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S.B. CIVIL WRIT PETITION NO.3912/1996
(Amar Singh & Anr. Vs. State of Rajasthan & Ors.)
Date of Order :: 18th February 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. R.S. Chundawat,for the petitioners.
Mr. Hemant Choudhary, Government Counsel.
....
BY THE COURT
The petitioner No.1 Amar Singh son of Udai Singh was
assessed for agricultural land ceiling under Chapter III-B of
the Rajasthan Tenancy Act, 1955 (‘the Act of 1955’) in respect
of 186 bighas and 17 biswas of the agricultural land situated
at Rajsamand. The Authorised Officer dealing with the said
matter, by his order dated 19.06.1976, observed that as on
25.02.1958, the assessee had 186 bighas and 17 biswas of
the land of which, 34 bighas and 15 biswas had been
transferred to the petitioner No.2 Jodh Singh son of Udai
Singh (brother of the petitioner No.1); and, while recognizing
such transfer under Section 30-DD of the Act of 1955, found
only 25 bighas and 12 biswas of the land liable to be acquired.
After coming into force of the provisions of the
Rajasthan Imposition of Ceiling on Agricultural Holdings Act,
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1973, the ceiling proceedings were re-opened by the State
Government under Section 15(2) thereof while observing that
the Authorised Officer was not right in recognising such
transfer of 34 bighas and 15 biswas of land. The re-opened
proceedings were taken up for consideration under Ceiling
Case No.5/1985 and were decided by the Additional Collector,
Rajsamand by the impugned order dated 18.10.1995
(Annex.6). The learned Additional Collector observed that the
petitioner No.1 though alleged to have given 34 bighas and 15
biswas of land to his brother Jodh Singh (petitioner No.2) in
Svt. Year 2015 but then, as on 24.02.1958, the land was
recorded only in the name of Amar Singh (petitioner No.1);
that if at all the land was transferred to Jodh Singh in the year
1958, necessary mutation would have been made in the
revenue records but it were not so and, on the contrary, the
Patwari and the Tehsildar reported as late as the year 1971
that there were no entries in relation to the alleged transfer. It
was further observed that when the land was recorded as on
24.02.1958 in the name of Amar Singh, it was not shown as to
how Jodh Singh had any right thereto; and that the story of
any partition having been made and thereby the land having
been given to Jodh Singh remained unacceptable because
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partition could have been effected only between the co-
sharers and Jodh Singh was not a co-sharer of the land in
question and because the consent of the land holder was not
obtained and the alleged partition was not in accord with
Section 53 of the Act of 1955.
The learned Additional Collector held that the alleged
transfer was made under an unregistered document only for
the purpose of avoiding the operation of the Ceiling Law and,
while refusing to recognise the same, directed acquisition of
the land beyond 30 standard acres.
The petitioner No.1 preferred an appeal against the
aforesaid order dated 18.10.1995 before the Board of
Revenue that came to be rejected by the impugned order
dated 29.06.1996. The learned Member of the Board
essentially endorsed the observations as made by the
Additional Collector and found that the transfer in question
could not be recognised. Aggrieved, the petitioners have
preferred this writ petition.
It has strenuously been contended by the learned
counsel for the petitioners that the subordinate Revenue
Authorities have acted illegally in refusing to recognise the
partition as effected between the petitioner No.1 and petitioner
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No.2. Learned counsel submitted that indisputably, the land in
question was an ancestral property of the petitioners but came
to be recorded only in the name of the petitioner No.1 and,
therefore, 34 bighas of land was given to the petitioner No.2 in
family partition and the petitioner No.2 otherwise did not
receive any land from his father’s property. Learned counsel
contended that the sons have equal right over the ancestral
property coming from their forefathers and in the
circumstances of the case, when the entire land coming from
the father got recorded only in the name of the petitioner No.1,
the parties have bonafide carried out family partition and there
was no reason that the same was not to be given due
recognition. Learned counsel has referred to and relied upon a
decision of the Hon’ble Supreme Court in the case of
Digambar Adhar Patil Vs. Devram Girdhar Patil & Anr.: AIR
1995 SC 1728 that for the purpose of a legal partition, it was
not necessary that it should be effected only by a registered
deed; and even a family arrangement is enough to effectuate
the partition between coparceners. The learned Government
Counsel has duly supported the orders passed by the
Revenue Authorities.
Having given a thoughtful consideration to the
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submissions as made by the learned counsel for the
petitioners, this Court is clearly of the opinion that the writ
petition remains totally bereft of substance and deserves to be
dismissed.
It remains an undeniable position that as on
24.02.1958, the land in question was recorded only in the
name of petitioner No.1; and as late as the year 1971, the
Patwari and the Tehsildar reported that the land was recorded
only in the name of petitioner No.1. It appears that the story of
the alleged partition was put forward only in order to avoid the
agricultural land ceiling and else, when the parties were
aware, way back in the year 1958 itself, that the land had been
recorded only in the name of the petitioner No.1, nothing
prevented them from seeking appropriate declaration from a
competent Court, if at all the petitioner No.2 had any right in
the land in question. The story of partition having been made
in the year 1958 (Svt. Year 2015) neither inspires confidence
nor could be given any credence.
It has rightly been observed by the Revenue Authorities
that there was no question of any partition having been
effected between the petitioners for the simple reason that the
partition could be brought out only between or amongst the co-
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sharers. The petitioner No.2 who was never recorded as a
tenant cannot be conceded a right to claim the land by way of
partition unless his rights were adjudicated upon and
pronounced by a competent Court. Moreover, at the relevant
time, the suggested partition of agricultural land holding could
not have been brought about without the consent of the land
holder; and in the present case, the petitioners have failed to
show if such a consent was ever obtained from the Tehsildar
concerned.
There is another weird suggestion available on record
that is enough indicative of the attempt on the part of the
petitioners to somehow avoid agricultural land ceiling and that
is seen in the affidavits (Annexs.4&5) as allegedly filed by the
petitioners before the Competent Authority on 01.06.1971
wherein, apart from alleging that 34 bighas and 16 biswas of
land was given by the petitioner No.1 to the petitioner No.2, it
was further alleged that the petitioner No.1 gave away another
60 bighas of land to his uncle Khuman Singh! Though such
an aspect relating to the uncle of the petitioners and any land
having been given to him has not otherwise been pressed into
service in the later proceedings but it appears that by making
such suggestions, the petitioner No.1 wanted to assert before
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the authorities that he was in possession of only 91 bighas
and 15 biswas of land so as to altogether avoid the operation
of the Ceiling Law.
Para 3 of the aforesaid affidavit as filed by the petitioner
No.1 (Annex.5) gives out a strange state of affairs and reads
as under,-
“3. म शपथ परक न रद करत ह कक उक मर
ख त क भमम म स ज मर पपत क म स मर म
दज हई जजसम स मर सग छ ट भ ई श’ ज धमसहज’
क सरत ) २०१५ म आ. . २१ रकब १९///) १ लग ‘
६//) र आ. . ४ रकब १५) ब’घ लग ‘ ५// כֿर मर
सग क क स हब श’ खम णमसहज’ पपत र गमसहज’
र जपत न . बधपर क हहसस म आर ज’ खसर सख9
२५/२ रकब ४०//) १ लग ‘ ११/ כֿ आ. . २३ रकब
१९///) लग ‘ ६///) द; . इस तरह मर ख त क जम’
म स उक भमम न कल गई ह= और इस तरह मर ख त
क कल भमम रकब १८६///) २ म स ९५) २ न कल चक
ह= और करल ९१///) भमम मर कबज र अधधपत9 म
ह= .”
A bare look at such assertions makes it clear that the
petitioners have not been acting bona fide and the only
attempt had been to avoid the operation of Ceiling Law.
In any case, the learned Revenue Authorities have
rightly considered the matter from all the relevant angles and
the Additional Collector, Rajsamand has concluded the re-
opened proceedings after taking note of the entire fact
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situation of the case and while stating cogent reasons for not
recognising the alleged transfer. The impugned orders do not
disclose any error apparent on the face of the record so as to
call for interference by this Court in the extra-ordinary writ
jurisdiction.
In the fact situation of this case and the questions
involved, the observations of the Hon’ble Supreme Court in
the case of Digambar Adhar Patil (supra) that under the Hindu
Law, it was not necessary that the partition should be effected
by registered partition deed and even a family arrangement
may be enough to effectuate partition between the
coparceners, has hardly any bearing or relevance.
The writ petition fails and is, therefore, dismissed; but
without any order as to costs.
(DINESH MAHESHWARI), J.
s.soni
Mohan