A gift deed (tamiliknama) transferring land from a khatedar tenant to another person creates khatedari rights in the transferee, and such land cannot be included in a partition suit between the transferor and his sons without impleading the transferee as a party. A partition decree obtained without impleading the transferee is null and void and cannot be enforced against them.

1. - This petition is directed against order dated 11.10.13 of the Board of Revenue Rajasthan, whereby the second appeal preferred by the petitioners against the order dated 6.3.07 passed by the Revenue Appellate Authority (RAA), Sriganganagar, upholding the judgment and order dated 7.8.06 passed by the Sub Divisional Officer (SDO), Sriganganagar in Revenue Suit No.3/2000, decreeing the suit preferred by the fifth respondent herein under Section 88, 89 & 183 of Rajasthan Tenancy Act, 1955 ( for short "the Act"), has been dismissed.

2. The relevant facts are that Malan Singh s/o Jora Singh, was having agriculture land ad measuring 129.5 bighas in chak 25F, 28F and 33F. Out of the said land, Malan Singh by way of tamaliknama i.e. a gift deed dated 19.3.63 transferred 25 bighas land comprising murabba no.13 in chak 28F in favour of the plaintiff- Smt. Jasvindra Kaur w/o Nakshatra Singh, the fifth respondent herein and accordingly, the land was mutated in her name in the revenue record. Later, the sons of Malan Singh namely; Nakshatra Singh, Nandan Singh and Kala Singh filed a suit for partition against Malan Singh in respect of 129 bighas land held by him as aforesaid. The suit was decreed in terms of compromise arrived at between the parties vide judgment and decree dated 18.11.66. That apart, it is alleged that a relinquishment deed was also executed by the fifth respondent relinquishing her right over 25 bighas land transferred in her name by Malan Singh by way of tamaliknama.

3. The fifth respondent-Smt. Jasvindra Kaur filed a suit for declaration and ejectment against Malan Singh and others, the petitioners and the respondents no.6 to 11 herein, in respect of the disputed land claiming herself to be khatedar tenant thereof. The fifth respondent claimed that by virtue of tamaliknama dated 19.3.63, she had become khatedar tenant of the land in question and the same was mutated in her name in the revenue record and therefore, the partition decree obtained by the defendants without impleading her as party defendant in the suit is null & void and not binding upon her. The fifth respondent claimed that relinquishment deed was got executed by keeping her in dark and on the basis of the relinquishment deed, no right is created in favour of the defendants inasmuch as, they were not co-sharers in the land.

4. The suit was contested by the defendants inter alia the petitioners herein, taking the stand that the land having been partitioned by way of compromise decree, no right is created in favour of the plaintiff on the strength of tamaliknama. It was averred that the plaintiff had knowledge of the suits filed being No.20/66 and 25/66 inasmuch as, her husband-Nakshatra Singh was party defendant therein. That apart, it was contended that earlier plaintiff-Jasvindra Kaur had filed suit No.28/72 against Malan Singh, which was got dismissed as withdrawn and therefore, the fresh suit filed is barred by principle of res judicata.

5. On the basis of the pleadings of the parties, the SDO framed the issues and parties led their evidence. After due consideration of the evidence on record, the SDO arrived at the finding that on the strength of tamaliknama which is a gift deed, the plaintiff had acquired khatedari rights over the land in question and therefore, the same could not have been subject matter of partition in the suit preferred by the sons of Malan Singh. The court arrived at the finding that in the suit for partition filed, the plaintiff-Jasvindra Kaur was not impleaded as party and therefore, the decree passed is not binding upon her. Regarding the suit earlier filed by the plaintiff-Jasvindra Kaur against Malan Singh, the court arrived at the finding that the same was a suit for injunction and since Malan Singh stopped interfering with the use and occupation of the plaintiff-Jasvindra Kaur over the land in question, the same was got dismissed in terms of the compromise and therefore, the principle of res judicata, is not attract