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2003 DIGILAW 470 (RAJ)

Gangaram v. Dayaram

2003-03-31

S.C.SINGHAL

body2003
SINGHAL, Member – Both these revision have been find u/Sec. 230 of the Rajasthan Tenancy Act, 1955, (in short ``the Act), against the order dated 9.5.2000 passed by Settlement Officer-cum-Revenue Appellate Authority, Kota, by which their appeals filed under Section 225 of the Act have been dismissed. Since question of fact and law is involved in both the revisions are same, therefore, they are being disposed of by common judgment. (2). In short, the facts of the case are that Araji Khasra No. 372 area 17 biswas and khasra No. 644 area 4 bighas 3 biswas situated at village Ghatoli Teh. Aklera belonged to the khatedari of one Chanda S/o Bheru Lal who died issueless on 4.7.98. Chanda was the real brother of Dhuli Lal, i.e., father of the appellants. On 15.2.91, Chanda executed a registered will of the suit property in favour of the applicants. The applicants filed an application under Section 212 of the Act in the court of Sub- Divisional Officer, Aklera in the main suit stating that on the basis of registered will they are in cultivatory possession of the disputed land, therefore, the non-applicant be restrained by temporary injunction not to evict them from the disputed land. (3). The non applicant Dayaram also filed an application under Section 212 of the Act stating that the disputed land is in the joint cultivation of Chanda, Dayaram and Dhuliya and after the death of Chanda they are in cultivatory possession of the disputed land being the brother of Chanda. It has also been stated that the applicants on the basis of registered will dated 15.2.91 have forcibly entered over the disputed land and they are still continuing, as such, therefore, receiver may be appointed on the disputed land. The trial court after hearing both the parties, dismissed the application filed by the applicants and appointed Tehsildar, Aklera as receiver on the disputed land. Against which, the applicants filed appeals before the learned lower court which have been decided as aforesaid, now these revisions. (4). It is not disputed that the non-applicant has filed suit under Sections 91, 183 and 188 of the Act. It has also not been disputed that the applicants are in possession of the disputed land on the basis of so called will executed by deceased Chanda. It is also not disputed that Chanda was the khatedar of the disputed land. It is not disputed that the non-applicant has filed suit under Sections 91, 183 and 188 of the Act. It has also not been disputed that the applicants are in possession of the disputed land on the basis of so called will executed by deceased Chanda. It is also not disputed that Chanda was the khatedar of the disputed land. The trial court has appointed receiver assuming that Chanda has concealed the fact regarding ancestral property in the will whereas learned lower court has supported the appointment of receiver stating that both the parties are claiming their possession over the disputed land and presuming that the possession is in medio endorsed the view given by the trial court. In my view both the courts below have erred in appointing receiver on the disputed land. Since the non-applicant has filed the suit under Section 183 of the Act and has prayed that the applicants are in forceful possession of the disputed land on the basis of registered will executed by Chanda, then it cannot be said that the possession is in medio. The finding of the trial court that in the will, Chanda has concealed the fact that the disputed property is ancestral, is also not justified and not in accordance with law. After perusing the trial courts judgment it comes out that in jamabandi Svt. 2042-45 a partition had taken place amongst all brothers and the disputed khasra numbers have come in the share of Chanda. In jamabandi Svt. 2054- 57 Chanda has been recorded exclusively as khatedar tenant of the disputed land, therefore, prima faciely it could not be said that the disputed land is ancestral property. When the non- applicant also admits the possession of applicants over the disputed land, then no question arises for appointing receiver. (5). In the result, revision No. 38/2000 is accepted and the orders dated 9.5.2000 passed by Settlement Officer-cum- Revenue Appellate Authority, Kota and Sub-Divisional Officer, Aklera dated 31.12.99 are set-aside, by which receiver has been appointed on the disputed land. (6). The learned counsel of the appellants has not pressed before me the revision No. 37/2000, by which prayer for granting temporary injunction under Section 212 of the Act has been refused by the courts below, therefore, this revision is dismissed as not pressed. Pronounced in the open court.