Partition between cotenants cannot be effected merely on the basis of mutual consent of the parties. There must be evidence of actual division of the land and separate possession by the cotenants.

1. 1. By this writ petition, the petitioner seek to quash the judgment passed by the learned Revenue Appellate Authority dated 27.9.79 (Ex. 2) and of the Board of Revenue dated 7.2.1987 (Ex. 3).

2. Brief facts which are necessary to be noticed for the disposal of this writ petition are that the non-petitioner No. 4 filed a suit on 10.1.68 under Section 183 of the Rajasthan Tenancy Act for the recovery of possession of 5 Bighas and 19 Biswas of the lands situated in Khasra No. 561 measuring 23 Bighas and 5 bis was and 561/1 measuring 14 bit was, which was purchased by him from Gangaram brother of the petitioner for consideration by a registered sale deed dated 18.2.64. It is alleged that the suit land was in his possession from 19.2.64 to 313.64 but the defendant-petitioners forcefully dispossessed him on 31.3.64. The defendant in his written statement denied the fact dispossessing them forcefully and also alleged that they are of the land with Gangaram and partition did not take place and without filing suit for partition, suit under section 183 is not maintainable. The learned trial court framed as many as 10 issues and dismissed the suit on 26.9.77 holding that partition had not been proved and the plaintiff-non-petitioner is not entitled for decree under section 183. Against which the plaintiff Chhaganraj preferred an appeal before the Revenue Appellate Authority, Jodhpur, which was allowed holding that Gangaram was in separate possession of the land in dispute and has 1/4th share in the land, which was sold through a registered sale deed. The R.A.A. also held that the plaintiff-appellant acquired Khatedari rights and land has been mutated and recorded in the revenue record, and the same has not been challenged. Dissatisfied with the order of the learned R.A.A. the defendant-petitioner preferred second appeal. The Board of Revenue also while relying on the statements of the witnesses of the plaintiff-non-petitioners dismissed the second appeal. Hence, the defendants have come up before this Court under Article 226 of the Constitution of India.

3. Mr. Acharya, learned counsel for the petitioners has submitted that without there being any legal or admissible evidence, the learned R.A.A. and the Board of Revenue have erred in arriving at a finding that partition had taken place between the parties. He has also submitted that in the absence of evidence regarding the rent payable by each cotenant after partition is contrary to the provisions of Section 53 of the Rajasthan Tenancy Act. He has relied on M/s. General Auto Agencies v. Hazari Singh, WLN (UC) 1981 27 ].

4. Mr. Lodha, learned counsel for the non-petitioner has submitted that the findings arrived at by both the courts below cannot be interfered with under Article 226.

5. We have heard learned counsel for the parties and perused, the impugned orders as well as the case law cited at Bar.

6. It is no doubt true that cotenant cannot be considered as trespassers and they have right in each inch of land until partition takes place according to law.

7. The sheet-anchor of the contention of Mr. Acharya is that the partition cannot be effected merely on the basis of mutual consent of the parties till it is proved as envisaged under section 53 of the Rajasthan Tenancy Act. It may be stated at the very outset that we are not impressed with the contention of counsel for the petitioner since the learned R.A.A. on the basis of the evidence adduced by the plaintiff-non-petitioner has arrived at a finding that partition had taken place by metes and bounds and the defendants with the connivance of his brother wants to dislodge a bonafide purchaser who purchased the land through registered sale deed dated 19.2.64, wherein the defendant-petitioners have categorically stated that they are selling their 1/4th share to the plaintiffs with consideration. The learned R.A.A. has also observed that the plaintiff-non-petitioner has acquired a Khatedari right and the land has been mutated in