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2005 DIGILAW 663 (RAJ)

Government of Rajasthan v. Ummedaram

2005-02-28

DINESH MAHESHWARI

body2005
Judgment Rajesh Balia, J.-This appeal is directed against the Judgment of learned Single Judge dated 10.1.1997 by which the writ petition filed by the respondents was allowed and the order passed by the Board of Revenue holding the entire land in question to be of respondent Ummaida Ram alone and consequently upholding surplus land as determined by the Additional Collector, was set aside. 2. This appeal is barred by 82 days and notices of application under Section 5 of the Limitation Act were ordered to be issued on 8.1997. Until now the respondents have not been served. The proceedings show that this delay in service is caused essentially because of not taking timely action by the appellants. Either the notices have not been filed in time and if filed they have been filed more often incorrectly and matter has been time and again listed before the Court for seeking direction in this regard in the category of "default cases". 3. Almost 8 years have elapsed since issuance of notice of application under Section 5 and the matter has not proceeded further for want of service on respondents, we deem it just and proper to look into the merits of the case assuming the delay in filing the appeal is condoned and the appeal can be considered on merit. 4. We find that undisputed facts are that the land in question was originally held by Budha Ram, father of Ummaida Ram. Budha Ram had died in 1960 after coming into force of Hindu Succession Act, and before coming into force of Chapter III-B of Rajasthan Tenancy Act, 1955, containing old ceiling law; leaving behind his three sons Ummaida Ram, Kunna Ram and Tilok Ram and daughter Mst. Kishani. Though the estate including interest in land in question vested in the heirs of the deceased Ummaidaram on his death, in the land record no change was effected till 1969. Thereafter, in 1969, entry was made in the name of Ummaida Ram only, names of other two sons and daughter of Bhudha Ram were not entered in the land record. Amongst the four names referred to above, Tilok Ram also died in 1967 before the change in land records was made. 5. Thereafter, in 1969, entry was made in the name of Ummaida Ram only, names of other two sons and daughter of Bhudha Ram were not entered in the land record. Amongst the four names referred to above, Tilok Ram also died in 1967 before the change in land records was made. 5. In the aforesaid scenario, subsequent to the entry made in the land record, a suit for partition was filed by Ummaida Ram and Kishni against the surviving brother Kunna Ram and Government. That revenue suit No. 27/72 for partition of the Khatedari rights in the land originally held by Bhudha Ram was decided on 29.1973 while the heirs of the deceased Budha Ram had agreed for partition, the defendant No. 2, State through Tehsildar did not file any reply in spite of giving many opportunities and, therefore, the suit proceeded ex parte against the State. As the parties have agreed for partition of the land in question, a decree was passed after considering other evidence also which was led by the plaintiffs. 6. Meanwhile, ceiling proceedings were commenced under the Rajasthan Imposition of Ceiling Act, 1973. In the first instance, the plea of Ummaida Ram that the land in question has three sharers, one himself , Khuna Ram and their sister Kishni was accepted and it was found that he does not hold the land in excess of ceiling and proceedings were dropped by order dated 27.3.1975. 7. Thereafter, the proceedings were reopened in 1979 under Section 15 of the Act of 1973. Ummaida Ram took the same position. However, the Additional Collector did not accept the case of Ummaida Ram and by order dated 29.1973 held the entire land to be of Ummaida Ram and declared 30 bigha 5 biswas as surplus land. 8. The appeal against the same was dismissed by the Board of Revenue by opining that the decree obtained by Ummaida Ram was a cloak for avoiding the ceiling proceedings. It was also noticed that the suit was filed by Ummaida Ram in whose name, the land stood and, therefore, there was no necessity for him to file that suit when other heris of Budha Ram have not come forward for partition. 9. Hence, the writ petition No. 724/88 was preferred by Ummaida Ram, impleading his co-sharers also as parties. 10. 9. Hence, the writ petition No. 724/88 was preferred by Ummaida Ram, impleading his co-sharers also as parties. 10. The learned Single Judge has allowed the writ petition primarily on the basis that merely because the name of the petitioner alone was entered in the revenue record and not of his elder brother Kunna Ram cannot be conclusive proof that the land was passed over by deceased Budha Ram to Ummaida Ram. He also placed reliance on the decree passed by the Revenue Court which could not have been ignored unless it was set aside in appropriate proceedings on the ground that it has been obtained in collusion. 11. From the admitted facts, it is apparent that Budha Ram, the original holder died in 1960; his tenancy rights under the Rajasthan Tenancy Act are heritable and the succession to the tenancy rights is governed by the personal law to which the deceased is subject. As Budha Ram was governed by Hindu Law and in 1960 when he died, the Hindu Succession Act governed the case of undecided succession of his property, it vested in his heirs of Class I, if they are present in accordance with the provisions of Hindu Succession Act as soon as Budha Ram died. There being no dispute that Budha Ram died leaving behind three sons and a daughter, all of them are heirs of Class I, were to succeed simultaneously in equal shares. Even in the absence of any other material, unless otherwise proved, on the demise of Budha Ram, his Khatedari rights vested immediately in his heirs. In the absence of any Will left by the deceased, estate became subject of intestate succession. It is not the case set up by anyone that Budha Ram had left any testamentary deposition by which the normal course of succession would have been altered. The succession does remain in hitus. The property vests in heirs simultaneously with the death of the holder. Therefore, the estate of Budha Ram including his Khatedari rights vested in all the heirs of Budha Ram in 1960 at the time when he died. The entry in land records is not record of rights, but proof of possession and relevant evidence to set up title, but cannot alter the course of law relating to succession. 12. Therefore, the estate of Budha Ram including his Khatedari rights vested in all the heirs of Budha Ram in 1960 at the time when he died. The entry in land records is not record of rights, but proof of possession and relevant evidence to set up title, but cannot alter the course of law relating to succession. 12. Making an entry in the revenue records after 9 years of death of Budha Ram only in the name of one of the heirs present at the time of death, cannot lead to any inference either that the succession was testamentary or other parties have relinquished their shares in favour of person in whose name the land has been recorded. If the revenue wanted to prove otherwise, it could have brought on record the proceedings of mutation and to show whether notices were given to all concerned parties and their statements have been taken. On the other hand, the fact remains that in the suit of Ummaida Ram and Kishni, notwithstanding State being party, it did not choose to appear before the learned trial Judge and allowed the decree to be passed in terms of the succession claimed by the parties. 13. Moreover, the said suit was assumed to have been filed by Ummaida Ram alone but the Judgment of the learned trial Court shows that the suit for partition was filed by Umaida Ram and Kishni and not by Ummaida Ram alone and State of Rajasthan was impleaded therein as defendant No. 2 along with other surviving brother Kunna Ram. Therefore, it cannot be said that Ummaida Ram has filed suit only for the purpose of avoiding ceiling proceedings. Suit was equally filed by Kishni and her right as plaintiff could not be negatived by assuming that the suit was filed by Ummaida Ram only. 14. Even if the decree of the learned Revenue Court is ignored, the devolution of holdings by succession in 1960 cannot be ignored and the shares of heir present at that time of death of Budha Ram could not be ignored and assumed to have devolved in Ummaida Ram alone. In that event, the holdings of each of the share holders would be 1/4th each. 15. Thus, viewed from any angle, the Judgment of the learned Single Judge does not require any interference. 16. In that event, the holdings of each of the share holders would be 1/4th each. 15. Thus, viewed from any angle, the Judgment of the learned Single Judge does not require any interference. 16. Since, we do not find any merit in the appeal itself , no useful purpose would be served in keeping this matter pending only for the purpose of deciding the application for condonation of delay under Section 5 of the Limitation Act as for the present purpose, even if it is assumed to be allowed, would not alter the result. 17. The appeal fails and is accordingly dismissed.