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2004 DIGILAW 817 (RAJ)

State of Raj. v. Hawa Kanwar

2004-05-19

H.R.PANWAR, RAJESH BALIA

body2004
Honble BALIA, J.–The question raised in this case is about the determination of ceiling area in the hands of the respondents. (2). The dispute concerns the land comprised in erstwhile Jagir of Gova Kalla consisting of two villages Gova and Jetu. In the first return filed under Chapter III-B of the Rajasthan Tenancy Act, 1955 (for short the `Act of 1955) on 28.12.1970, Kesar Singh S/o Joraver Singh claimed that he does not hold the land in excess of ceiling. In connection with this, it was stated that total land held by Kesar Singh in village Gova Kalla and Jetu comes to 894 bighas 4 biswas, out of which 280 bighas 3 biswas lies in village Gova Kalla and 614 bighas and 1 biswa lies in village Jetu. Shorn of other contentions, it was claimed in that return that by registered partition deed dt. 7.4.1964, 614 bighas and 1 biswa of land at Jetu has been subjected to partition amongst his sons and wife Hawa Kanwar and himself, out of which, 53 bighas and 13 biswas of land fell to the share of Kesar Singh. The holder also claimed hat certain transfers were made under the agreement to sale out of lands situated in Gova Kalla. (3). The Sub-Divisional Officer, Nagaur by his order dt. 29.3.1974 by recognising the partition made amongst the co- sharers of joint family property and not recognising the transfers alleged to have been made in favour of certain persons out of land situated in village Gova Kalla, found that Kesar Singh as on 1.4.1966 was holding 333 bighas and 16 biswas land which was less than the ceiling limit applicable to Kesar Singh. Considering the ceiling area applicable to the holder in question, the proceedings were dropped. (4). Thereafter, it appears that State Government after commencement of Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (for short `the Act of 1973) was of the opinion that there was error in determining the ceiling area in the case of State vs. Kesar Singh. The State Government in exercise of its powers U/s. 15 of the Act of 1973 made an order on 17.1.1981 for re-opening the ceiling case of Kesar Singh under the provisions of old ceiling law, i.e. to say under Chapter III- B of the Rajasthan Tenancy Act, 1955. (5). The State Government in exercise of its powers U/s. 15 of the Act of 1973 made an order on 17.1.1981 for re-opening the ceiling case of Kesar Singh under the provisions of old ceiling law, i.e. to say under Chapter III- B of the Rajasthan Tenancy Act, 1955. (5). The principal ground in the context of controversy raised before us and in the writ petition was about not recognising the partition through a registered deed by which ancestral property was partitioned on 7.4.1964 and it was opined that the said partition did not accord with Sec. 53 of the Rajasthan Tenancy Act and therefore, ought not to have been recognized. It was specifically stated that the partition which had taken palace after 25.2.1958 must be enquired into in accordance with the provisions of Sec. 53 of the Rajasthan Tenancy Act and the transfers made after 9.12.1959 can be recognised only in such cases where transfer in made in favour of landless persons. (6). Before the competent officer under the Act of 1973, the oral evidence (which included statements of persons who had paid rent revenue to erstwhile Jagirdar before it was resumed in respect of land in question) was led which referred to the land being part of a Jagir. The Jamabandi was also produced showing firstly the land recorded in the name of Joravar Singh, father of Kesar Singh and then in the name of Kesar Singh as Jagirdar, copies of which have been annexed with the writ petition. (7). By order dated 24.9.1985, the same claim was laid before the competent officer that the lad in question is ancestral and partitioned amongst sons and wife. The competent officer held that land falling in village Jetu is entered in the name of Kesar Singh, Jagirdar as Khudkast and therefore, the decision of this Court in Gopal Singh vs. State of Rajasthan, (1), may govern the land situated in village Jetu but it does not govern the land situated in village Gova Kalla. The competent officer also said that partition of 7.4.1964 was made with a view to defeat the provisions of ceiling law. Consequently, the claim of Kesar Singh about excluding the land forming part of partition deed was not accepted. The competent officer also said that partition of 7.4.1964 was made with a view to defeat the provisions of ceiling law. Consequently, the claim of Kesar Singh about excluding the land forming part of partition deed was not accepted. The competent officer also did not agree with the contention that even if the partition is not recognised, notional shares of co-sharers who are entitled to the share of partition on notional basis be excluded from the purview of holdings of Kesar Singh because they were living jointly. Consequently, Kesar Singh was holding 294.04 bighas or 33.30 standard acres of land in village Gova Kalla and 606.00 bighas or 45.16 standard acres of land in village Jetu. Allowing 30 standard acres of land as ceiling limit for Kesar Singh and considering membership of his family, 48.46 standard acres of land was declared to be surplus. (8). This order was appeared against by Kesar Singh who died meanwhile and was represented by heirs and legal representatives consisting of sons and widow. (9). Before the Board of Revenue, a specific plea was taken by the holders of the land that Kesar Singh had to adult sons who were entitled to separate units as family u/R.14 of the Rules of 1963 and that land in question is ancestral property over which the sons have right by birth which have to be considered separate from the holding of father Kesar Singh, but the same have been included in the holding of Kesar Singh erroneously. (10). From perusal of the order of Board of Revenue, we find that no finding on this aspect of the matter was recorded but by referring the question of age about Takhat Singh, one of the sons of Kesar Singh was minor as on the relevant date i.e. 1.4.1966 and because they were living jointly, must be deemed to be dependent on Kesar Singh. (11). Thus reasoning is contrary to law laid down by this Court time and again that a minor or for that matter no person holding separate land or joint land in their own right can be presumed to be separate merely on the basis of their age or joint living. The order is also not sought to be defeated on this ground and in our opinion rightly so. The Board of Revenue held that they cannot claim separate unit. (12). The order is also not sought to be defeated on this ground and in our opinion rightly so. The Board of Revenue held that they cannot claim separate unit. (12). This order of Board of Revenue dated 18.5.1989 was challenged by way of S.B. Civil Writ Petition No. 382/1991 which has been allowed by the judgment under appeal. (13). Before the learned Single Judge, the fact that land in question was ancestral property and it was partitioned on 7.4.1964 by registered partition deed was not disputed by the learned Government Advocate. On this admitted facts, the Court found that the controversy is governed by an earlier decision of this Court in Gopal Singhs case (supra) and allowed the petition. (14). From the memo of appeal, we also find that so far as the admission of aforesaid facts by the learned Government Advocate is concerned, the same is not challenged to be erroneously made. It is a different issue if the admission made during the hearing of the case made in the Court is recorded in the order the appropriate course should have been to seek a review of judgment of the excluding the admission. Be that as it may, even no explanation has been furnished to show that the admission made by the learned Government Advocate before the learned Single Judge was erroneous. (15). Apart from the aforesaid position of the proceedings of the Court, from the facts noticed by us, it is apparent that while of the land situated at village Gova Kalla and Jetu was right from the beginning claimed by Kesar Singh to be ancestral and part of Jagir land and co-prisoners to have share in the land in question in terms of Hindu law. Kesar Singh also laid his claim to actual partition on the basis of registered partition deed. He in his return has described himself as `Karta. (16). Even in the order passed by the competent officer, after the matter was considered second time on re-opening, the land being a part of Jagir land and ancestral land to be governed by the ratio laid down in Gopal Singhs case (supra) was held to be applicable. Still without referring to any other material, an assumptive finding was recorded by the competent officer that there was no evidence to hold that land in question is ancestral. Still without referring to any other material, an assumptive finding was recorded by the competent officer that there was no evidence to hold that land in question is ancestral. It is noteworthy to notice that even in re-opening order, no doubt has been cast on the ancestral nature of the land in question, and it being a part of Jagir, claim to partition has been doubted only on the ground that partition vide registered deed dt. 7.4.1664 does not accord with Sec. 53 of the Rajasthan Tenancy Act and that is also the only ground raised in the memo of appeal challenging the order of learned Single Judge recognising the property to be ancestral and partiable. The other grounds referable to the land transferred to the other persons or subject-matter of a decree passed in 1960 do not concern as no contention has been raised either before the learned Single Judge or before us in that regard. (17). The only controversy is whether the land in question was ancestral and whether partition effected by registered partition deed dt. 7.4.1964 could have been ignored and even if it were to be ignored, whether in view of the provisions of Sec. 5(17) of the Rajasthan Tenancy Act to treat the shares of co-sharers in a joint property to be separate unit, the judgment under appeal warrants interference. (18). As we noticed above, the fact that the property was ancestral and was partitioned by registered partition deed dt. 7.4.1964 was not disputed before the learned Single Judge and that is also supported by material on record, it must be accepted that the property in question was ancestral and was subjected to partition vide registered partition deed dt. 7.4.1964. The officers dealing with ceiling case were obviously in error in considering that there is no evidence to show that the property was ancestral. The finding recorded by ignoring all material to the contrary on record cannot be considered to be binding and is to be treated an error apparent on the face of record. (19). In this connection, the provision of Sec. 30-D, the part of old ceiling law in Rajasthan tenancy Act, 1955 needs to be noticed. The finding recorded by ignoring all material to the contrary on record cannot be considered to be binding and is to be treated an error apparent on the face of record. (19). In this connection, the provision of Sec. 30-D, the part of old ceiling law in Rajasthan tenancy Act, 1955 needs to be noticed. The said provision clearly indicates that for the purpose of determining ceiling area in relation to a person u/Sec. 30-C, the transfer effected by partition cannot be ignored or excluded on principles which are otherwise applicable to transfers, otherwise made by the holder of the land. Apparently, partition took place in furtherance of a pre-existing right in the property and is not in that sense the transfer of property which is recognition of an existing right in the joint property which gets separation and crystallised into specified share in the property. The effect of partition is only that the property which was hitherto joint and claim to specific part of the property as share of the individual joint holders cannot be indicated but can be expressed in the form of extent of his share. On partition, it is crystallised into specific part of the property when each share holder gets a specific share in lieu of his share in joint property. This being the scheme of the provisions of ceiling law, unless the partition can be held not to have reference to any pre-existing rights, enquiry can be limited to find whether partition or claim to share is unreal and not referable to any existing right but rights are created only by camouflaging the real transaction of transfer as partition. There cannot be any saving of such sham transaction under law. But this is far from saying that notwithstanding property is ancestral, person getting share has a pre-existing right to get a share in joint property on its partition, when the property gets partitioned by a registered deed which otherwise cannot be ignored, cannot be treated to be non-genuine by reference to Sec. 53 of the Rajasthan Tenancy Act. Permitting that will be to defeat the very purpose for which severance of specific share by partition of joint property has been kept out of exclusion clause u/Sec. 30-D read with Sec. 5(17) of the Rajasthan Tenancy Act. (20). Permitting that will be to defeat the very purpose for which severance of specific share by partition of joint property has been kept out of exclusion clause u/Sec. 30-D read with Sec. 5(17) of the Rajasthan Tenancy Act. (20). It may not be out of place to mention when ancestral property is partitioned amongst claimants to a share or partitioned by voluntary action, it need not be in exact exactitude ratio but may be uneven depending upon necessity and part of a family settlement and keeping in view of the property of family already held by each of them or liabilities to be discharged out of joint family property, therefore, mere unequal distribution also cannot be a ground of non-recognition of partition to treat as a sham. (21). In this connection, reference to Sec. 53 of the Act, in our opinion in not of significant assistance to the appellants. Undoubtedly, it lays down the procedure for effecting a division of holdings. Section 53 of the Act inter alia provides firstly that no holding shall be divided so as to result in holding of less area then the minimum prescribed by the State Government for each district, or part of a district. It also provides that division of a holding shall be effected in the following manner:- (i) by agreement between the co-tenants in respect of (a) such division of the holding; and (b) the distribution of rent over the several portions into which the holding is so divided; or (ii) by the decree or order of a competent Court passed in a suit by one or more of the co-tenants for purpose of dividing the holding and distributing the rent thereof over the several portions into which it is divided. It also further provides that no agreement for the division of a holding and the distribution of the rent thereof shall be binding on the landholder unless he agrees thereto in writing. (22). Obviously, the last condition does not make the partition void, illegal or ab-initio. May be that in a given case if it contravenes the provisions of Sec. 53, otherwise, the land holder may not agree to recognise the the partition but nonrecognition of partition as such, does not effect the inter se rights of the joint holders of the property either to hold property jointly or in specific divided shares as agreed to by them. In case, the land holder does not agree to division of the properties in writing which has been effected by agreement, the agreement to receive proportionate rent from the separate holders under the partition may not bind and he may be entitled to recover entire rent from any one of the holders, but no consequence of considering inter se relations of the holders not to give in acceptance has been provided. Apparently,t he authority under the ceiling law cannot assume for itself that land holder would withhold assent to such time while considering the case as statutory authority appointed under the ceiling laws. The competent officer under the ceiling law cannot substitute itself as land holder who assume that land holder does not agree with the partition. (23). A genuine deed partitioning the ancestral property to sever existing joint rights ought to be distinct from consideration of mere division of holding by creating new rights which may result in fragmentation of holdings or result in rendering any part to be uneconomic. Non-recognition of partition which primarily is an outcome of agreement between the persons having joint rights cannot be defeated on whims and caprice. The enabling power not to agree to division of holdings is not vested for defeating rightful claim of individual rights but with an object to prevent fragmentation and can be used for that end only. Else so far as ceiling law is concerned, it recognises and respects individual rights of a co-sharers or co-tenant by keeping partition out of purview of derecognition clauses of ceiling provision where partition takes place by severing respective shares by agreement between the parties. Section 33-D clearly recognises it as such and if no partition takes place, proviso to Sec. 5(17) recognises right of each co-sharers to be treated separate unit in respect of his share in the holding which will fall to his share if the partitions were to take place on relevant date. This recognition of separate right of individual in joint property cannot be defeated with reference to Sec. 53 of the Rajasthan Tenancy Act, 1955. (24). A very significant part of Sec. 53 has been over-looked by the authorities under ceiling Act. The object of enacting sec. 53 is clearly spent out to prevent such partition which result in fragmentation and render the holding uneconomic. (24). A very significant part of Sec. 53 has been over-looked by the authorities under ceiling Act. The object of enacting sec. 53 is clearly spent out to prevent such partition which result in fragmentation and render the holding uneconomic. This object is sought to be achieved firstly by prohibiting division of holding in a manner which may result in rendering any part of it to be less than minimum prescribed by the State in that regard. Withholding of consent must therefore ordinarily also relate to achieve this object and not one whim or caprice for other proposals not spelt out by the Statute or to defeat such transactions which are otherwise recognised by the State. No attempt has been made that partition through deed dt. 7.4.1964 resulted in rendering any holding less than prescribed minimum area for which consent could be withheld by the landholder, in the present case the State. (25). Apart from this aspect of the matter which need not detain us at this juncture because even if it be held that division of the holdings effected without obtaining the written consent of the land holder, so far as proceedings under the ceiling provisions are concerned, the possession of an holding in which the interest of more than one person is existing, Sec. 5(17) of the Rajasthan Tenancy Act draws a full curtain. Proviso to Sec. 5(17) of the Rajasthan Tenancy Act is reproduced as under:- ``(17) ``Holding shall mean a parcel of land, held under one lease, engagement or grant, or, in the absence of such lease, engagement or grant, under on tenure, and shall include, in the case of an Ijardar or Thekadar, theijara or theka area:- Provided that, for the purpose of Chapter III-B, all parcels of land held anywhere throughout the State by a person under one or more than one lease engagement, grant or tenure, and whether cultivated personally or let or sub-leb by him, shall be deemed to be his holding and, where any such land is held by more than one person as co-tenants or co-sharers, the share of each of them shall be deemed to be his separate holding whether a division thereof has or has not actually taken place. (26). (26). The said proviso was inserted in the definition of holding, vide an amendment w.e.f. 21.3.1960 only for the purpose of Chapter III-B for implementing ceiling law in aid of computation of holdings by any person as on 1.4.1966. It says in unequivocal terms that where land is held by more than one person as co- tenants or co-sharers, the share of each of them shall be deemed to be separate holding whether division has not actually taken place. Thus, the provision ought to have put an end to further enquiry into the questions whether the land falling to the share of co-parceners or any other person having a share in the ancestral property, when a partition had actually taken place, cannot be included in the hands of karta of family holding land as ancestral property which by its very nature is joint estate. It may be noticed that provision has not only been extended to the co-tenants but also to the co-sharers. Therefore, notwithstanding that in the case of ancestral holding, the land is recorded in the name of Karta, the co-parcener as persons entitled to a share at the time when partition takes place are to be considered as co-sharers as on the date partition actually takes place or as on the date share of such persons has to be notionally determined in terms of Sec. 5(17) of the Act of 1955 who can claim share by operation of law and their share cannot be included in the holdings of the holder but has to be deemed to be separate holding of such share in land of co-sharers. If partition deed dt. 7.4.1964 was to be recognised, specific share falls to the different co-sharers ought to have been excluded. If that deed was to be not taken into consideration, then too Sec. 53 of the Act of 1955 could not be relied on and effect to Sec. 5(17) ought to have been given on the basis of notional holding of the share by each of the co-sharer in holding as on 1.4.1966 by treating such shares as their separate holding respectively and on that premise, the question ought to have been determined. (27). (27). Apparently, the authorities under the Ceiling Act has not taken into account this statutory provision which is applicable to Chapter III-B while considering the case of Kesar Singh for determining the area applicable to him as on 1.4.1966 under Chapter III-B of the Rajasthan Tenancy Act. (28). In view of the aforesaid conclusion that the land in question was admittedly ancestral one and the share of the co- share whether on the basis of notional partition as if partition takes place on 1.4.1996 or on the basis of registered partition deed dt. 7.4.1964, the share of the co-sharer falling to their respective shares have to be excluded. The Board of Revenue and competent officer both have failed to take notice of Sec. 5(17) of the Rajasthan Tenancy Act which governs the determination of ceiling area in Chapter III-B. The orders passed by the competent officer as well as the Board of Revenue suffer from error apparent on the face of record and are liable to be interfered with by this Court, as has been done by the learned Single Judge. (29). Since the controversy was confined to exclusion of the land of co-sharers in the ancestral property, ceiling case of Kesar Singh has to be determined on that premise by considering the provisions of Sec. 5(17) as well as registered partition deed which has otherwise not claimed by land holders so far to be not binding on him. (30). Consequently, the appeal fails and is hereby dismissed. The determination of ceiling area in the case of Kesar Singh as on 1.4.1966 has to be decided afresh by competent authority in accordance with the principles enunciated above. No order as to costs.