Gujar Singh (Deceased) through L. Rs. v. Bhag Singh
2009-08-07
G.K.TIWARI, RAKESH HOOJA
body2009
DigiLaw.ai
DR. HOOJA, C.—This is a second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short, "the Act") against the impugned judgment dated 25.8.1998 of Revenue Appellate Authority, Sriganganagar. 2. Briefly stated, the facts leading to the second appeal are that the appellant-plaintiff filed a suit under Section 88, 53 and 188 of the Act in the court of Sub-Divisional Officer, Sriganganagar who by his judgment and decree dated 19.7.1997 dismissed the suit and allowed the counter-claim to the extent of declaration of khatedari rights in respect of the lands mentioned in the will presented in the Court. Aggrieved against the judgment and decree dated 19.7.1997 of Sub-Divisional Officer Sriganganagar an appeal was prefer-red before Revenue Appellate Authority Sriganganagar who by the impugned judgment dated 25.8.1998 dismissed the appeal. Hence, the second appeal. 3. We have heard the learned counsels for both the parties. 4. The learned counsel for the appellant has pleaded that the lands are in dispute in the joint co-tenancy of five brothers Gujar Singh, Chander Singh, Mukand Singh, Bhag Singh and Lehar Singh sons of Mohan Singh and there are other co-tenants also of the disputed land but they are not impleaded due to the fact that the lands in dispute measuring 86 bighas whose details are given at para 2 of the plaint belong to five brothers only; the other co-tenants have neither possession nor any interest in this land. As such only interested co-tenants in possession of the disputed land are impleaded. It was contended that both the lower Courts wrongly held that oen of the co-tenants Mukand Singh carried out a will in favour of Kaddu Singh and Kalu Singh sons of Bhag Singh. A suit for division of holding with regard to land of joint tenancy cannot be dismissed as co-tenants have rights to claim partition of the land held in joint co-tenancy. Even if the land allegedly bequeathed is denied to the appellant-plaintiff, his right to division of the disputed land of co-tenancy cannot be denied. So both the impugned judgments of Courts below should be set aside. 5.
Even if the land allegedly bequeathed is denied to the appellant-plaintiff, his right to division of the disputed land of co-tenancy cannot be denied. So both the impugned judgments of Courts below should be set aside. 5. Countering the arguments of the appellant, the learned counsel for the respondents pleaded that Mukand Singh, one of the co-tenants of the disputed land, executed a Will in favour of the respondents No. 2 and 3 so trial Court rightly declared the respondents No. 2 & 3 as khatedars of the disputed land willed to them. The appellant-plaintiff could not prove his case before the trial Court and Revenue Appellate Authority and as such both the Courts have rightly dismissed the suit and appeal respectively. 6. We have given thoughtful consideration to the rival contentions, perused the impugned judgments and gone through the record available on the file. 7. Admittedly, the disputed lands stand in the joint tenancy of a number of co-tenants; but all the co-tenants have not been impleaded in the suit for division of holding. Perusal of the jamabandi Svt. 2034 (Ex.P/1) shows that the rival parties have only one third share in the disputed land and two third of the share belong to other co-tenants. Similarly, Jamabandi Ex.2 and Ex.3 also show a number of other recorded co-tenants who have not been made parties to the suit. The appellant-plaintiff at para 2 of the plaint has identified certain numbers of lands measuring 86 bighas as lands of joint holding among the five brothers. It is not clarified as to how these lands, stated at para 2 of the plaint, have been identified for the exclusive right and interest of the plaintiff and defendants to the exclusion of the rest of the co-tenants without effecting any division of the overall holdings held in joint tenancy. It is a settled principle that all the co-tenants have equal right and interest including equal possession on every inch of the land of the co-tenancy. Unless all the recorded co-tenants are impleaded in the suit for division of holdings, and actual division is carried out assigning particular piece of land to a particular co-tenant as per law and rules provided under the Act, such specific identification of lands as mentioned in the plaint cannot be made.
Unless all the recorded co-tenants are impleaded in the suit for division of holdings, and actual division is carried out assigning particular piece of land to a particular co-tenant as per law and rules provided under the Act, such specific identification of lands as mentioned in the plaint cannot be made. it is surprising that neither the trial Court nor the first appellate court (Revenue Appellate Authority) observed this glaring mistake and defect in the suit occasioned due to non-joinder of the necessary parties. It is mandatory under Section 53 of the Act that all the co-tenants have to be made parties in a dispute relating to division of holdings of co-tenancy. Since the trial Court ahs declared defendants No. 2 and 3 of the plaint as khatedar of certain pieces of land of joint tenancy on account of the alleged will without giving any opportunity of hearing to the other co-tenants of the same land, verdict of declaration does not sustain. Revenue Appellate Authority has also wrongly and illegally concurred in the erroneous judgment of the trial Court. 8. In view of the foregoing discussion the appeal succeeds, the impugned judgment of 25.8.1998 of Revenue Appellate Authority Sriganganagar and 19.7.1997 of Sub-Divisional Officer, Sriganganagar are set aside and the matter is remanded to the trial Court of Sub-Divisional Officer, Sriganganagar for fresh trial impleading all the all the co-tenants in light of above observations and decide the case as per provisions of Act and the rules of division framed thereunder. Both the parties are directed to appear before Sub-Divisional Officer Sriganganagar on 15.9.2009. Pronounced.