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2009 DIGILAW 312 (RAJ)

Parmanand v. Kusum Devi

2009-02-02

G.K.TIWARI, KUSHAL SINGH

body2009
JUDGMENT SINGH, C.—The above cited two appeals under Section 224 of the Rajasthan Tenancy Act, 1955 (in short `the Act') are directed against the impugned judgments and decree dated 23.3.01 and 15.4.05 of Revenue Appellate Authority Kota passed in appeal No. 21/01, and appeal No. 132/03 respectively by which these appeals were dismissed and preliminary and final decree were issued with regard to the disputed land. 2. Since parties and subject matter of the dispute involved in both the appeals are the same we are deciding them together by a common judgment, a copy of which may be placed in each of the files separately. 3. Briefly stated, the facts leading to these two appeals are that respondent No. 1 plaintiff filed a suit under Section 53 and 188 of the Act against the appellant-defendant and respondent No. 2 which was decreed by Sub-Divisional Officer Jhalawar vide his judgment dated 28.4.1997, aggrieved against which the appellant-defendant preferred an appeal before Revenue Appellate Authority under Section 223 of the Act which was dismissed by the impugned judgment dated 23.3.01. The appellant has preferred second appeal before this Court against the impugned judgment dated 23.3.01 of Revenue Appellate Authority Kota. In the meantime Sub-Divisional Officer by his judgment and decree dated 11.4.02 passed final decree against which the appeal was filed by appellant before Revenue Appellate Authority Kota who by his impugned judgment dated 15.4.05 dismissed the appeal. Hence the second appeal. 4. We have heard the learned counsels for both the parties. 5. The learned counsel for the appellant has argued that the respondent-plaintiff does not have any share in the disputed land as this land originally belonged to the maternal grandmother of the appellant. In the suit before Sub-Divisional Officer Kamla Bai, the sister to Laxminarain (father of the co-tenants) was not made a party whereas she was a necessary party. The trial Court has not given issue wise decision as such the preliminary decree is not according to Order 41 Rule 31 of the Civil Procedure Code (C.P.C.) and as such deserves to be set aside. About final decree it was argued that only share of respondent-plaintiff is divided but rest of the co-tenants are kept together in joint tenancy which is wrong. Partial division of holdings has been carried out according to wish and dictate of respondent-plaintiff. About final decree it was argued that only share of respondent-plaintiff is divided but rest of the co-tenants are kept together in joint tenancy which is wrong. Partial division of holdings has been carried out according to wish and dictate of respondent-plaintiff. All the good quality land is given to respondent-plaintiff in disregard of principle of metes and bounds so the final decree also deserves to be set aside. 6. Countering the arguments of the appellant, the learned counsel for the respondents has contended that the trial Court has given its judgment of preliminary decree for division of the disputed land among the recorded co-tenants. There is nothing illegal about it. The final decree has also been properly issued in pursuance of the preliminary decree. There is nothing illegal about final decree. Both the appeals are time barred as such deserve to be dismissed on the point of limitation only. The judgments of both the lower courts are concurrent and as such need no interference. 7. The Government Advocate pleaded that preliminary decree issued by the trial Court is as per law but the final decree is not according to the laid down procedure and law. While issuing final decree only share of the respon-dent-plaintiff is demarcated whereas rest of two co-tenants are kept together in the joint tenancy. This leaves scope of further litigation. Under Section 53 of the Act land of joint co-tenancy has got to be divided among all the co-tenants according to metes and bounds in keeping with the provisions contained under Rules 18 to 21 of the Rajasthan Tenancy (Board of Revenue) Rules 1955 (Rules of 1955). Any division done in contravention of these rules 18 to 21 of the Rules of 1955 is illegal. He cited 1995 RRD 475 in support of his contention. 8. We have given thoughtful consideration to the rival contentions, perused the impugned judgments of the lower courts and carefully gone through the record available on the files. 9. The learned counsel for the respondents has argued that both the appeals are time barred and as such they should be dismissed on the point of limitation. Appeal No. 4698/03 was filed on 19.9.03 against the impugned judgment dated 23.3.01 accompanied with the application under Section 5 of the Limitation Act to condone the delay. 9. The learned counsel for the respondents has argued that both the appeals are time barred and as such they should be dismissed on the point of limitation. Appeal No. 4698/03 was filed on 19.9.03 against the impugned judgment dated 23.3.01 accompanied with the application under Section 5 of the Limitation Act to condone the delay. The grounds given for the delay are that the appellate comes from a remote interior village and is ignorant about the point of limitation. The counsel of the appellant also did not inform about judgment in time and thereafter the copy of the impugned judgment could not be obtained in time causing further delay. All these are stereotype defense of delay but looking to the fact that the division of holding is a continuing right and a case like this should be decided on merit we allow the application and condone the delay taking a liberal view. As far as appeal No. 3321/05 is concerned, it was filed on 4.7.05 against the impugned judgment dated 15.4.05. This, obviously, is filed within limitation. 10. Admittedly, the appellant and respondents No. 1 and 2 are recorded co-tenants of the disposed land. Perusal of the judgment dated 28.4.1997 of Sub-Divisional Officer Jhalawar shows that he has given his judgment issue wise -discussing and adjudicating upon every issue separately; so we do not agree with the contention of the learned counsel of the appellant that the judgment of trial Court is not in accordance with the provision of Order 41 Rule 31 of the C.P.C. About non-joinder of necessary party issue No. 5 has been dealt with and decided against the appellant-defendant on the ground the defendant has not proved that the land ever stood in the name of deceased Laxminarain and hence Kamla Bai- his sister-was a necessary party. We do not find any infirmity in the inference of trial Court in deciding the issue No. 5. The learned counsel for appellant has not pointed out any error or illegality in deciding any of the rest of the issues ranging from 1 to 8. Revenue Appellate Authority Kota has also endorsed to the preliminary decree issued by the trial Court. We do not find any irregularity or illegality in the concurrent judgment dated 28.4.1997 of Sub-Divisional Officer Jhalawar and 23.3.01 of Revenue Appellate Authority; as such appeal No. 4698/03 does not sustain. 11. Revenue Appellate Authority Kota has also endorsed to the preliminary decree issued by the trial Court. We do not find any irregularity or illegality in the concurrent judgment dated 28.4.1997 of Sub-Divisional Officer Jhalawar and 23.3.01 of Revenue Appellate Authority; as such appeal No. 4698/03 does not sustain. 11. As far as appeal No. 3321/05 is concerned, perusal of the record of the trial Court shows that proposal of division of holding was prepared in presence of and at the behest of the respondent-plaintiff; the rest of the co-tenants were not present during preparation of the proposal for the division of holding. It is also noteworthy to observe that provisions as contained in Rules 18 to 21 of the Rules of 1955 for giving effect to the division of holding have not been followed, whereas observance of these rules of partition are mandatory as is held in 1995 RRD 475. The trial Court has also committed a glaring irregularity and illegality in dividing and demarcating only the share of respondent-plaintiff, rest of the co-tenants are kept together and their land is retained in joint co-tenancy. This is not the purpose of section 53 of the Act under which division of holding has to be carried out among all the co-tenants by metes and bounds. By dividing and setting apart share of only one co-tenant and leaving others undivided leaves scope for further litigation among the rest of the co-tenants whereas a dispute should be resolved and adjudicated upon in such a way that it leaves no scope and opportunity for further litigation on the same dispute with regard to the same land. It is also evident from perusal of the record of the trial Court that proposal for division has been prepared by Patwari; Tehsildar has simply forwarded it. The is irregular and cannot be allowed. Proposal for division of holding should be prepared according to metes and bounds following the provisions of Rules 18 to 21 of the Rules of 1955 by Tehsildar himself in his presence. However he can get help of other revenue functionaries, if considered necessary. Thus, the final decree issued is illegal and Revenue Appellate Authority has also committed error in subscribing to the final decree-without looking into the laid down procedure, relevant rules and concerned law. However he can get help of other revenue functionaries, if considered necessary. Thus, the final decree issued is illegal and Revenue Appellate Authority has also committed error in subscribing to the final decree-without looking into the laid down procedure, relevant rules and concerned law. Thus, we do not subscribe to the impugned judgments dated 15.4.05 of Revenue Appellate Authority Kota and 11.4.02 and 24.7.02 of Sub-Divisional Officer Jhalawar; as such appeal No. 3321/05 succeeds. 12. Resultantly appeal No. 4698/03 is dismissed and appeal No. 3321/05 is allowed. The impugned judgment dated 15.4.05, and judgment dated 11.4.02 and decree dated 24.7.02 of Sub-Divisional Officer Jhalawar are set aside. The case is remanded to Sub-Divisional Officer Jhalawar for preparing final decree keeping in view above observations. The proposal for division of holding among all the cotenants on merits and bounds should be prepared by Tehsildar in accordance with rules 18 to 21 of the Rules of 1955 in presence of all the parties. Thereafter Sub Divisional Officer should issue final decree affording opportunity of hearing to the rival parties.