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2018 DIGILAW 1261 (RAJ)

Rameshwar v. Board Of Revenue

2018-05-11

K.S.JHAVERI, VIJAY KUMAR VYAS

body2018
JUDGMENT 1. By way of this appeal, the appellants have assailed the judgment and order of the learned Single Judge dt. 12.2.2008 whereby learned Single Judge has dismissed the writ petition which has been filed against the order of Board of Revenue and confirmed the order of the authorities. 2. Counsel for the appellants has raised following contentions which reads as under:- 2.1 The provisions relevant for decision of this case are Section 15 and 19 of Rajasthan Tenancy Act. Relevant portions of which are quoted below:- Section 19 - Conferment or rights on certain tenants of Khudkasht and sub-tenants:-(1) Every person who, at the commencement of this Act,- (a) was entered in the annual registers then current as a tenant of Khudkasht or subtenant of land other than gove land, or (b) was not so entered but was a tenant of khudkasht or sub-tenant of land, other than grove land, shall, as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1959, hereinafter in this Chapter referred to as the appointed date, become, subject to the other provisions contained in this chapter, the khatedar tenant of such part of the land held by him. Section 15- Khatedar tenants 1. Subject to the provisions of Section 16 and clause (d) of sub-section (1) of section 180- Every person who, at the commencement of this Act, is a tenant of land otherwise than as a sub-tenant or a tenant of Khud Kasht or who is after the commencement of this Act admitted as a tenant otherwise then as a sub-tenant or a tenant Khud Kasht or an allottee ... Thus under Section 15 persons who are recorded as tenants at the time Rajasthan Tenancy Act came into force (15.10.1955) and persons who are admitted as tenants after commencement of the Act are recognized as khatedar tenants. Sub-tenants are specifically excluded. Section 5(43)- Tenant shall mean the person by whom rent is, or, but for a contract, express or implied would be payable. 2.2 Plaintiffs Pratap and Panchu filed a suit for declaration of khatedari rights and permanent injunction in 1967 in respect of 27 Bighas land of Khasra No.113 to 118 and 165 (Old Numbers 72-78 and 133). It was inter-alia stated in para 2 that they are cultivating the land for long and paying land revenue. 2.2 Plaintiffs Pratap and Panchu filed a suit for declaration of khatedari rights and permanent injunction in 1967 in respect of 27 Bighas land of Khasra No.113 to 118 and 165 (Old Numbers 72-78 and 133). It was inter-alia stated in para 2 that they are cultivating the land for long and paying land revenue. In para 3 it was stated that for this reason they are khatedar of the land. In para 4 it was stated that they are in cultivatory possession. In para 5 it was stated that the defendant no.1 is recorded as khatedar of the land which they came to know from Patwari. In para 7 it was mentioned that the defendants have been wrongly entered as khatedars in conspiracy with the officers. In para 8 it was stated that the defendant no.1 has sold the land to defendant no.2 and 3 by registered sale deed. Thus it is clear that it was never pleaded (1) that the plaintiffs are recorded khatedars on the date the Tenancy Act came into force or that they have been admitted as tenant after coming into force of the Act. (2) It was also never pleaded that they are sub-tenants of defendant no.1. 2.3 In the written statement it was inter-alia stated that the plaintiffs were never kept as sub-tenants. Rather it was stated that the defendant no.1 has been getting the land cultivated through defendant no.2 - Ram Pratap by keeping 'Hali' (servants). It was stated that defendant no.1 was khatedar and he wanted to sell the land and has actually sold to defendant no.2 by registered sale deed dated 01.03.1967. It was stated in para 6 that the plaintiffs came to defendant no.1 to purchase the land for Rs.4,000 but since they offered much less amount the land was sold to defendant no.2 & 3. Annoyed of it they have filed the suit. The plaintiffs also gave notice through their advocate by registered post (inland letter) on 25.01.1967 to defendant no.1 stating that there was agreement between the plaintiff and defendant was called upon to execute the sale deed. (The notice has been proved by the advocate Shri R.P. Gupta who was summoned in evidence). Annoyed of it they have filed the suit. The plaintiffs also gave notice through their advocate by registered post (inland letter) on 25.01.1967 to defendant no.1 stating that there was agreement between the plaintiff and defendant was called upon to execute the sale deed. (The notice has been proved by the advocate Shri R.P. Gupta who was summoned in evidence). 2.4 On 16.3.91, the Assistant Collector decreed the suit with observations that "isi karan se rajasthan Tenancy Act ke lagu ke din vadigan bhumi pe bator kashtkar kabij the or ve hak khatedari prapt karne ke adhikari dhara 15 v 19 ke tahat hai" Thus the suit was decreed on the basis of Section 15 as well as Section 19 whereas Section 15 relates to recorded tenant and Section 19 provides for acquiring khatedari rights by a sub-tenant recorded as such on commencement of the Tenancy Act. Both are mutually exclusive and inconsistent. There is no pleading and finding that plaintiffs were recorded as tenants on the date Tenancy Act came into force. There is no pleading that plaintiffs were sub-tenants on the date Rajasthan Tenancy Act came into force and therefore entitled to acquire khatedari rights. The trial court did not give any finding about notice Ex.A-2 given by the plaintiffs through their advocate by registered post for getting sale deed registered in their favour for purchasing the land. It has been totally ignored. 2.5 On 12.8.94, the Revenue Appellate Authority observed that plaintiffs were in possession as per Khasra Girdawari of Samvat 2009 to 2012 and therefore they are entitled to khatedari rights under Section 15. Further held that although the plaintiffs have not been recorded as sub-tenants but defendant Ganesh (purchaser) has admitted that Pratap was his Hali (servant). The Revenue Appellate Authority observed as under 2.6 Thus the Revenue Appellate Authority has invoked Section 15, in the alternative Section 19 or adverse possession for conferring khatedari rights on the plaintiff. Whereas Section 15 is not attracted as neither plaintiffs were recorded as tenants on commencement of the Act nor they were admitted as tenants or allotted land after commencement of the Act. Section 19 is not applicable as it was never the case of the plaintiffs that they were sub-tenants. Adverse possession was never pleaded. Whereas Section 15 is not attracted as neither plaintiffs were recorded as tenants on commencement of the Act nor they were admitted as tenants or allotted land after commencement of the Act. Section 19 is not applicable as it was never the case of the plaintiffs that they were sub-tenants. Adverse possession was never pleaded. Rather the plea of adverse possession presupposes title of the opposite party i.e. they admit the defendant to be khatedar (plea of adverse possession cannot be taken by plaintiff). Thus all the three things are totally different and inconsistent. The averment with regard to notice (Ex. A-2) was noted at page 81 but no finding has been recorded. 2.7 On 16.3.01, Board of Revenue dismissed the appeal with the following observation:- 2.8 On 12.2.08 Learned Single Judge dismissed the writ petition. No finding has been recorded independently. It has been observed that learned courts below have concurrently recorded finding on the question of possession of the plaintiff/respondents. All the courts have held that the plaintiff/respondents were in possession in Samvat 2012 i.e. 15.10.55 when Rajasthan Tenancy Act was enforced. Even if the plaintiffs are accepted as Hali/shikmi of the predecessor in title of the petitioners the learned courts held that they would still be entitled to khatedari rights by virtue of Section 19. Thus Hali and Shikmi have been treated as synonymous whereas Hali is a servant and Shikmi is a sub-tenant. It is not the case of the plaintiffs that they were sub-tenants as on 15.10.55. Mere possession is neither sufficient for Section 15 nor for Section 19, even rent receipts which have been referred are of 1959, 1961, 1962 and 1964 which are after the Tenancy Act came into force. All the rent receipts are in the name of Ganesh Ram. 2.9 The following documents show khatedari rights of the defendant no.1 and his predecessor:- Register Chakbandi Samvat 1994 to 2003 (Year 1939 to 1946) Ex. 3 Khatauni Bandobast Samvat 2015 to 2034 (Year 1958 to 1977) Ex. 4,5,6 Dhal Banchh- Samvat 2015, 2017, 2019 (Ex. A-5, A-6, A-7) Jamabandi 2017-2022 (Ex.D-2) Girdawari Samvat 2009-2012 Girdawari Samvat 2015-2017 Girdawari Samvat 2018-2019 (The Patwari in his statement has clearly said that the name of plaintiffs does not exist in original Khasra Girdawari of Samvat 2009-2012. 3 Khatauni Bandobast Samvat 2015 to 2034 (Year 1958 to 1977) Ex. 4,5,6 Dhal Banchh- Samvat 2015, 2017, 2019 (Ex. A-5, A-6, A-7) Jamabandi 2017-2022 (Ex.D-2) Girdawari Samvat 2009-2012 Girdawari Samvat 2015-2017 Girdawari Samvat 2018-2019 (The Patwari in his statement has clearly said that the name of plaintiffs does not exist in original Khasra Girdawari of Samvat 2009-2012. 2.9 The contention of the appellants is that the judgments of the authorities and learned Single Judge are vitiated on following grounds:- (a) Not appreciating the scope of Section 15 which applies to a person recorded as tenant as on 15.10.1955. In support of his contention, he has relied upon the following judgments:- In Nandlal & ors. vs. Board of Revenue & ors. reported in 2000 (1) RLR 416 , it has been held as under:- 13. In the case at hand, the petitioners claimed themselves to be khatedar tenants on the basis of their alleged possession according to the khasra Girdawari of Samwat Year 2009 to 2014. In my considered view, Khasra Girdawari is not a record of rights as rightly held by the Board of Revenue in its judgment (Ann.3) and this does not confer any title or khatedari rights to him, and no such rights accrue to the petitioner on the basis of long or continuous possession or Khasra Girdawari. Even by mere possession, khatedari rights cannot accrue to the petitioners as they have/had to establish which they have failed to do so as rightly held by the Board, that they were admitted as tenants after the commencement of the Tenancy Act or they had acquired Khatedari rights by operation of law. The petitioners have never proved to have paid rent by producing rent receipts, and jamabandi etc. I do not find any justification for taking contrary view arrived at by the Assistant Collector and the Board. The petitioners have never proved to have paid rent by producing rent receipts, and jamabandi etc. I do not find any justification for taking contrary view arrived at by the Assistant Collector and the Board. Both the trial court and the Board on the basis of the evidence on record have rightly held that the petitioners had never been recorded and acquired khatedari rights of the land in dispute and on the other hand jamabandi of Samvat Year 2014 (Ann.R4) proved the land in dispute having been recorded/entered as Siwai Chak in Samvat Year 2014 itself and therefore, out of 40 bighas of land in dispute, 28 bighas of land of Khasra No.53 were allotted to respondent No.4 to 10 who were landless persons on 18.9.75 by giving possession thereof to them on 26.9.75 and balance land of Khasra No.53 remained as Siwai Chak. This position has not been challenged for the first time in the year 1976 when Siwai Chak land as aforesaid was allotted to the respondent No.4 to 10 after declaring and reversing the land as pasture land, the petitioners filed suit u/s 88,89 and 188 of the Tenancy Act which was rightly dismissed by the trial court. The petitioners failed to prove that they have been in possession of Khatedari rights over the land in dispute of Khasra No.53 as tenant and they have been admitted to the tenant by the land holders (State Government in their case) since Samvat Year 2012. They further, failed to prove that they have paid rent as tenant to the State Government. Therefore, the petitioners do not fulfill pre-requisite conditions so as to acquire khatedari rights and to be admitted as tenants of the land of khasra No.53 in dispute as contemplated in Sections 13, 15 & 19 of the Tenancy Act. Hence this writ petition must fail. In Rambhool Singh vs. The State 1962 RLW 406 , it has been held as under:- 5. The first point for determination in this writ petition is whether Ghisa acquired the khatedari right under Sec. 15 of the Act. From the facts and circumstances narrated above it is clear that Ghisa had been dispossessed from the land in dispute on the 27 th July, 1952 after the expiry of the period of lease. We may take it for the purposes of this case that he was dispossessed forcibly. From the facts and circumstances narrated above it is clear that Ghisa had been dispossessed from the land in dispute on the 27 th July, 1952 after the expiry of the period of lease. We may take it for the purposes of this case that he was dispossessed forcibly. Nonetheless the fact remains that he was no longer in possession of the filed after 27 th of July 1952. Subsequently he obtained possession of the land on the 20 th September, 1955 in execution of the order of reinstatement passed in his favour by the Sub Divisionsal Officer. This Court, however, quashed this order as it was based on the erroneous view of land that Ghisa was entitled to a relief u/s 7 of the Ordinance. The order of the Sub Divisional Officer for reinstatement and the subsequent order of the Board of Revenue confirming the order of the Sub Divisional Officer were in the view of this court based on the wronginterpretat on the notification referred to this above. Had these two orders not been passed Ghisa would not have been put in possession of the land in dispute. Both these orders having been quashed by this Court Ghisa could not rely on the possession obtained under these orders for deriving benefit u/s 15 of the Act. These orders could not confer any benefit on Ghisa to the disadvantage of the petitioner. The well-known principle of law is that the acts of the court should not be construed to the disadvantage of any of the parties. In Rodger vs. Comptoir D. Escompte de Paris(2), Lord Cairns observed:- One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors and when the expression "the act of the Court" is used it does not mean merely the act of the primary court or of any intermediate Court of appeal but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter to the highest court which finally disposes of the case." As an illustration of this principle of law we may refer to Dagdu & ors. vs. Kalu in which the facts were that in a suit brought to recover possession of certain land the defendant pleaded limitation. vs. Kalu in which the facts were that in a suit brought to recover possession of certain land the defendant pleaded limitation. He had held possession of the land adversely to the plaintiff from 1881 upto the 2 nd October 1895 when the suit was brought with the except of a period of three years (viz 4 th April, 1892 to 9 th April, 1895) during which he was dispossessed under a decree of Civil Court of first instance obtained against him by a third person, which being reversed in appeal he was restored to possession on the said 9 th April, 1895. It was held that the wrongful possession given by the Court to a third person did not (after possession had been restored to the defendant) prevent the statue from running during its continuance against the plaintiff and in favour of the defendant. This case was followed by this court in Mst. Asa Bai vs. Prabhu Lal & ors. We therefore of the opinion on the 15 th Oct. 1955 when the Rajasthan Tenancy Act came into force Ghisa was not in possession of the disputed land as a tenant and he cannot take advantage of that provision. The Board of Revenue has wrongly held that khatedari rights came to be conferred on Ghisa u/s 15 of the Act as he was tenant of the land in dispute on 15 th Oct. 1955. Ghisa cannot therefore claim possession of the disputed land on the groundthat he had become a khatedar tenant of land. (b) Not appreciating that section 19 applies to a sub-tenant as on 15.10.55. This is not even case of plaintiffs that they were subtenants. Suit has been decreed beyond pleadings. (c) The scope of section 15 and 19 is mutually exclusive. Both cannot be applied at the same time. (d) The plea of adverse possession was never taken by the plaintiff. Even otherwise plaintiff cannot take plea of adverse possession and in this regard, he has relied upon the decision of Supreme Court in Gurudwara Sahib vs. Gram Panchayat Village Sirthala and Anr. (2014) 1 SCC 669 wherein it has been held as under:- 8. (d) The plea of adverse possession was never taken by the plaintiff. Even otherwise plaintiff cannot take plea of adverse possession and in this regard, he has relied upon the decision of Supreme Court in Gurudwara Sahib vs. Gram Panchayat Village Sirthala and Anr. (2014) 1 SCC 669 wherein it has been held as under:- 8. However, we also find from the reading of the judgment of the High Court that the High Court has refused the injunction observing that the Appellant was not entitled to the same as it is the Gram Panchayat which is the owner of the property in dispute and as the Appellant is in possession without any right, it has no right to seek injunction against the Gram Panchayat. This finding is totally perverse and, in fact, unnecessary. In the first instance, there was no occasion or reason for the Appellant's counsel to seek this prayer in the Second Appeal. As pointed out above, the relief of injunction had already been granted by the Civil Court and this portion of the decree had not been challenged by the Respondents. Decree to this extent in favour of the Appellant had attained finality. The First Appellate Court also specifically recorded this fact and observed that by not challenging the judgment and decree passed by the learned Civil Judge, the Respondents accepted that the Appellant was in adverse possession of the land since 13.4.1952. We, thus, clarify that observations of the High Court that the Appellant is not entitled to injunction, were unnecessary and beyond the scope of the appeal. 9. As the Appellant is in possession of the suit property since 13.4.1952 and has been granted the decree of injunction, it obviously means that the possession of the Appellant cannot be disturbed except by due process of law. We make it clear that though the suit of the Appellant seeking relief of declaration has been dismissed, in case Respondents file suit for possession and/or ejectment of the Appellant, it would be open to the Appellant to plead in defence that the Appellant had become the owner of property by adverse possession. Needless to mention at this stage, the Appellant shall also be at liberty to plead that findings of issue No. 1 to the effect that the Appellant is in possession of adverse possession since 13.4.1952 operates as res-judicata. Needless to mention at this stage, the Appellant shall also be at liberty to plead that findings of issue No. 1 to the effect that the Appellant is in possession of adverse possession since 13.4.1952 operates as res-judicata. Subject to this clarification, the appeal is dismissed (e) By plea of adverse possession impliedly title of opposite party stands admitted. 3. Counsel for the appellants has relied upon the following decisions:- In Binapani Paul vs. Pratima Ghosh and Ors. (2007) 6 SCC 100 , it has been held as under :- 39. We are also really not concerned with such a situation as the situation had undergone a sea change after coming into force of the Transfer of Property Act. The Transfer of Property Act prescribes that any clog on transfer of property right to transfer would be void. Dayabhaga does not prohibit gift of immovable property in favour of his wife by her husband. It merely says that Dayabhaga did not recognize it to be her stridhan. It was only for the purpose of inheritance and succession. The same has nothing to do with the Benami Transaction of the Property and to determine the nature of transaction. 40. Burden of proof as regards the benami nature of transaction was also on therespondent. This aspect of the matter has been considered by this Court in Valliammal (D) By LRS. v. Subramaniam and Ors. AIR2004SC4187 wherein a Division Bench of this Court held: 13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v. State of M.P. : 1977CriLJ566 , Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v. Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v. State of M.P. : 1977CriLJ566 , Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v. Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah. It has been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. (Jaydayal Poddar v. Bibi Hazra, SCC p. 7, para 6) 14. The above indicia are not exhaustive and their efficacy varies according to the facts ofeach case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia. 18. It is well settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original plaintiff did not have any justification for purchasing the property in the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of money is not at all traceable to the plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the plaintiff to examine the relevant witnesses completely demolishes his case. In T. Anjanappa and Ors. vs. Somalingappa and Anr. The reason given by him is not at all acceptable. The source of money is not at all traceable to the plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the plaintiff to examine the relevant witnesses completely demolishes his case. In T. Anjanappa and Ors. vs. Somalingappa and Anr. 2006 (7) SCC 570 , it has been held as under:- It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owners title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the formers hostile action. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable. Therefore, the appeal which relates to OS 168/85 is allowed by setting aside the impugned judgment of the High Court to that extent. Equally, the High Court has proceeded on the basis that the plaintiff in OS.286/88 had established his plea of possession. The factual position does not appear to have been analysed by the High Court in the proper perspective. Equally, the High Court has proceeded on the basis that the plaintiff in OS.286/88 had established his plea of possession. The factual position does not appear to have been analysed by the High Court in the proper perspective. When the High Court was upsetting the findings recorded by the court below i.e. first appellate Court it would have been proper for the High Court to analyse the factual position in detail which has not been done. No reason has been indicated to show as to why it was differing from the factual findings recorded by it. The first appellate Court had categorically found that the appellants in the present appeals had proved possession three years prior to filing of the suit. This finding has not been upset. Therefore, the High Court was not justified in setting aside the first appellate Court's order. The appeal before this Court relating to O.S. 286 of 1988 also deserves to be allowed. Therefore, both the appeals are allowed but without any order as to costs. The appeals are disposed of accordingly. In P. Periasami (Dead) by Lrs. vs. P. Periathambi and Ors. (1995) 6 SCC 523 , it has been held as under :- 3. The pristinely legal question, as discernible herein before, is whether under Hindu law selfacquired property of a father goes on his death to his sons (in the absence of grand-sons) in a joint Hindu family way, in joint tenancy, or does it descend by inheritance to them in well defined shares as tenants-in-common. On this question there has been grave conflict of opinion in the High Courts and a lot many precedent of binding value are available. In Madras, however, the law in this respect bears a strain, settled way back by a Full Bench in a decision reported in AIR 1921 8 Mad 168 Viravan Chettiar v. Srinivasachariar, wherein the following passage of relevance appears in the opinion expressed by Kumaraswami Sastri, J. So far as the text of the Mitakshara dealing with the rights of the sons in their father's selfacquisitions it has been decided by their Lordships of the Privy Council in Balwant Singh v. Rani Kishore (1898) 20 All. 267 : 25 I.A. 54 : MANU/PR/0024/1898 : 2 C.W.N. 273 : 7 Sar. 279 that the text. 267 : 25 I.A. 54 : MANU/PR/0024/1898 : 2 C.W.N. 273 : 7 Sar. 279 that the text. though immoveables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born and they who are yet unbegotten and they who are still in the womb, require the means of support. No gift or sale should therefore be made. is only a moral precept and not a rule of law capable of being enforced. As pointed out in Madan Gopal v. Ram Buksh (1863) 6 W.R. 71 and Jugmohandas Mangaladas vs. Sir Mangaldoss Nathubhoy (1889) 10 Bom. 528 the son acquires no legal rights over his father's self-acquisitions by .reason of the text of the Mitakshara (Ch.I, Ssl. 27) but that his right is imperfect one incapable of being enforced at law. It is difficult to see how there can be any coparcenary between the father and the sons as regards self-acquired property over which the sons have no legal claim or enforceable rights. Coparcenary and survivorship imply the existence of co-ownership and of rights of partition enforceable at law and ere moral injunction can hardly be the foundation of a legal right. As observed by the Privy Council in Rani Sartaj Kuari v. Deoraj Kuari (1888) 10 All. 272 : 15 I.A. 51 : 5 Sar. 139 the property in the paternal or ancestral estate acquired by birth under the Mitakshara Law is so connected with a right to partition that it does not exist where there is no right to it. A contention was raised during the course of the argument before the Privy Council in Raja Chelikant Venkayamma v. Raja Chelikani Venkataramanayamma (1902) 25 Mad. 678 : 29 I. A. 156 : 12 M.L.J. 299 : 8 Sar. 286 that sons acquire a right by birth in the fathers self-acquired property. Lord macnaghten observed that he did not quite understand what that right was and observed "He is his fathers son and if his father does not dispose of, it will come to him; but is it anything more than a Spes?" So far as a father's self-acquisitions are concerned, the son, though undivided , has only spes succession is and he stands in relation to that property in the same position as heir under Hindu Law. The very essence of the distinction between Apratibandha and Sapratibandha daya is the existence of an interest in the son in respect of properties got by his father, As observed by West and Buhler in a passage (Book 2 Introduction page 19) which was approved in Nand Kumar Lata v. Moulvi Reazuddeen Hussain 10 B.L.R. 183. ancestral property may be said to be co-extensive with the objects of apratibandha daya or unobstructed inheritance. (Emphasis supplied by us) 4. Contrary views have been expressed in Mst. Ram Dei v. Mst. Gyarsi MANU/UP/0230/1948 : AIR1949All545 and many other cases to which reference need not be made. In A.I.R. 3959 Madras 253, however, occasion arose to reconsider the above-referred to view of the Full Bench of the Madras High Court, but the learned Judges refrained from doing so for by then the Full Bench case of 1921 had been treated as stare decisis. Likewise after a lapse of more than half a century, we would not consider it prudent, just for the sake of uniformity to resolve the conflict raging in the High Courts on this question, more so when the orthodox Hindu Law on the subject is itself now in tumble because of the enactment of the Hindu Succession Act, 1956 and in particular of Section 19 thereof, which says that if two or more heirs succeed together to the property of an intestate they shall take the property- (a) save as otherwise expressly provided in this Act, per capita and not per stripes; and (b) as tenants-in-common and not as joint tenants. 5. In view of the interpretation put by the Full Bench of the Madras High Court that the sons in such a situation would get self acquired property of their father by inheritance, having the status as tenants-in-common, they could not thus treat such properties in their hands, even though joint in enjoyment, as joint Hindu family properties.Likewise the income derived therefrom, if employed to purchase other property, would not cloak the new acquisition with the character of joint Hindu family property but may otherwise be joint properties. We would rather decide this matter on this principle, and we do so accordingly, to hold that the properties which came from the elder, self acquired as they were, and there being no grandsons, cannot be held by the parties to be joint Hindu family properties but as joint properties simpliciter, capable of partition on that basis. 6. With regard to the accreted property, there is a reference in the judgment under appeal relating to some accounting; after recording the finding that the defendants have failed to prove that that property was in their adverse possession. This is a finding of fact which need not be disturbed, as it has been sought to, in the cross appeal. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The failure of the plea has obvious results. If the parties herein were coowners of that property and the said property had been purchased from the income derived from joint property, then obviously the same has to be accounted for as joint property and not as joint Hindu family property. It was like property jointly purchased by co-owners without attracting the rule of succession by way of survivorship. On this clarification, the judgment of the High Court is cleansed of the little vagueness about this particular which accidentally seems to have crept in while dealing with this aspect of the case. 4. Even otherwise larger bench of this Honble Court has held in Tara vs. State 2015 (3) WLC 548 that khatedari rights cannot be acquired by adverse possession holding as under:- 48. In order to summarize the answers, the questions framed by the Court and our decisions on the questions are stated as below:-- Question No. (iv) Whether any person can acquire right by adverse possession in the lands of aforesaid nature against the holder? Answer:--No person can acquire right by adverse possession in the lands which were resumed or are in the tenancy of the tenants as khatedars. The limitation applicable under the Rajasthan Tenancy Act, 1955 for filing suit for possession against the trespasser will be applicable. The Rajasthan Tenancy Act, 1955 being a Special Act, will prevail and the provisions of Section 27 of the Limitation Act will not apply for claiming adverse possession on such lands. 5. The limitation applicable under the Rajasthan Tenancy Act, 1955 for filing suit for possession against the trespasser will be applicable. The Rajasthan Tenancy Act, 1955 being a Special Act, will prevail and the provisions of Section 27 of the Limitation Act will not apply for claiming adverse possession on such lands. 5. The effect of notice Ex.A-2 sent by the plaintiffs to defendant no.1 for getting sale deed registered in their favour has been totally overlooked. 6. Concurrent finding- can be interfered and he has relied on the decision of the Supreme Court in Ramlal and Anr. vs. Phagua and Ors. (2006) 1 SCC 168 , it has been held as under :- 12. In our opinion, agreement to re-convey the property will not ipso facto lead to the conclusion that the sale is nominal and in view of the stand of defendant No. 8 as also of the fact that the property worth Rs. 700/has been purportedly sold for Rs. 400/-. We are of the considered opinion that the sale deed dated 01.12.1965 did not convey any title to defendant No. 8. It is well settled by catena of decisions that vendor cannot convey to the vendee better title than she herself has. 1) Mohan Lal v. Nihal Singh, AIR2001SC2942 In the instant case, the trial Court dismissed the suit for the reasons recorded therein on the basis of the record and oral evidence. The lower Appellate Court, as noticed earlier, has not considered oral and documentary evidence properly. The lower Appellate Court which is the final Court of fact mechanically confirmed the findings of the trial Court and upheld the judgment of the trial Court dismissing the suit. The High Court for the cogent and convincing reasons recorded in the judgment has rightly interfered with the concurrent findings of both the Courts. In our view, both the lower courts have concurrently erred in not appreciating the oral and documentary evidence properly and, therefore, the High Court is at liberty to re- appreciate the evidence and record its ownconclusion for reversing the orders passed by the lower Court. The judgment of this Court in the case of Mohan Lal v. Nihal Singh (Supra) cited by the learned counsel for the appellant will not be of any assistance to the appellant herein. 2) Thiagarajan and Ors. The judgment of this Court in the case of Mohan Lal v. Nihal Singh (Supra) cited by the learned counsel for the appellant will not be of any assistance to the appellant herein. 2) Thiagarajan and Ors. v. Sri Venugopalaswamy B. Koil and Ors., AIR2004SC1913 In the instant case, the High Court has framed a substantial question of law as extracted in paragraphs (supra). Learned counsel for the appellants submitted that the High Court has not framed any other substantial question of law at the time of hearing except framed at the stage of admission. Sub-section 5 of Section 100 says that the appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such a question. The proviso states that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is specified that the case involves such question. As could be seen from the High Court records, no attempt was ever made by counsel for the appellants to formulate any other substantial question of law at the time of hearing. Therefore, the case of Thiagarajan and Ors. v. Sri Venugopalaswamy B. Koil and Ors., (supra) is not applicable to the case on hand and is distinguishable on facts and law. 3) Manikkoth Narayani Amma and Ors. v.P.C. Kalliani Amma and Ors., : (2003) 9 SCC 245 4) Makhan Lal v. Asharfi Lal and Ors., [1997] 3 SCR 361 In view of our foregoing discussions, on facts and on law, we are of the opinion that these two judgments will not be of any aid or assistance to the appellant. 5) Smt. Indira Kaur and Ors. v. Sheo Lal Kapoor, AIR1988SC1074. 13. The above judgment was cited by the learned senior counsel appearing for respondent No.1 in regard to the scope of Article 136. In the above judgment, thisCourt in para 7 held that Article 136 does not expressly forge any fetters on the power of this Court to interfere with the concurrent findings of fact. v. Sheo Lal Kapoor, AIR1988SC1074. 13. The above judgment was cited by the learned senior counsel appearing for respondent No.1 in regard to the scope of Article 136. In the above judgment, thisCourt in para 7 held that Article 136 does not expressly forge any fetters on the power of this Court to interfere with the concurrent findings of fact. Though, this power has to be exercised sparingly but if and when the Court is satisfied that grave injustice has been done it is not only the right but also the duty of the Court to reverse the error and the injustice and to upset the finding notwithstanding the fact that it has been affirmed earlier. This Court also held that it is not the number of times that a finding has been reiterated that matters. What really matters is whether the findings is manifestly unreasonable and unjust one in the context of evidence on record. This judgment squarely applies to the case on hand. In the instant case, the High Court has rightly exercised its right and discharged its duty to reverse the error and removed the injustice done by the courts below. The High Court is right in exercising its duty, rightly so in interfering with an unreasonable and unjust findings by both the Courts below. 14. On a careful perusal of the materials on record, it will be clear that both the courts below did not appreciate the evidence on record both oral and documentary and, therefore, the findings arrived at by the High Court, in our opinion, does not call for any interference under Article 136 of the Constitution of India and the civil appeal deserves to be dismissed. 7. Entry in remarks column does not create any right and in support of his contention, he has relied on the decision of Supreme Court in Sonawati and Ors. vs. Sri Ram and Anr. AIR 1968 SC 466 , it has been held as under :- 4. It was not the case of Pritam Singh that he has acquired title to the land by transfer or by adverse possession. vs. Sri Ram and Anr. AIR 1968 SC 466 , it has been held as under :- 4. It was not the case of Pritam Singh that he has acquired title to the land by transfer or by adverse possession. Pritam Singh relied merely upon the entries in khasra for 1356 Fasli and his claim of possession of the land in Fasli 1359, and upon statutory consequences arising from the entries under s. 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951, and s. 3 of the U.P. Land Reforms (Supplementary) Act 31 of 1952. The U.P. Zamindari Abolition and Land Reforms Act 1 of 1951 was brought into force from July 1, 1952. By s. 20 certain rights were conferred upon persons whose names were recorded in the revenue records in respect of agricultural land. The material clause (b) of s. 20 on which reliance is placed reads as follows : "20. Every person who - (a). . . (b) was recorded as occupant - (i) of any land (other than grove land or lands to which section 16 applies) in the khasra or khatauni prepared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901, or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under clause (c) of sub-section (1) of section 27 of the United Provinces Tenancy (Amendment) Act, 1947, or (ii) . . ." 8. It is contended that during the pendency of the litigation the plaintiffs sold the subject land to Shri Gyanchand- respondent no. 22. The plaintiffs belong to schedule caste. Shri Gyanchand Agarwal is of general caste therefore the transaction was void being hit by Section 42 of Rajasthan Tenancy Act. Shri Gyanchand Agarwal, concealing the facts about castes got an order passed under Section 90B from JDA (respondent no.23). Appeal against the order is pending before Divisional Commissioner. 9. He has relied on the decision of the Supreme Court in Rajasthan Housing Board vs. New Pink City Nirman Sahkari Samiti Ltd. and Ors. (2015 ) 7 SCC 601 , it has been held as under :- 60. The High Court has rejected the application under Order 1 Rule 10 filed by the Khatedars. 9. He has relied on the decision of the Supreme Court in Rajasthan Housing Board vs. New Pink City Nirman Sahkari Samiti Ltd. and Ors. (2015 ) 7 SCC 601 , it has been held as under :- 60. The High Court has rejected the application under Order 1 Rule 10 filed by the Khatedars. In the facts of this case, particularly when the issue of violation of Section 42 of Rajasthan Tenancy Act was raised by the State Government and reference was also as to the award passed in 1982 in favour of Khatedars in which the Society was denied the right to receive compensation. Obviously, Khatedars were required to be heard as the adjudication of their right was involved in the matter to decide to whom the compensation is payable, and whether the Society was entitled to claim compensation on the basis of void transaction. It was also submitted before us that the Khatedars have sought reference Under Section 30 against the Society, that question can be decided in those proceedings. However, the factual matrix and its determination of the question as to entitlement of Society is necessary in the instant case, as such we have decided it. More so, the plight of downtrodden class of the Scheduled Castes Khatedars cannot be prolonged and considering the provisions which have been enacted for their protection, and the constitutional mandate, we are inclined to exercise our power to set at rest the dispute between the parties and hold that only Khatedars, in case some of them have died, their legal representatives would be entitled to receive the compensation which has been determined in the instant case. 61. In order to protect the interest of the Scheduled Caste persons, we further direct that the Society or other intermeddler, or power of attorney holder shall not be paid compensation on their behalf and the Collector/Land Acquisition Officer to ensure that the compensation is disbursed directly to the Khatedars or their legal representatives, as the case may be, and that they are not deprived of the same by any unscrupulous devices of land grabbers etc. Let the compensation be disbursed within a period of three months from today along with other permissible statutory benefits. 62. The direction issued by the High Court to grant 25% of the developed land is hereby set aside. Let the compensation be disbursed within a period of three months from today along with other permissible statutory benefits. 62. The direction issued by the High Court to grant 25% of the developed land is hereby set aside. The appeals preferred by the Rajasthan Housing Board and the Khatedars are allowed to the aforesaid extent and the remaining appeals are dismissed. Parties to bear their own costs as incurred. 9.1 He contended that it is also hit by principle of lis-pendence. 10. The main contention of counsel for the appellants Mr. Maloo is that provisions of Section 19 and Section 15 of the Rajasthan Tenancy Act, 1959 have not been properly considered and he has also raised other contention regarding written statement. 11. He also contended that learned Single Judge and all the authorities have committed serious error in coming to the conclusion that the appellants were sub tenant. 12. He has taken us to the original record more particularly pleadings which are taken by the plaintiff and written statement filed by the respondents which reads as under:- 13. He also taken us to the judgment of the first authority where the authority has framed the following issues:- 14. Thereafter, the Revenue Appellate Authority has observed as under:- 15. Thereafter, he has taken us to the order of Board of Revenue which reads as under:- "It was next contended that the existances of the entry in the Girdawari is not proof of its correctness. The point came up for decision is Mala vs. Board of Revenue (D.B.C. Writ Petition No.185 of 1953, decided on 1 st February, 1956) The case came up from Jaipur, and by reference to the revenue laws of the former jaipur State. Which were then in force, it was held that Khasra girdawari was an annual register, and the law laid down a presumption that the entries made therein were true." "So far as the grievance of the applicant on merits is concerned, the learned Counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would he which would convert rehearing of the original matter. Once such a prayer had been refused, no review petition would he which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not rebearing of an original matter. A repetition of old andoverruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases." 16. He has taken us to the order of the learned Single Judge wherein it has been observed as under:- Having heard the learned counsel for the petitioners and perused the impugned order and also the other material forming part of the record, I find that the learned courts below have concurrently recorded the finding on the question of fact of possession of the plaintiff- respondents. All the courts have already held that the plaintiff-respondents were in possession in Svt. 2012 i.e. 15.10.1955 when the Rajasthan Tenancy Act was enforced. Even if the plaintiffs are accepted as a hali/shikami of the predecessor in title of the petitioners, the learned courts held that they would still be entitled to khatedari rights by virtue of Section 19 of the Tenancy Act. The Courts also found that apart from the khasra girdawari aforesaid, the plaintiffs had produced the receipt of the land revenue for the year 1959, 1961, 1962 and 64 which proved their continued possession. The suit was filed as late as on 28.2.1967 and the petitioners claim to have purchased the said land on 1.6.1967. In view of the analysis made by all the courts below, especially when the suit has culminated into passing of decree in favour of the plaintiffs on the basis of finding of fact, I do not find any good reason to interfere with the order passed by the courts below, which in my view have not committed any such error of law as may be described as error apparent on the face of the record. The judgment of the Supreme Court relied by the learned counsel for the petitioner is distinguishable no facts and cannot be applied to the present case. 17. The judgment of the Supreme Court relied by the learned counsel for the petitioner is distinguishable no facts and cannot be applied to the present case. 17. He also relied upon certain documents which are tendered today which contains the notice which was given by the present respondent to purchase the land and he has taken a contrary stand. 18. We have heard counsel for the parties. 19. Before proceeding with the matter, it will not be out of place to mention that this intra court appeal is against summary dismissal of petition by the learned Single Judge in the year 2008 dt. 12.2.2008. 20. The learned Single Judge while dismissing the writ petition has substantially held that there is concurrent finding and in view of the decision of the Supreme Court in Smt. Sonawati & ors. vs. Sri Ram & anr. AIR 1968 SC 466 wherein it has been held that a person who has forcefully acquired the cultivatory possession cannot claim as a matter of right as against the Bhumidar of the land. The said case was made applicable to the present case and from the finding which has been arrived by the Board of Revenue which was not subject matter of any challenge before the learned Single Judge, therefore, in our considered opinion, the argument with regard to the provisions of Section 15 & 19 of the Rajasthan Tenancy Act cannot be sustained. Even otherwise, in our considered opinion, Section 19 of the Act while reading closely clause (b) will make it clear that it deals with the situation where claims are not of khatedar. 21. Taking into consideration the payment made by the present appellants and his possession, all the authorities have concurrently found that they are in possession and they have given the benefit of possession and for other certain evidence, the contentions are for the first time which were never canvassed before the Board of Revenue as per the finding of Board of Revenue which has material bearing on the matter which has been reproduced above. 22. The Board of Revenue has followed the decision of this court which was binding to them. In that view of the matter, we are in complete agreement with the view taken by the learned Single Judge and all other authorities. 22. The Board of Revenue has followed the decision of this court which was binding to them. In that view of the matter, we are in complete agreement with the view taken by the learned Single Judge and all other authorities. It will not be out of place to mention that appellants were not original khatedar and they have purchased the property after the suit filed by the present respondent before the competent authority. 23. In view thereof, the appeal stands dismissed.