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2016 DIGILAW 350 (RAJ)

Mamkori v. Board of Revenue

2016-03-02

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioners aggrieved against the judgment dated 13.11.1995 passed by the Board of Revenue, Rajasthan, Ajmer ('BOR'), whereby their second appeal against the judgment dated 26.3.1991 passed by the Revenue Appellate Authority, Bikaner ('RAA') has been rejected. 2. The respondents No. 3 to 5's father Khamu filed a suit for partition and correction of entries in the Court of Assistant Collector, Taranagar in the year 1981; it was inter-alia contended that the plaintiff and defendants belong to one family and their agriculture land is situated at old khasra No. 24 ad measuring 128.9 Bigha and whose new khasra numbers were 66 to 70, 73 ad measuring 100 Bigha 15 Biswa at Village Dhana Pata Satau. It was claimed that the plaintiff has ?rd share in the land in question and a decree for partition and declaration was sought. The defendants filed their written statement along with counter claim and submitted that they were in possession of land ad measuring 71 Bigha 9 Biswa by way of partition which took place long back and that they are cultivating the same. It was also submitted that plaintiff – Khamu is cultivating land ad measuring 31 Bigha and remaining 20 Bigha land is being cultivated by Gopal @ Gokul and based on the submissions made in the written statement/counter claim correction of entries was sought. 3. The trial court framed five issues and after evidence was led by the parties, it came to the conclusion that the land in question was divided long back amongst the parties and they were cultivating their respective portions; partition took place long back by metes and bounds; there was no plea of joint cultivation and based on its findings, the Assistant Collector rejected the suit and decreed the counter claim. 4. Feeling aggrieved, Khamu filed appeal before the RAA. The RAA after hearing the parties accepted the appeal and decreed the suit filed by Khamu and rejected the counter claim by its judgment and decree dated 26.3.1991. 5. In second appeal filed by the petitioners, the judgment of RAA was maintained and the appeal preferred by the petitioners was dismissed. 6. Feeling aggrieved, Khamu filed appeal before the RAA. The RAA after hearing the parties accepted the appeal and decreed the suit filed by Khamu and rejected the counter claim by its judgment and decree dated 26.3.1991. 5. In second appeal filed by the petitioners, the judgment of RAA was maintained and the appeal preferred by the petitioners was dismissed. 6. It is submitted by learned counsel for the petitioners that from the documentary and ocular evidence produced by the parties, the partition of land in question was proved, however, the RAA without discussing the documents and other material evidence decided the issues in favour of the respondents without adverting to the said documents and as such, the findings cannot be sustained. With reference to the documents Ex.-A/1 - an application submitted by the parties before the settlement authorities, it was claimed that there was a partition and land was being cultivated by the parties ever since; the application Ex.-A/1 is supported by Jamabandi and Khasra Girdawari and in terms of Section 53 of the Rajasthan Tenancy Act, 1955 ('the Act') a division of holding can take place by agreement between the co-tenants and therefore, the RAA and the BOR committed error in decreeing the suit and dismissing the counter claim. It was submitted that the petitioners are holding the possession of the land in question and were also paying the rent of the disputed land and as such, the partition was proved on record. It was emphasised that from Jamabandi of Samvat year 2011-18 (Ex.-A/3 & Ex.-A/4) from column 5, it is proved on record that the petitioners were in cultivatory possession of land ad measuring 71 Bigha 9 Biswa and Khamu was having cultivatory possession of land ad measuring 31 Bigha, which was in terms of the partition between the parties. 7. It was also submitted that the petitioners had acquired right by adverse possession. Another plea was raised that the RAA and BOR have ignored the fact that Narayan had gone in adoption. It was prayed that the judgments passed by the RAA and BOR be quashed and set-aside. 8. Reliance was placed on Kale and ors. v. Deputy Director of Consolidation and ors. : 1976(3) SCC 119 . 9. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioners. 10. It was prayed that the judgments passed by the RAA and BOR be quashed and set-aside. 8. Reliance was placed on Kale and ors. v. Deputy Director of Consolidation and ors. : 1976(3) SCC 119 . 9. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioners. 10. It was submitted that the RAA and the BOR have concurrently found in favour of the respondents and the findings recorded are findings of fact which does not call for any interference. 11. It was submitted that the land in question did not belong to Tiloka, the grand father of Ganesha and therefore, the fact that Narayan had gone in adoption is of no consequence; from the documents Ex.-A/3 and Ex.-A/4, it is clearly established that Balu and Khamu sons of Ganesha were having ?rd share in the land in question and Parmeshwar and Shrawan were having ?rd share in the land in question. Merely having cultivatory possession does not confer any title on the person cultivating the land; the so-called partition Ex.-A/1 is not proved at all and there is no question of adverse possession as claimed by the petitioners. It was submitted that both the authorities below considered all the issues raised by the parties and judgments impugned do not call for any interference. 12. Reliance was placed on Mst. Suja Bai v. Gopal Lal, 1967 RLW 135; Karbalai Begum v. Mohd. Sayeed and anr., AIR 1981 SC 77 and Ram Pratap v. LRs of Mansukhram and ors., 2007(2) RRT 1163. 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 14. A bare look at the pedigree produced by learned counsel for the petitioners reveals that Ganesha had three sons Balu, Narayan and Khema; Narayan went in adoption to Mansa son of Tiloka and the petitioners are legal representatives of Rameshwar and Parmeshwar both sons of Narayan. The foundational document for the land in question has been the Jamabandi for samvat year 2011-14 and Jamabandi for samvat year 2015-18, which were produced by the petitioners themselves as Ex.-A/3 and A/4. The foundational document for the land in question has been the Jamabandi for samvat year 2011-14 and Jamabandi for samvat year 2015-18, which were produced by the petitioners themselves as Ex.-A/3 and A/4. In the said Jamabandis in column 4, which pertains to the owner of the land in question, it is indicated as under:- ^^ckyw [kew filjku x.ks'kk cfgLlk cjkcj 2 frgkbZ ijes'oj o ljo.k filjku ukjk;.k cfgLlk cjkcj 1 frgkbZ dkSe dqEgkj fcjksM+hokl lk0 <+k.kh dqEgkjku** While in Column 5, which pertains to the name of cultivator the following has been indicated along with the area under their cultivation: ijes'oj o lj.k %& 17-9 ch?kk lqjtk xksiky %& 20 ch?kk [kew oYn x.ks'kk %& 31 ch?kk 15. From the above Jamabandi, it is apparent that ?rd land belong to Balu and Khamu and ?rd land belong to Parmeshwar and Shrawan sons of Narayan though they were in possession of land in excess of or less than their share and were cultivating the same. 16. The plea raised by the petitioners has been based on a prior partition between the parties as evidenced by Ex.-A/1, which is said to be an application made before the Settlement Officer, Bikaner on 17.11.1965, wherein it was indicated that Gokul son of Balu is entitled to 21 Bigha land and Khamu son of Ganesha is entitled to 31 Bigha land and rest of the land belongs to Parmeshwar and Shrawan and the parties agreed to the same. However, the validity and existence of the said document was denied by the plaintiff and though the Assistant Collector relied on the said document coupled with the cultivatory possession, the RAA and BOR came to the conclusion that the document was not a certified copy, the signatures were not proved and as such held against the petitioners. 17. Besides the fact that the document in question was not a certified copy, the signatures were not proved, the another important aspect of the matter is that even if the said document was produced before the Settlement Officer, the same was never acted upon as the Jamabandis Ex.-A/3 & A/4 are clearly reflective of the said position. Further the petitioners thereafter never sought correction in the Jamabandi and only when the suit was filed by Khamu seeking partition by metes and bounds, the counter claim was filed seeking correction in the revenue entries. Further the petitioners thereafter never sought correction in the Jamabandi and only when the suit was filed by Khamu seeking partition by metes and bounds, the counter claim was filed seeking correction in the revenue entries. As such, the existence and execution of the document having not been proved by the petitioners, the RAA and BOR were justified in ignoring the said document and in view of the revenue entries Ex.-A/3 & A/4 and undisputed fact that Balu, Khamu and Narayan had ?rd share each in the land in question, the suit filed by Khamu was rightly decreed by the RAA and upheld by the BOR. 18. So far as the plea raised by the petitioners regarding Narayan having gone in adoption to Mansa is concerned, this is nobody's case that the land in question originally belonged to Tiloka so as to support the petitioners' claim of ½ share in the land in question, based on the facts that Tiloka had two sons Tara and Mansa and Ganesha, the father of Balu, Khema and Narayan was the only son of Tara, as such, the fact of Narayan going in adoption to Mansa is of no consequence. 19. The theory of adverse possession sought to be propounded by the petitioners based on their cultivatory possession of the land in question is also without any basis as it is well settled that merely by exclusive enjoyment of portions of the property by co-owners does not make their possession as adverse unless the ouster is proved, even if the possession is exclusive. Admittedly, Khamu is in possession of part of the land to which the petitioners are co-tenants and therefore, the plea of adverse possession has not basis. 20. The Hon'ble Supreme Court in the case of Karbalai Begum (supra) held as under:- “It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co-sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. The learned counsel appearing for the respondent was unable to contest this position of law. In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff.” 21. So far as cultivatory possession of the petitioners is concerned as reflected by Ex.-A/3 & A/4, as already noticed herein-before, the Jamabandis clearly reflected the share of Khamu and Balu as ?rd and that of Parmeshwar and Shrawan as ?rd. It has been rightly held by the RAA and BOR that mere cultivatory possession does not confer title over the land. The Division Bench of this Court in the case of Rampratap (supra) also came to the conclusion that mere possession of land cannot give khatedari rights to a person in possession. 22. So far as the judgment cited by learned counsel for the petitioners is concerned, the principle laid down in the case of Kale and ors. (supra) that family arrangement can be inferred from the conduct of the parties, has no application to the facts of the present case as the petitioners have failed to prove prior partition and the fact that they were in possession of the land in pursuance to such partition contrary to the indication made in Jamabandis Ex.-A/3 & A/4. In view of the above discussion, there is no substance in the writ petition, the same is, therefore, dismissed.