Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 2122 (RAJ)

Mam Raj v. State of Rajasthan

2006-07-05

DALIP SINGH

body2006
Judgment Dalip Singh, J.-In 1976 the present suit was filed for partition of properties by the respondents on the ground that the plaintiffs who are legal representatives of Udairam have half share for the land in dispute alongwith Defendant No. 1 Lallu as per terms of patta and which is recorded in the revenue record. As such it was prayed that the land bearing Khasra Nos. 43, 44, 45, 48, 151, 152, 303, 304, 317, 318, 319, 320, 321 & 252 situated in village Kherla, Tehsil Kishangarhbas, District Alwar be divided equally ½ and ½ between plaintiff and Defendant No. 1 Lallu. 2. It was also mentioned in the plaint that the defendants including the Defendant No. 1 did not permit the plaintiffs to cultivate the land and as such relief for injunction was also sought alongwith a decree for partition. 3. The defendants filed their written statement in which it was admitted that the land was given on patta to Udairam predecessor of the plaintiff as well as defendant No. 1 Lallu, but after some time Udailal left village Kherla and went away Bas Kripal Nagar and Defendants Nos. 2 to 12 came of occupation of the same. It was also alleged that the land has been divided between Defendants No. 2 to 12 who are the petitioners herein and Defendant No. 1 Lallu and this fact has already recorded in the revenue record that Defendants No. 2 and 3 who are now represented by petitioners being the legal representatives of Asha and Laxman Defendants No. 2 and 3, were in possession of ½ of the land and that Lallu was in possession to the possession of the other half share. It was contended further that the defendants Asharam and Laxman represented by the petitioners herein have impliedly became the khatedars and that the plaintiffs have no right to claim any partition or injunction. 4. However, it may be mentioned here that the Defendants No. 2 and 3, now represented by the petitioners, did not claim any relief for themselves in the suit by way of any counter claim or otherwise as conceded by the learned Counsel for the petitioner. 5. 4. However, it may be mentioned here that the Defendants No. 2 and 3, now represented by the petitioners, did not claim any relief for themselves in the suit by way of any counter claim or otherwise as conceded by the learned Counsel for the petitioner. 5. Based upon the aforesaid pleadings the learned trial Court framed five issues and Issue No. 1 was with regard to the fact whether the plaintiff has half share in the patta land in dispute and that was in possession of the same. Issue No. 3 which is also important was whether the Defendants No. 2 and 3 have acquired title by adverse possession. The aforesaid issue was based upon the plea of partition between Lallu Defendant No. 1 and Asha and Laxman, Defendants No. 2 and 3 (represented by the petitioner) who had divided land half and half . 6. The learned trial Court after going through the evidence on the record vide Judgment dated 05.01.1985 decided Issue No. 1 in favour of the plaintiff holding that since it was admitted case that the predecessor of Udailal as well as Lallu had both half share in the land in dispute even as per the written statement the title over the land and the fact that the plaintiffs had half share was held proved. Even, as per the revenue record of Samwat 2012, it was held that the plaintiffs were entitled half share in the land alongwith Lallu Lal the Defendant No. 1. It was however, decided that Defendant No. 2 and 3 Asha and Laxman (now represented by the petitioner) were in permissive possession of the land. While deciding the Issue No. 3 it was held that the Defendant Nos. 2 and 3 had failed to prove the plea of adverse possession by leading cogent evidence in that behalf and that they were in permissive possession of the land as claimed by the plaintiffs. 7. Against the aforesaid Judgment and decree passed by the learned trial Court decreeing the suit the Defendants No. 2 and 3 filed an appeal before the Revenue Appellate Authority. It may be, however, mentioned that no decree for injunction or for possession was granted in favour of the plaintiff . 7. Against the aforesaid Judgment and decree passed by the learned trial Court decreeing the suit the Defendants No. 2 and 3 filed an appeal before the Revenue Appellate Authority. It may be, however, mentioned that no decree for injunction or for possession was granted in favour of the plaintiff . The Judgment of the learned trial Court was challenged before the Revenue Appellate Authority by the Defendants No. 2 and 3 and the Revenue Appellate Authority has also confirmed the aforesaid finding vide Judgment dated 28.01.1985. Being aggrieved by the Judgment of the learned Revenue Appellate Court the petitioner preferred a second appeal before the learned Board of Revenue and the Board of Revenue also dismissed the appeal vide Judgment dated 212.1993. Being aggrieved of the aforesaid Judgment and decree passed by the Courts below the petitioners who are legal representatives of Defendants No. 2 and 3 Asha and Laxman have preferred this writ petition. 8. Learned Counsel for the petitioner has sought to challenge the aforesaid Judgment and decree and contended that based upon the interpretation of Section 19AAA of the Rajasthan Tenancy Act, 1955 the petitioners were entitled to be declared as Khatedar tenant. So far as the above submission is concerned it is not in dispute that no relief was claimed by the petitioners (Defendants No. 2 and 3) in written statement by counter claim nor such plea was raised in the Courts below. As such a new plea cannot be permitted for the first time to be raised under Article 226 of the Constitution of India in the certiorari jurisdiction. Consequently, the aforesaid submission of the learned Counsel for the petitioner cannot be accepted. 9. As such a new plea cannot be permitted for the first time to be raised under Article 226 of the Constitution of India in the certiorari jurisdiction. Consequently, the aforesaid submission of the learned Counsel for the petitioner cannot be accepted. 9. The learned Counsel for the petitioner has submitted that even if a preliminary decree for partition was to be passed between the plaintiff and the Defendant No. 1 Lallu based upon each of them having half share in the land in dispute, the petitioners cannot be dispossessed in the suit for partition as no relief for possession has been sought as per the prayer made in the plaint, Annexure-I. In response to the aforesaid the submission of the learned Counsel for the petitioner, the learned Counsel for the respondent has submitted that plaintiffs sought a decree for partition and the learned trial Court in its Judgment dated 05.01.1985 while decreeing the suit has passed a preliminary decree for partition of half share in favour of the plaintiff and Defendant No. 1 and that no decree for possession has been passed. 10. I have given my thoughtful consideration to the aforesaid submissions. A perusal of the plaint goes to show that the plaintiffs have not claimed in relief for possession of the land and the learned trial Court in the decree has also not passed any decree has also not passed any decree for possession in the preliminary decree for half share of each, the plaintiff and the Defendant No. 1. In the instant case the plea of the defendant of earlier partition between the Defendant No. 1 and Defendant No. 2 Asha and Laxman now represented by the petitioners has not found to be proved. Thus, the property as such remained undivided. In view of the aforesaid, the land remained in the joint ownership of the plaintiff and Defendant No. 1 and possession of each one of them was for the other as well. Thus, after the final decree is passed dividing the property by metes and bounds, the possession may be handed over in accordance with law and the petitioners can only be dispossessed in accordance with law. 11. Thus, there is no force in the above submission of the learned Counsel for the petitioner and the same is rejected. No other plea has been raised. This writ petition is, therefore, dismissed. 12. 11. Thus, there is no force in the above submission of the learned Counsel for the petitioner and the same is rejected. No other plea has been raised. This writ petition is, therefore, dismissed. 12. In the facts and circumstances of the case, there shall be no order as to costs.