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2019 DIGILAW 2990 (RAJ)

Omprakash v. Jayprakash

2019-12-13

ASHOK KUMAR GAUR

body2019
JUDGMENT Ashok Kumar Gaur, J. - The instant writ petition has been filed by the petitioners challenging the order dated 20th September, 2019 passed by the Board of Revenue, whereby the revision petition filed by the respondent has been allowed and the order dated 14th March, 2019 passed by the Revenue Appellate Authority, Alwar, has been set aside. 2. Brief facts of the case are that the respondent - Jayprakash, who is brother of the petitioner No.1, filed a suit for declaration, permanent injunction and partition before the Sub-divisional Officer, Neemrana, District Alwar. The respondent also filed an application under Section 212 of the Rajasthan Tenancy Act, 1955 (for short "the Act of 1955") for seeking temporary injunction. The Court of SDO, vide order dated 12th June, 2018, after hearing the parties directed that both the parties will maintain status quo with regard to possession and the revenue record. 3. The said order dated 12th June, 2018 was challenged by the petitioners before the Revenue Appellate Authority, Alwar. The appeal of the petitioners was allowed and order of the SDO was set aside. The Appellate Court found that since there was a compromise between the parties and further, division has not taken place and as such, direction to maintain status quo with regard to possession and revenue record was not justified and the temporary injunction, which was granted by the SDO Court, was not proper and as per law. 4. The order passed by the Revenue Appellate Authority dated 14th March, 2019 was put to challenge before the Board of Revenue by the respondent. The Board of Revenue has found that the issue with regard to partition and subsequent alienation during pendency of the suit, may create third party right and as such, the order passed by the SDO, Neemrana was maintained and the order of the Revenue Appellate Authority was set aside. 5. Learned counsel for the petitioners submitted that the Board of Revenue has committed illegality while allowing the revision petition in as much as the order passed by the Revenue Appellate Authority did not require any interference, as the Appellate Authority has kept in mind the compromise, which was already acted upon between the parties and further, the partition had not taken place and as such, the Revenue Appellate Authority had rightly given its finding while setting aside the order of the SDO, Neemrana. 6. 6. Learned counsel further submitted that in the matter relating to partition and injunction, the Courts should not pass the injunctions and Section 212 of the Act of 1955 does not envisage the situation of creating right in favour of a particular person to maintain status quo when such person has exclusive right to use the property. 7. Learned counsel for the petitioner has also placed reliance on a judgment passed by the Principal Seat at Jodhpur in the case of Khema & Ors. Vs. Shri Bhagwan & Ors., (1995) 3 WLC(Raj) 440 . 8. On the strength of said judgment, learned counsel submitted that if the Khatedar-tenant is an owner of share in ancestral property, no restriction can be placed with regard to transfer of the land falling in the share of a particular Khatedar-tenant and as such, other co-sharers cannot ask for division of holding by metes and bounds, so long the share of that person is in his exclusive possession. 9. I have considered the submissions made by learned counsel for the petitioners and perused the record of the case. 10. This Court finds that the SDO Neemrana, while passing the order dated 12th June, 2018, had kept in mind that the parties should maintain status quo with regard to possession and the evenue record and the main suit with regard to declaration, partition and permanent injunction, was to be decided later on. 11. This Court further finds that the Revenue Appellate Authority, while allowing the appeal of the petitioners, prima facie came to the conclusion that each of the co-sharers was entitled for 1/3rd share, as per the compromise dated 29th September, 2015. 12. This Court finds that if there is a dispute with regard to partition and as no final decree is passed in respect of the share of each co-sharer, the Court below has to maintain the status quo with regard to the possession of parties. 13. This Court further finds that the Board of Revenue has kept in mind the creation of third party rights during pendency of the suit and as such, it has upheld the order passed by the SDO, Neemrana and has set aside the order of the Revenue Appellate Authority. 14. The reliance on the judgment passed by the Principal Seat at Jodhpur in the case of Khema & Ors. 14. The reliance on the judgment passed by the Principal Seat at Jodhpur in the case of Khema & Ors. (supra), this Court finds that the Court was considering the issue of cancellation of the registered sale deed by a competent Civil Court and further, issue of court fee was to be raised at the relevant time. This Court finds that the said judgment, is of no assistance to the petitioners. 15. This Court finds that the present writ petition is absolutely frivolous petition and accordingly, the same is dismissed.