SHARMA, M.—This second appeal has been preferred by the appellant under Section 224 of the Rajasthan Tenancy Act, 1955 (hereinafter referred as the Act) being aggrieved by the judgment and decree passed by Settlement officer-cum-Revenue Appellate Authority, Bharatpur on 17.5.2011 in appeal No. 199/2004.

2. The brief facts of the case are that respondent No. 1 and 2 filed a suit against their father (Appellant) and one brother under Section 88, 89, 53 & 188 of the Act in the court of Assistant Collector, Raja Kheda (Dholpur). The suit was decreed by the trial court. The appellant filed an appeal before the Revenue Appellate Authority, Bharatpur assailing the judgment of the trial court which was dismissed on 17.5.2005. Being dissatisfied by the judgment & decree passed by the first appellate court, this second appeal has been preferred before this court.

3. Heard the learned counsels of the parties.

4. The learned counsel for the appellants contended that the judgments and decrees of both the lower courts are against the basic principles of law & contrary to the evidence available on record. He argued that there is no evidence to prove that the disputed land is ancestral property and the respondent/plaintiffs had any right on the disputed land in the lifetime of their father. He also submitted that appellant Inder Singh has three sons and four daughters. Therefore, in any case, the disputed land cannot be partitioned without impleading his daughters as party in the case. He urged the court that Hindu Succession Act has been amended in September, 2005 and the amendment empowers the daughters to get their share in ancestral property. He submitted that Shri Inder Singh is still alive and the decree was passed by the trial courts on 9.9.04 but the decree was assailed in appeal and it is pending in this court even today. Therefore, the matter may be remanded to the trial court for deciding the matter in light of the amended provisions of the Hindu Succession Act.

5. The learned counsel for the respondents submitted that the judgment and decree passed by the courts below are based on the evidence available on file and in conformity of the provisions of Hindu Succession Act & Rajasthan Tenancy Act. He contended that a suit of partition can be brought only against the co-tenants. And in this case, the daughters of Shri Inder Singh are not recorded as the co-tenant therefore, they can not have any interest in this suit. He also submitted that the partition of the disputed land was decided prior to the amendment of Hindu Succession Act. Therefore, the amended provisions do not apply in this case and in this appeal the daughters are not the appellants, therefore, the appeal filed by Shri Inder Singh is devoid of any merit and deserves to be dismissed. He submitted that the concurrent finding of the lower courts cannot be interfered on the grounds and contention raised by the appellants.

6. We have given serious consideration to the contentions raised by the learned counsels of the rival parties and carefully perused the record.

7. This is an admitted fact that the disputed land is entered in name of Shri Inder Singh son of Shri Nekram. The revenue record available on file explicitly manifests that the disputed land was earlier belonged to Shri Nekram Rajput who is father of the appellant. In this way the disputed land is unequivocally an ancestral tenancy of the family. The trial court framed the following issues in this case:

(i) Whether the disputed land is undivided property of the Joint Hindu Family.-Plaintiff

(ii) Whether the plaintiffs have no relation with Shri Nek Ram and the plaintiffs have no right in the disputed land. The respondent (No.1) is the only tenant in possession. -Defendant

(iii) Whether the affidavit filed with the suit is not properly attested, therefore the suit cannot be treated as properly instituted?-Defendant

(iv) Whether the disputed land is co-parcenary property of Joint Hindu family and the plaintiffs have got the le

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