Prabhu Dayal vs The Board of Revenue

Alok Sharma, J.—This petition purporting to be one under Article 226 of the Constitution of India challenges the order dated 30.3.2001 passed by the Board of Revenue, Ajmer (hereinafter ''the Board'') upholding the judgment and final decree dated 30.7.1999 passed by the Assistant Collector and Executive Magistrate, Chomu District Jaipur (hereinafter ''the trial court'') and drawn on 9.8.1999 and prays that the objections of the petitioners defendant now deceased and represented by his legal representatives (hereinafter ''the defendants'') against the kurijat report and the proposals of partition submitted by the Tehsildar pursuant to the preliminary decree be allowed and the final decree be quashed and set aside.

One Bhonrilal (now deceased and represented by his LRs) filed a suit for partition in respect of agricultural lands in khasra No. 1863 (old) measuring 27 bighas and 12 biswas and Khasra No. 1886 (old) measuring 5 bighas 17 biswas as detailed in para No. 1 of the plaint. The said lands were claimed to be ancestral and joint. The possession of the lands coming to the share of the plaintiff in terms of the final decree of the Court as passed, was also sought. Inevitably the suit as laid was contested in the written statement filed by the defendant. An earlier partition-30 years prior to laying of the suit was propounded and it was stated that in terms thereof the parties were already in possession. The plaintiff Bhonrilal expired during the pendency of the suit and his legal representatives now respondents No. 4 to 9 in this petition were substituted.

The trial Court on consideration of the evidence passed a preliminary decree on 10.2.1999. As directed, on receipt a kurijat report from the Tehsildar, the final decree was passed on 30.7.1999 and drawn on 9.8.1999.

The defendant''s appeal before the RAA was allowed vide judgment dated 20.6.2000 and the matter remanded but only for consideration of objections to an extent of 1.07 bighas of land as the defendant agreed to the final decree as to the partition of the remainder land. A further appeal by the plaintiff to the Board was allowed and RAA''s judgment of 20.6.2000 set aside and that of the trial court restored. Hence this writ petition.

Mr. M.M. Ranjan, Sr. Advocate with Ms. Nikita Sood counsel for the defendants submitted that the final decree is dated 9.8.1999 when it was drawn no matter that it is reflected in the trial court''s Judgment dated 30.7.1999 and is vitiated for the reason of having been passed without considering the objections of the defendants filed on 2.8.1999 and 16.8.1999 to the kurijat report of the Tehsildar subsequent to the preliminary decree dated 10.2.1999. It has been submitted that even otherwise the final decree dated 9.8.1999 passed by the trial court is vitiated for having been passed contrary to the settled law on partition where-under a party possession is not to be dispossessed as far as possible and maximum endeavor is to be made to divide the land/property with reference to the possession of the parties at the time of the partition. It has been submitted that the trial court as also the Board lost sight of the fact that the defendant''s agricultural lands particularly in Khasra No. 4089/2 has been blocked completely and the defendant''s had no access thereto as a consequence of the partition by metes and bounds under the final decree dated 9.8.1999.

Appearing for the plaintiff respondent (hereinafter the plaintiff'') Mr. Alok Garg has submitted that the case set up in the present petition challenging the entire partition by metes and bounds as finally made under decree dated 30.7.1999 though drawn on 9.8.1999 is contrary to the consent of the defendants before the RAA where an issue was only made with regard to 1.07 bighas of land and the remainder partition by metes and bounds under the final decree accepted. Counsel submits that the case set up by the petitioner with regard to the non-access to Khasra No. 4089(2) (new) was at no point of time earlier set up before any Court including in the objections purportedly filed on 2.8.1999 and 16.8.1999. This objection was even not specifically raised in the appeal filed before the RAA. It has been submitted that the access to parcel of land in Khasra No. 4089/2 falling to the share of the defendants cannot be therefore allowed to be agitated in the first instance in proceedings under Article 226 of the Constitution of India-also for the reason that the determination of the alleged fact would entail taking evidence on record and coming to a finding of fact based thereon. Counsel submits that in any event the defendants in-fact have access by way of an existing passage 8 ft. wide from Khasra No. 4081 (new) coming to their share under the final decree of partition dated 9.8.1999 passed by the trial court to Khasra No. 4089/2 (new). This submission has been made on instructions of the plaintiff Ramswaroop-who is present in the Court. Counsel submits that similarly the plaintiffs have access from their fields in Khasra No. 4086 (new) to Khasra No. 4084(new) which came to their share in terms of the final decree of partition. Counsel emphatically submitted that both the plaintiffs and defendants have come into khatedari of agricultural lands admeasuring 5.43 hectares each and in respect of an unpartiable chunk of land ad-measuring 0.68 hectares continued to be in joint khatedari. This 0.68 hectare land in joint khatedari of the plaintiff and the defendant under the partition decree has since been sold out by each of the parties to the extent of their share and in obtaining circumstances there is no reason whatsoever to interfere with the judgment and decree dated 30.7.1999 drawn on 9.8.1999 passed by the Assistant Collector, Chomu as upheld by the Board in its judgment dated 30.3.2001.

Sr. Counsel Mr. Ranjan in rejoinder submits that even while the defendants take the admission of the counsel of the plaintiffs on instructions of Ramswaroop that they have an access to Khasra No. 4089(2) (new) from Khasra No. 4081 (new) through a 8 ft. wide passage running diagonally through the shortest point in the two khasras, he empathetically denied that the plaintiffs had any access from a similar passage running diagonally from Khasra No. 4089(2) (new) to khasra No. 4084-both in their khatedari.

Heard. Considered.

In my considered view from the facts on record no case for interfering with the judgment dated 30.3.2001 passed by the Board has been made out. Admittedly as per the case of the defendants before the appellate authority i.e. RAA and recorded in its judgment dated 20.6.2000 a dispute only with regard to division of 1.07 bighas of land remained between the parties in the partition suit. It is also admitted that in terms of the final decree of partition each of the parties came into possession of 5.43 hectares agricultural land and remained in joint possession of an unpartiable chunk of land measuring 0.68 hectares for reason of necessity. This unpartiable chunk of land has since been sold by the plaintiffs and defendants to the extent of their share. The question of access to Khasra No. 4089(2) sought to be agitated before this Court for the first time was at no point of time set up before the trial Court, or the RAA or for that matter even before the Board. Further in view of the statement of the counsel for the plaintiffs that the defendants indeed have an access through a 8 ft. wide passage running diagonally from Khasra No. 4081 (new) to 4089/2 (new), in my considered opinion no good ground for interference with the judgment dated 30.3.2001 passed by the Board is made out. The jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked on questions of fact and this Court cannot review, re-appreciate or reweigh evidence upon which determination of lower courts is based. There is no error manifest in the conclusions of the trial court as upheld by the Board which has also correctly set aside the RAA''s remand order, remitting the matter to the Assistant Collector to re-determine partition of 1.07 bighas of land without as much as stating the relevant khasra number and over-looking that the purported objections to the kurijat report filed on 2.8.1999 and 16.8.1999 were subsequent to the final decree dated 30.7.1999 albeit drawn on 9.8.1999.

The writ petition is accordingly dismissed.

Post Script:

Mr. Ranjan seeks permission to withdraw the third stay application with liberty to agitate his cause detailed therein before the competent court of law. The third stay application is accordingly dismissed as withdrawn. It is not for this Court to grant any liberty to any citizen aggrieved of an alleged denial of a right, as each citizen is free to avail his remedy as available in law on a plausible cause of action.