1988 Supreme(Raj) 823
RAJASTHAN HIGH COURT AT JAIPUR BENCH
J.S.Verma, Farooq Hasan, JJ.
Ram Pratap - Appellant
Versus
State of Rajasthan - Respondent
D.B. Civil Writ Petition No. 102 of 1978.
Decided On : 28-10-1988
Partition of joint Hindu family property does not result in a transfer of property, and the co-parceners hold the land in their own right after partition.
Headnote:
LAND CEILING - Ceiling area determination - Calculation of standard acres - Soil classification - Clubbing of land - Minor sons' land - Interpretation of 'dependent' - Remand for fresh determination.
Fact of the Case:
Petitioners claimed themselves as Khatedar tenants of land in villages Gamach and Bhawanipura, alleging succession over the land inherited by Dhanna and Laxmi Narain on the death of Onkar. Ceiling proceedings were initiated against them, and orders were passed by the respondents declaring surplus land. The petitioners challenged these orders, contending that the land gifted to Smt. Sushila Devi was not considered, the land was ancestral and partitioned, and the entire land was wrongly treated as 'command land'.
Finding of the Court:
The court found that the revenue authorities erred in clubbing the land gifted to Smt. Sushila Devi with the petitioners' land while determining the ceiling area. It also held that the partition of the joint Hindu family property resulted in the petitioners holding the land in their own right, and thus, it could not be clubbed together while determining the ceiling area. Further, the court found that the revenue authorities erred in treating the entire land of the petitioners as 'Nahari' without considering the soil classification recorded in the revenue records.
Issues: 1. Whether the land gifted to Smt. Sushila Devi should be excluded while determining the ceiling area of the petitioners? 2. Whether the land held by the petitioners was ancestral and partitioned, and thus, could not be clubbed together while determining the ceiling area? 3. Whether the entire land of the petitioners was wrongly treated as 'command land'?
Ratio Decidendi: 1. The court held that the land gifted to Smt. Sushila Devi should be excluded while determining the ceiling area of the petitioners, as it was recorded in her name in the Jama Bandi prior to the appointed date of 1-4-1966. 2. The court held that the partition of the joint Hindu family property resulted in the petitioners holding the land in their own right, and thus, it could not be clubbed together while determining the ceiling area. The court relied on the principle that co-parceners have a right to the entire property, and partition does not result in a transfer of property. 3. The court held that the revenue authorities erred in treating the entire land of the petitioners as 'Nahari' without considering the soil classification recorded in the revenue records. The court directed the Assistant Collector (Ceiling) to determine the ceiling area afresh with advertence to the soil classification mentioned in the annual register on the date of 1-4-1966.
Final Decision: The court allowed the writ petition, set aside the impugned orders, and remanded the case to the Assistant Collector (Ceiling) to decide the matter afresh with advertence to the observations made in the judgment.
JUDGMENT
1. - The facts, simple enough as they are, have been complicated by the voluminous record built up by the petitioners. Shorn of all unnecessary detail, the relevant facts are these. The petitioners, (Ram Pratap, Kewal Chand, Padam Kumar and Mabaveer Prasad), claimed themselves as Khatedar tenants of the land situated in villages Gamach (308 Bighas 9 Biswas) and Bhawanipura (46 Bighas 10 Biswas) on the ground that they had succeeded over the land inherited by Dhanna and Laxmi Narain on the death of one, Shri Onkar. According to the petitioners, on the death of Dhanna Lal, the parties partitioned co-parcenary joint family property and the mutation was attested before 1-4-1966 by giving effect also co the Jamabandi of S.Ys 2020 to 2023. In ceiling proceedings initiated against the petitioners for their lands, the orders were passed by the respondents Nos. 2 to 4 which are being challenged through this writ petition praying therein for setting aside the orders dated 17-11-1976 (Ann-D) of the Board of Revenue (respondent No. 2); dated 25 8-1977 (Ann-E) along with Ann. B dated 9th June, 1975 of the Revenue Appellate Authority (respondent No. 3), and dated 29-1-1972 (Ann. A) of the Assistant Collector (Ceiling) Bundi (respondent No. 4).
2. The Assistant Collector (respondent No. 4) while deciding the ceiling proceedings admitted the fact of partition but, declared 96 Bighas 14 Biswas of land as surplus one with the petition-against which the petitioners filed appeal which was dismissed by the Revenue Appellate Authority and then the petitioners filed revision petition before the Revenue but without any success.
3. We have heard the learned Counsel for the parties.
4. Manifold contention on behalf of the petitioners by Shri S.N. Pareek learned counsel, is that the land comprising of Khasras Nos. 189 & 225 measuring 25 Bighas 14 Biswas, was given to Smt. Sushila d/o Ram Pratt p by Dhanna which was mutated in her name which was recorded and entered in the Jama Bandi of S.Y. 2018 i.e. prior to 1-41966--but the same was calculated with the land of the petitioners while determining the ceiling area which could not have been calculated; that the land in dispute being joint Hindu family property apart from ancestral in the hands of the petitioners, the revenue courts fell in error in calculating the share of Paras Chand Ajit Kumar & Rakesh Kumar sons of Ram Pratap with the share of Ram Pratap treating them as minor while upholding the fact of partition; and that, the revenue authorities fell in error in holding that the whole of the lands in the petitioners was irrigated one but, the ceiling area of the petitioners was not determined as per the soil classification mentioned in the revenue records.
5. On the other hand learned Government Advocate though supported the orders of the Revenue Courts but failed to dispute the fact of gift in favour of Smt. Suthila Levi, arart fiom controverting the submission of the petitioners.
6. We have given thoughtful consideration to the rival contention of the parties, and perused the entire record placed in this writ petition.
7. As already stated, apparently from the record, on the death of Onkar-predecessor of the petitioners, the land was inherited by Dhanna and Laxmi Narain and they had succeded 308 Bighas 9 Biswas in village Gamach and 46 Bighas 10 Biswas in village (Bundi Bhawanipura District), and after the death of Dhanna Lal partition of co-parcenary property of joint Hindu family took place-mutation of which was attested proir to 1-4-1966 giving effect also in the relevant Jama Bandis before the appointed dated 1-4-1966. In this view of the matter, the petitioners were holding the land according to their shares recorded in the revenue records.
8. Undisputedly, out of the land inherited by Dhannalal and Laxmi Narain, 25 Bighas 14 Biswas of Khasra Nos. 189 and 225 were given to Smt. Sushila d/o Ram Pratap by Dhannalal which was recorded in Kbatedari of Smt. Sushila in the Jama Bandi of S.Y. 2018
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