality has been committed by the Courts below while passing the final decree. (5). We have given our due consideration to the rival contentions and have perused the record of the file. (6). The learned trial Court has passed the preliminary decree on 16.9.98 for division of holdings. Jain, while supporting the impugned judgment has argued that no illegality has been committed by the Courts below while passing the final decree. (5). We have given our due consideration to the rival contentions and have perused the record of the file. (6). The learned trial Court has passed the preliminary decree on 16.9.98 for division of holdings. In such case, it is always necessary for the Courts passing decree to, on the application of either parties, appoint Tehsildar as Commissioner to make division of holdings in accordance with the preliminary decree by metes and bounds and the commissioner has to submit his report to the Court passing the decree. Then all the parties can prefer objections to that report and the trial Court has to decide the objections and then pass a final decree. It is only a final decree for division of holdings which could be executed by delivery of possession and change in the entry in revenue record including distribution of rent. This procedure was unfortunately not followed in this case as the Tehsildar has not gone on the site and the patwari concerned has prepared the site report on 28.12.98 in the absence of Tehsildar. This report does not bear even the counter-signature of Tehsildar concerned. Rule 21 of Rajasthan Tenancy (Board of Revenue) Rules clearly indicates that the Tehsildar shall prepare and place on record map showing in different colours the plots given to each party and, if any, field has been subdivided he shall demarcate the portion at the expense of the parties. Keeping in view the rules and regulations relating to division of holdings it was incumbent upon the Tehsildar to have inspected the site himself and in the presence of the parties after hearing their versions devised partition by metes and bounds keeping in view the quality of the land which has not been done by the Tehsildar. (7). In the result, the appeal succeeds and the judgments and decrees passed by Revenue Appellate Authority, Jaipur dated 9.11.2001 and Asstt. Collector, Dudu dated 17.10.2000 are set aside. The case is sent back to the trial Court for drawing final decree in the light of observations made above. (8). Pronounced in the open Court.