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2005 DIGILAW 1955 (RAJ)

Reshmi v. State of Rajasthan

2005-07-28

V.K.BALI

body2005
Honble BALI, J.–Challenge in the present writ petition is to order Annexure-5 dated 8.5.1986 passed by the learned Addl. Collector (Vigilence) Shri Ganganagar declaring 98.17 bighas of land in the hands of petitioner No. 1 as surplus as also the order Annexure-6 dated 25.4.1990 passed by the Board of Revenue, Ajmer by which, it was held that out of 125 bighas land, the petitioners were eligible to hold only 54.09 bighas and remaining 70.12 bighas land is surplus land in the hands of petitioner No. 1 and also to order Annexure-7 dated 31.7.1990 vide which, an application for review of the order dated 25.4.1990 passed by the Revenue Board, Ajmer was dismissed. (2). The facts on which there is no dispute and which have even been mentioned by the learned Addl. Collector, Shri Ganganagar in his order dated 8.5.1986 also reveal that one Sheoji Ram was owner of land measuring 153.05 bighas in Chak 4G Chhoti, Tehsil Shri Ganganagar. He died on 30.12.1937. He had two sons namely; Bhagirath and Hajari Ram. Bhagirath had wife namely; Kesar. From this wedlock a daughter named Nathi was born. Since, Bhagirath was not blessed with a son from his wife Kesar, he married Smt. Reshami, who gave birth to one daughter Kuldi and unfortunately, Bhagirath died having been murdered in Samvat Year 2000. Hajari the other son of Sheoji Ram was married with one Tulasi who died issue-less. After death of Bhagirath, Hajari married Smt. Reshami and started living with her. She gave birth to Banwari, Jagdish and Sohanlal. Even though, it is further the case of petitioners that since Smt. Kesar had no son, she took Banwari in adoption by a registered adoption deed dated 9.2.1960 but this fact may not be relevant in determining the controversy in hand. (3). Proceedings under Chapter III-B of the Rajasthan Tenancy Act, 1955 (herein after referred to as the old Ceiling Act, were initiated against Smt. Reshami. Declarations were filed by her, Sohanlal, Banwari and Jagdish wherein each of them declared that they were owners of share to the extent of 25 bighas of land. It was stated in the declaration that Hajari Ram had died on 1.4.1966. It is the case of the petitioners that no area in hands of Smt. Reshami was declared surplus under the Old Ceiling Law. It was stated in the declaration that Hajari Ram had died on 1.4.1966. It is the case of the petitioners that no area in hands of Smt. Reshami was declared surplus under the Old Ceiling Law. The proceedings for surplus area were dropped by the Sub Divisional Officer vide order dated 30.7.1971. The government however, directed reopening of the case vide order dated 10.1.1980 under Section 15(2) of the Act. The Addl. Collector vide his order dated 8.5.1986 held that Smt. Reshami and her husband Bhagirath were holding 153.5 bighas of land on the appointed date, they had only six members in their family and were entitled to retain only 54.8 bighas of land. The rest of area measuring 98.17 bighas of land was declared surplus and was ordered to be resumed. Aggrieved with the order, the petitioners filed an appeal before the Board of Revenue which was partly accepted vide order dated 25.4.1990. The sales made by the appellants of an area measuring 28.05 bighas was held to be bonafide and thus, exempted. An area of 70.12 bighas was still declared to be surplus in the hands of the petitioners. Still aggrieved, the petitioners moved an application for review of the order dated 25.4.1990 but without any success as the same was dismissed on 31.7.1990. It is in the circumstances fully detailed above, that the present writ petition seeking to quash the order Annexure-5 dated 8.5.1986 passed by the learned Addl. Collector, Shri Ganganagar and the order Annexure-6 dated 25.4.1990 passed by the Board of Revenue, has been filed in this Court. (4). Learned counsel representing the petitioners vehemently contends that it is a proved case of an ancestral or coparcenery property. He refers on that count to findings recorded by the learned Addl. Collector in his order Annexure-5 dated 8.5.1986. While giving narration of the facts the Addl. Collector mentioned that Sheoji Ram was owner of the land measuring 153.5 bighas. He had two sons Bhagirath and Hajari Ram. After demise of Sheoji Ram his two sons inherited his property in equal shares regarding which mutation was sanctioned. They were recorded to be owners of land measuring 76.12 bighas. Bhagirath had two wives namely; Kesar and Reshami. Bhagirath had died before 1.4.1966. His first wife Kesar had also died before 1.4.1966. He had two sons Bhagirath and Hajari Ram. After demise of Sheoji Ram his two sons inherited his property in equal shares regarding which mutation was sanctioned. They were recorded to be owners of land measuring 76.12 bighas. Bhagirath had two wives namely; Kesar and Reshami. Bhagirath had died before 1.4.1966. His first wife Kesar had also died before 1.4.1966. In the manner aforesaid the share of property which had fallen in the name of Bhagirath was inherited by Smt. Reshami, who married her husbands brother Hajari Ram in the manner aforesaid and thus the entire land was owned by Smt. Reshami and Hajari Ram. Even though, it is not mentioned in the order passed by the learned Addl. Collector, but the fact remained undisputed that from the wedlock of Hajari and Reshami three sons namely; Banwari, Jagdish and Sohanlal were born. (5). Learned counsel for the petitioners contends that it is an admitted position that land once owned by Sheoji Ram was inherited by his two sons and later by petitioner and another as mentioned above. The property was ancestral or co-parcenary in the hands of successors of Sheoji Ram including Banwari, Jagdish and Sohanlal. The co-parceners, even though minors cannot be said to be always dependent upon their parents and that being so the entire property could not be clubbed and considered to be owned by Smt. Reshami alone, for the purpose of computing her holding. He further contends that minor sons of Hajari Ram and Smt. Reshami were not dependent and would have been entitled to separate unit each and the land if so computed could not have been declared surplus. (6). For the aforesaid contentions, learned counsel for the petitioners relied upon two judgments of this Court in Bhoj Raj vs. SDO and Ors. RLR 1985 557 and Prabhu Lal and Ors. vs. Board of Revenue & Ors. RLR 1985 822 = (1985 RLW 523). Learned counsel pertinently relies upon the following observations made by this Court in the case of Bhoj Raj vs. SDO & Ors. (supra). ``It would appear from the above provision that the extent of the land of a coparcener would be deemed to be that share, which would have been allotted to him on the appointed date and it is on that basis the question of ``dependency can be examined. (supra). ``It would appear from the above provision that the extent of the land of a coparcener would be deemed to be that share, which would have been allotted to him on the appointed date and it is on that basis the question of ``dependency can be examined. Looking to the extent of the share of the coparcener, factually it could be found as to whether the coparceners irrespective of being minor or major, is dependent on his parents. (7). The contentions as mentioned above, it appears were pressed before the learned Board of Revenue but the same were rejected on the ground that the petitioners had brought no evidence to show that the minors sons of Hajari Ram and Reshami were not dependent upon them. Learned counsel for the petitioners contends that in so far as property being ancestral or not is concerned, the same on admitted facts mentioned above, was a question of law and there was no necessity to do anything further but for to show that the property was once owned by Sheoji Ram and it is on his demise that it devolved upon Bhagirath and Hajari and then upon Smt. Reshami. These facts were indeed brought on record and the learned Addl. Collector, Shri Ganganagar found these facts to be correct as well. (8). In so far as the question with regard to minor sons of Hajari Ram and Smt. Reshami being dependent, they were to hold share to the extent that the same would give to them on partition. The partition deed was effected well and for that precise reason that five declarations came to be filed. Each of the coparcener was to be an owner to the extent of 38.6 bighas of land and owner of such big co-parceners of land could not be styled to be dependent upon his parents. In the judgment relied upon by the learned counsel in the Case of Bhoj Raj vs. SDO and Ors. (supra), it was held that the extent of land by a coparcener would be deemed to be that share, which would have been allotted to him on the appointed date and it is on that basis the question of dependency can be examined. (supra), it was held that the extent of land by a coparcener would be deemed to be that share, which would have been allotted to him on the appointed date and it is on that basis the question of dependency can be examined. It was further observed that looking to the extent of the share of the coparcener, factually it could be found as to whether the coparcener irrespective of being minor or major, is dependent on his parents. The observations made by the learned Single Bench in Bhojraj vs. SDO and Ors. (supra), as mentioned above, clearly support the contentions of the learned counsel for the petitioners. The present is a proved case of an ancestral/coparceners property. The land could not possibly be held to be exclusively owned by Smt. Reshami, it was a co-parcenery property and all co-parceners had right in it by birth. The orders recorded by the Addl. Collector and Board of Revenue are against law, the same cannot sustain and the same are set-aside. The land could possibly be held to be owned exclusively sons of Hajari and Smt. Reshami were coparceners in this ancestral property. The decisions recorded by the learned Addl. Collector, and the Board of Revenue are against the law and thus, cannot be sustained and the same are set-aside. (9). The Original Authority is directed to re-compute the ceiling of land of Smt. Reshami and her sons by considering sons of Smt. Reshami as not dependent and if in that process some land has to be declared surplus, to pass an order accordingly. The writ petition is allowed in the manner as indicated above. (10). The parties however, shall bear their own costs.