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2010 DIGILAW 845 (RAJ)

Ganpat Lal v. Birdu

2010-04-15

G.K.TIWARI, RAKESH HOOJA

body2010
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 20.9.06 of Revenue Appellate Authority Jaipur. 2. Briefly stated, the facts of the case are that the respondent No. 1 - plaintiff filed a suit under Section 88 and 188 of the Act against the appellants and respondent No. 2 to 8 defendants in the court of Sub-Divisional Officer Chomu (District Jaipur) who allowed the suit and issued decree by his judgment dated 28.6.05 which was challenged in first appeal under Section 223 of the Act before Revenue Appellate Authority Jaipur who dismissed the appeal and upheld the judgment and decree of the trial court by his impugned judgment dated 20.9.06, aggrieved against which the instant second appeal is preferred in this court. 3. We have heard the learned counsels of both the parties. 4. The learned counsel for the appellants has pleaded that the disputed lands are ancestral land of which both the parties are co-tenants but during the settlement, the Settlement Department carried out partition of the land beyond its jurisdiction. Not only this partition was done illegally but respondent plaintiff was given two-fifth share of the land whereas all the co-tenants of the suit land have equal one-fifth shares in the disputed lands. After such an illegal act of the Settlement Department, the plaintiff filed a suit for declaration of khatedari right in the lands which are in possession and in khatedari right of the appellants; and Sub-Divisional Officer illegally decreed the suit under section 88 of the Act. Revenue Appellate Authority has erroneously concurred in the judgment of the trial Court. Revenue Appellate Authority did not look into the legality of the act of partition carried out by the Settlement Department beyond its jurisdiction. There is no evidence on record to show that any additional share in the land of co-tenancy was every legally and formally given by any co-tenant to the plaintiff-respondent. Thus, the judgment of both the lower courts are erroneous and illegal and as such should be set aside. 5. Opposing the contentions of the appellants, the learned counsel for the respondent contended that the appellants themselves have admitted that the plaintiff-respondent has two-fifths share in the disputed land of co-tenancy. Thus, the judgment of both the lower courts are erroneous and illegal and as such should be set aside. 5. Opposing the contentions of the appellants, the learned counsel for the respondent contended that the appellants themselves have admitted that the plaintiff-respondent has two-fifths share in the disputed land of co-tenancy. The division of the co-tenancy-lands was done by the Settlement Department on the mutual agreement of both the parties; but the appellants are now questioning the partition which was effected consensually. Since the appellants have illegality occupied the western side of the disputed land, so the trial Court and Revenue Appellate Authority have not committed any error and illegality in declaring the plaintiff-respondent as khatedar tenant of the western side of the disputed lands. So, there is no force in the appeal which should be dismissed. 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 are the lands of co-tenancy. There are five co-tenants of the suit land Heera (deceased), Nanga, Shyonath, Gopi and Birdu (plaintiff). It is alleged that a co-tenant Gopi (deceased) gave his share of lands to the plaintiff-respondent. But how and in what manner was this share of Gopi (deceased) given to plaintiff-respondent is not made out. There is neither any gift deed nor any sale deed nor any will nor any instrument purported to transfer the share of Gopi to plaintiff-respondent in the disputed lands. So the claim of the plaintiff-respondent to have two-fifths share in the disputed lands of co-tenancy which is recorded equally in the khatedari right of five co-tenants, is unsubstantiated and unproved. Additionally, the trial court and first appellate court of Revenue Appellate Authority has discovered that the land of co-tenancy was divided among the co-tenants by the Settlement Department; but neither the Sub-Divisional Officer nor Revenue Appellate Authority has examined the legality of such division of holdings carried out by the Settlement Department. Division of holdings of co-tenancy rights is a function of a court of Assistant Collector, to be exercised under Section 53 of the Act. No officer of Settlement Department has any right under Section 53 of the Act to carry out division/partition among the recorded co-tenants even if such co-tenants allegedly agree in such division. Division of holdings of co-tenancy rights is a function of a court of Assistant Collector, to be exercised under Section 53 of the Act. No officer of Settlement Department has any right under Section 53 of the Act to carry out division/partition among the recorded co-tenants even if such co-tenants allegedly agree in such division. No illegal act can be done by any officer on the basis of alleged agreement or consensus of both the parties. Division of agricultural holdings is done in a competent revenue court where, on the basis of pleadings of rival parties, necessary issues are framed, evidence led and thereafter preliminary and final decree are issued for the proper division of the disputed lands of co-tenancy; but this process of law seems to have been given a go-by and both the lower courts have shut their eyes to this apparent illegality committed by the Settlement Department. Needless to emphasise that the Settlement Department cannot change entries in the existing revenue record and the act of Settlement Department in making division of holdings among the co-tenants is patently beyond its jurisdiction as has consistently been held by this court as well as Hon'ble Rajasthan High Court, umpteen number of times - e.g. in 1997 RRD 13(a), 2003 RBJ 118, 2008(1) RRT 151 (HC) : RLW 2007(2) RJ 1226 (HC) and 2009 RBJ 579 : RLW 2009(2) RJ 778 which are only a few of the citations to drive the point home. 8. The suit filed by the plaintiff for declaration of khatedari right in the western side of the disputed lands in again, in fact, an effort to further divide the land under the garb of declaration of the right. Whether a co-tenant is entitled to the left side of the disputed land or right side of the disputed land, can be done only in the final decree issued under Section 53of the Act, wherein site report of Tehsildar is summoned as per provisions of Rules of 18 to 21 of the Rajasthan Tenancy (Board of Revenue) Rules 1955 subsequent to grant of a preliminary decree in this regard. This cannot be done casually and cavalierly in a declaratory suit which basically, in this case, is an off-shoot of dispute of the partition which was illegally carried out by the Settlement Department. 9. This cannot be done casually and cavalierly in a declaratory suit which basically, in this case, is an off-shoot of dispute of the partition which was illegally carried out by the Settlement Department. 9. In view of the foregoing discussion the concurring judgments of both the lower courts are patently illegal and as such deserve to be quashed. The judgment dated 20.9.06 of Revenue Appellate Authority Jaipur and judgment and decree dated 28.6.05 of Sub-Divisional Officer Chomu are set aside. The parties are free to effect division of the lands of their co-tenancy as discussed above by filing a suit for division of holdings under Section 53 of the Act before the competent revenue court of jurisdiction. Pronounced.