Ratan Lal And Ors vs Gopal Singh And Ors

Challenge in the instant appeal has been made by the appellants to the Judgment dated 15.02.2018 passed by learned Single Judge.

Facts of the case in brief are that the agriculture land measuring 40 Bighas 17 Biswa of Khasra No. 409 and Gair Mumkin Chah (well) area 1 Biswa of Khasra No. 409/925 situated at village Machawa Tehsil Jaipur, after the death of their father Bala Bax & Devi Lal was recorded in the revenue records in joint Khatedari with half share each of Ramgopal and Radheyshyam. The aforesaid land originally belonged to Bala Baksh and Devi Lal with equal undivided share. On the death of Bala Baksh and Devi Lal, the said land came to the possession of Ram Gopal and Radhey Shyam, who were the legal heirs of Balakush and Devi Lal. In the year 1965 by a mutual verbal agreement, Ram Gopal and Radhey Shyam divided the said land into two portions. In terms of verbal agreement, Ram Gopal got the Southern portion on the South of the Kacha Rasta adjacent to the Jaipur-Kalwar Road ad-measuring 17 Bighas and Northern part of the land which was situated behind the land of Ram Gopal ad- measuring 23 Bighas falls under the share of Radhey Shyam. Since then both the parties were in the possession of the respective shares received by them as per the mutual verbal agreement. The land was divided mutually and the area was demarcated taking into consideration the market value and the quality of the land. Due to the land transferred to Radhey Shyam being of inferior quality and of lesser value, the larger portion of land i.e. 23 bighas of land, was agreed to be transferred to Radhey Shyam. In the year 1966, Radhey Shyam sold 23 Bighas 5 Biswas of land by a registered sale deed to Ram Singh, who thereafter sold the same to Kesari Singh Mandawa in the year 1968. The said portion was subsequently sold to Sarad Kumar Agrawal in the year 1969, Kirti Vardhan Singh in the year 1980, Jamil Hasamt in the year 1982, Urmila, Bhagwan Das Kandoi in the year 1986 and Gopal Singh & Others in the year 1990 by way of the Registered sale deed. In terms of the holding, the mutation was effected in the land records accordingly.

On 15th October 1980, an application was filed by Ram Gopal before the Sub Divisional Officer under the provisions of Section 53 and 188 of the Rajasthan Tenancy Act, 1955 for division of the said agricultural land. After perusal of the record and the evidence, a preliminary decree dated 4.3.1987 was passed by the Sub Divisional Officer whereby it was held that both Ramgopal and Radhe Shyam are entitled to equal share in the disputed land. The SDO, thereafter, on 27.7.1988 passed a final decree dividing the agricultural land into two portions horizontally ad-measuring 20 Bighas each. The Southern rectangular portion adjacent to the main road was given to Ram Gopal and the Northern uneven portion was given to the subsequent purchaser of the land, Urmila and Bhagwan Das Kandoi without taking into consideration the facts that they have purchased 23 Bighas of land from their predecessors. Aggrieved by the order of Sub Divisional Officer dated 27.7.1988, an appeal was filed by Urmila and Bhagwan Das Kandoi before the Revenue Appellate Authority. The Revenue Appellate Authority vide judgment dated 13.5.1994 allowed the appeal and quashed and set aside the final decree of the SDO dated 27.7.1988 and remanded the matter to the SDO with directions that the report be prepared by the Tehsildar regarding fresh division of the disputed property in the presence of both the parties and accordingly final decree be passed. The legal heirs of Ram Gopal against the order dated 13.05.1994 filed an appeal before the Board of Revenue, Ajmer and the same was rejected on 22.2.2000. The Board of Revenue upheld the order of Revenue Appellate Authority and held that land has to be demarcated quality-wise and the respondents are not entitled to have the best part of the land.

Aggrieved by the order dated 22.2.2000, the appellants who are the legal heirs of the Ram Gopal filed a writ petition before the learned Single Judge through his legal representatives. The said writ petition was dismissed, against which a D.B. Civil Special Appeal came to be filed before this Court being D. B. Civil Special Appeal No. 160/2001. Vide order dated 3.8.2001, this Court rejected the appeal and upheld the order passed by the learned Revenue Appellate Authority dated 13.05.1994. Against the order passed by the Division Bench, no SLP was preferred before the Supreme Court. Thus the order dated 13.5.1994 passed by the learned Revenue Appellate Authority attained finality. In pursuance of the order dated 13.5.1994, the learned Sub Divisional Officer on 21.01.2003 re-divided the agricultural land vertically giving 20 Bighas of one single piece to Ratan Lal etc. on the Western side and 20 Bighas to Ram Gopal etc in two pieces i.e. 17 Bighas on the Eastern side and 3 Bighas on the Northern Side of the Western plot. By this division, the land of both the parties stands abutted to the main road giving access therefore. The said partition has been done after taking into consideration the market value, quality and size etc of the agricultural land. After the said division, the revenue records were changed as per the new vertical division by the Tehsildar and both the parties took physical possession of their respective shares and continue to hold possession. Against the order passed by the learned Sub Divisional Officer, the appellants preferred an appeal before the learned Revenue Appellate Authority. The learned Revenue Appellate Authority vide order dated 9.4.2003 rejected the appeal filed by the appellants and upheld the vertical division done by the learned Sub Divisional Officer. Aggrieved by the said order, the appellants preferred an appeal before the Learned Board of Revenue and the said appeal was allowed on 21.3.2006 with a direction to divide the land horizontally i.e. north-south partition exactly like the division done pursuant to the earlier order of SDO dated 27.7.1988. Against the order dated 21.03.2006 passed by the learned Board of Revenue, the respondents preferred writ petition which was allowed by the learned Single Judge vide its Judgment dated 15.02.2018. The appellants aggrieved by the Judgment dated 15.02.2018 preferred instant special appeal.

Learned counsel for the appellants- non-petitioners ('the appellants' for short) argued that the observation made by the learned Single Judge in the impugned order on page 3 para 2 was that "a preliminary decree was passed on 4th March, 1987 with the direction to divide the land in two parts between two brothers" is contrary to the facts and the material on record. The preliminary decree was passed on 04.03.1987 between the father of appellants Ramgopal and the purchaser Akshay Vansh, who purchased the land from Radheyshyam. Similarly, the observation made on page 9 at para 2 of the impugned order was that "the perusal of the initial sale deed prior to partition shows that Radheyshyam sold 23 bighas and 5 biswas of land out of 40 bighas and 17 biswas" is contrary to the facts and the material on record as Radheyshyam sold the land through a registered sale deed dated 18.01.1966 to one Ramsingh after partition with appellant in 1965 from joint khatedari. As such after partition, the joint khatedari between the two brothers came to an end and both the brothers remained in possession in their respective portion. The north side was purchased by Radheyshyam from Ramsingh and was thereafter sold to number of persons and finally to the respondents. Learned counsel argued that after partition, appellant and vendor Radheyshyam were not the joint khatedars but became the owner of their portion. Radheyshyam was having share of 20 bigha 8.5 biswas but sold 23 bigha 5 biswas i.e. sold 2 bigha 16.5 biswas in excess of his share. As such the excess land sold was in possession of the respondents at north side. Learned counsel argued that the finding of the learned Single Judge that Rule 20 of the Rajasthan Tenancy (Board of Revenue) Rules, 1955 would be applicable as a whole for making partition between the appellant and the respondent purchaser is contrary to law under the facts and circumstances of the case. Rule 20 as a whole would be applicable for partition between co-tenants having joint ownership. In this case the partition had taken place in 1965 prior to sale made by Radheyshyam in 1966, as such joint ownership came to an end and the case was only in respect of 2 bigha 16.5 biswas land which was sold in excess of the share by Radheyshyam and was included in possession of the land of respondent at north side. Therefore, the appellants' land could not be taken into consideration for the partition to equalize the share of appellant's land. As such Rule 20(a) relating to valuation of the portion and Rule 20(c) relating to inferior and superior quality of land would not be applicable between the appellants and the respondents.

It is argued that the parties divided the land in the year 1965. The Southern part near road came in share of the appellants and the Northern part, which is away from the main road, came in share of Radhyshyam. Radhyshyam sold 23 bigha and 5 biswa land vide registered sale deed dated 19.01.1966 to Ram Singh. The possession was also given on the north side of the land. Thereafter, the land was sold to the number of persons and each time possession was given only of the Northern side of land. As such the appellants and the purchasers were in their respective portions at Southern and Northern side of the land. The appellant filed the suit for partition specifically stating therein that by maintaining the present possession the partition be made. As such, it was clear that the partition was to be made by dividing the excess land sold in favour of the respondent. As such the provisions of rule 20 would be applicable only for the excessive land which was sold and in possession of the respondents. Therefore, the impugned order holding the division of hold land by applying Rule 20 in east-west side i.e. giving half of the land of the appellant's possession near the road to the respondents, who purchased the specific portion of the north side for value is against the law as rule 20 would be applicable only for the purpose of excessive land which would be at the junction of the land in possession of both the appellants and the respondents. Learned counsel further argued that the learned court below has not considered the aspect that the defendant in its written statements has accepted the partition between the appellant and Radhyshyam but stated that the land in share of Radhyshyam was 23 bigha 5 biswa as it was away from the road side and the appellant was of 17 bigha and 10 biswa being near the road side. As such, the partition and possession were admitted, therefore, the division was to be made by maintaining the possession of the appellant and to interfere from the respondents land to the extent of sale of excessive area of the appellant i.e. 2 bigha and 5 biswa. Therefore, the impugned order upholding the division between the appellant and the purchaser of specific portion of northern side then the partition of east- west side of the entire land cannot be said in accordance with law. Moreover, the earlier preliminary decree was passed by maintaining the possession of south and north side and also the final decree was passed but the same was dismissed with the direction that the Tehsildar himself should go to the site and prepare the report regarding partition. After remand the report was not prepared by the Tehsildar but he got it prepared from the Nayab Tehsildar. In the subsequent report, there was no basis of the partition from east to west whereas the appellant was in possession of southern land and the respondent purchased the northern side of land. Learned counsel further argued that the impugned Judgment has been passed by the learned Single Judge without taking into consideration the fact that the partition suit was filed by the appellant against the Radheyshyam.

Per contra Mr. Anupam Shrivastava assisted by Mr. Arnav Singh, learned counsel appearing for the respondents opposed the appeal and supported the Judgment passed by the learned Single Judge. He has placed emphasis of Rule 20(e) of the Rules of 1955. Learned counsel submitted that earlier division was mutually agreed due to the fact that 23 bighas of land was to come into the possession of the respondents in view of the said land being of inferior quality and of lesser value. However, after the suit for partition was filed by the respondent Ram Gopal, the earlier mutual understanding did not remain in existence. Furthermore, vide order dated 27.01.1988 the SDO divided the property by reducing the land of the respondents from 23 bighas to 20 bighas. Thus, the earlier division made on the basis of mutual understanding cannot be relied upon by the Board of Revenue. Moreover, the direction of re-division passed by the learned Revenue Appellate Authority vide order dated 13.05.1994 attained finality on dismissal of the D.B. Civil Special Appeal (Writ) No. 160/2001.

We have given our earnest consideration to rival submission made by learned counsel appearing for the respective parties, perused the impugned Judgment passed by the learned Single Judge and also gone through the entire material made available to us.

The issue is as to whether division of land between two parties is proper or not? The Court of SDO has passed a final decree based on the report of the Tehsildar to divide the land in two parts i.e. east and west. The east portion of land along with one piece of land in northern side was given to the petitioner while western portion of the land to the non-petitioner/s. In order to partition/divide the land, Rule 20 of Rajasthan Tenancy (Board of Revenue) Rules, 1955 (for short "the Rules of 1955") is required to be taken in consideration, which provides as under:-

"20. Division of holding by decree.- Same as provided in Rule 19 in a division of holding by the decree or order of a competent court passed in a suit by one or more of the co-tenant for the purpose of dividing the holding the distributing the rent thereof over the several portions into which it is divided the following principles shall be observed:-

(a) The valuation of the portion allotted to each party shall be proportionate to his share in the holding.

(b) The portion allotted to each party shall be as compact as possible.

(c) As far as possible, no party shall be given all the inferior or all the superior quality of land.

(d) As far as possible, existing fields shall not be split up.

(e) Plots which are in the separate possession of a tenant shall, as far as possible, be allotted to the tenant, if they are not in excess of his share."

As per the aforesaid provision, valuation of the portion allotted to each party should be proportionate. While doing so, the portion should be kept as compact, as possible. One party should not be given inferior portion while other the superior and, furthermore, that existing field may not be split up. It is lastly that if the plots are in separate possession of the tenant then as far as possible, be allotted to tenant, if they are not in excess to his share. The aforesaid criteria need to be applied so that nobody is put to loss while making division of the land.

The learned Single Judge considering Rule 20 of the Rules of 1955 came to the conclusion that "the division of land has to be made in a manner that the inferior and superior land is shared equally. The Tehsildar has made detailed report to divide the land in two portions i.e. east and west. It is after taking note of the existence of the main road in southern side of the land and, thereby, both the portions would have access to the road. In case of division of land north and south, the land holder of southern area would be benefited putting the other party at loss occupying northern part, as southern part would be closer to the land. It is pertinent to note that section 53 of the Rajasthan Tenancy Act, 1955, which deals with division of holding in the Act and the Act does not prescribe any procedure how the holding of land be divided among the co- tenants. Thus, section 53 so far as relevant for the purposes of the present case, reads-

"53. Division of Holding- (1) Omitted.

(2) A division of a holding shall be effected in the following manner:-

(i) by agreement between the co-tenants in respect of-

(a) such division of the holding; and

(b) the distribution of rent over the several portions into which the holding is so divided; or

(ii) by the decree or order of competent court passed in a suit by one or more of the co-tenants for the purpose of dividing the holding and distributing the rent thereof over the several portions into which it is divided.

(3) Omitted.

(4) To every suit for the division of one or more than one holding, all the co-tenants and the landholder shall be made parties.

(5) A suit for the division of more than, one holding may be instituted provided that the parties are the same."

The father of appellants Ramgopal filed a suit on 02.12.1980 for partition and injunction with the prayer that by maintaining the present possession between the parties the land be partitioned and the respondents be restrained from making interference in peaceful cultivation of the land measuring 20 bigha 8 biswa and Chah (well) measuring 1 biswa situated at southern side of the land.

It is stated that Radheyshyam sold the land through registered sale-deed dated 18.01.1966 to one Ram Singh after partition with appellant in 1965 from joint khatedari. As such after partition the joint khatedari between brothers came to an end and both the brothers remained in possession in their respective portion. The north side was taken by Radheyshyam, which was sold by him to Ramsingh and thereafter sold to number of persons and finally to the respondents. In written statement Annex.R/8 the defendant-appellant nowhere says that there had been distribution of rent. Therefore, the division cannot be called to have been completed in accordance with the provisions of section 53(2)(i)(a) and (b) of the Act unless there had been distribution of holding between the parties.

It is not in dispute that the SDO, on 27.7.1988 passed a final decree dividing the agricultural land into two portions horizontally ad-measuring 20 Bighas each. The Southern rectangular portion adjacent to the main road was given to Ram Gopal and the Northern uneven portion was given to the subsequent purchaser of the land, Urmila and Bhagwan Das Kandoi, without taking into consideration the facts that they have purchased 23 Bighas of land from their predecessors. Aggrieved with the order of Sub Divisional Officer dated 27.7.1988 an appeal was filed by Urmila and Bhagwan Das Kandoi before the Revenue Appellate Authority. The Revenue Appellate Authority vide judgment dated 13.5.1994 allowed the appeal and quashed and set aside the final decree of the SDO dated 27.7.1988 and remanded the matter with directions that the report be prepared by the Tehsildar regarding fresh division of the disputed property in the presence of both the parties and accordingly final decree be passed. The legal heirs of Ram Gopal filed an appeal before the Board of Revenue, Ajmer against the order dated 13.05.1994 and the same was rejected on 22.2.2000. The Board of Revenue upheld the order of Revenue Appellate Authority and held that land has to be demarcated quality-wise and the respondents are not entitled to have the best part of the land. Aggrieved by the order dated 22.2.2000 the appellants who are the legal heirs of the Ram Gopal filed a writ petition before learned Single Judge bearing S. B. Civil Writ Petition No. 2494/2000 titled as Ram Gopal (deceased) through his regal representatives Ratan Lal and others V/s Board of Revenue and others. The said writ petition was dismissed, against which a D.B. Civil Special Appeal came to be filed before this Court being D. B. Civil Special Appeal No. 160/2001. Vide order dated 3.8.2001 this Courtr rejected the appeal and upheld the order passed by learned Revenue Appellate Authority dated 13.05.1994.

It is pertinent to note that vide order dated 03.08.2001 the Sub Divisional Officer re-divided the agriculture land in pursuance of order dated 13.05.1994 passed by the learned Revenue Appellate Authority which attained finality after dismissal of D.B. Civil Special Appeal (Writ) No. 160/2001. In appeal, the learned Revenue Appellate Authority confirmed the order of re-division of the agriculture land with the direction of distribution of the land.

Thus the directions issued by the learned Revenue Appellate Authority in its Judgment 09.04.2003 to our mind, appears to be proper on the ground that the division of holding is essential to be affixed along-with division of the land. The learned Board of Revenue committed an error in holding that the respondents had admitted earlier division made from North to South without taking note of the order passed by this Court in D.B. Civil Special Appeal (Writ) No.160/2001, whereby the order of re-division passed by the learned Revenue Appellate Authority dated 13.05.1994 attained finality. Therefore, the learned Board of Revenue committed an illegality in setting aside the Judgment dated 09.04.2003 passed by the learned Revenue Appellate Authority on the ground that defendants respondents had admitted earlier division done from north to south.

We, therefore, do not find any illegality in the impugned Judgment passed by the learned Single Judge. The special appeal is, therefore, accordingly dismissed.