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2015 Supreme(Raj) 530
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
SUNIL AMBWANI & AJIT SINGH, JJ.
Ram Kumar – Appellant
Versus
State of Rajasthan and Others – Respondents
Civil Special Appeal Nos. 35 & 375 of 2002
Decided On : 18-8-2015
Advocate Appeared:
For the Appellant: Mr. J.L. Purohit and Mr. Rajeev Purohit.
For the Respondent: Mr. S.L. Jain and Mr. K.L. Bishnoi.
Headnote:
Rajasthan Tenancy Act, 1955 - Sections 53, 88 and 188 - Hindu Succession Act, 1956 - Sections 6 and 8 - Agreement of sale - Sale deed - Special Appeal was held to be maintainable vide order as it was filed prior to the amendment of Civil Procedure Code providing non-maintainability of Letters Patent in civil matters - entered into an agreement of sale sale of 16 bighas 10 biswas land situate in Chak No. 3 MSD, at the rate appellant was paid in advance to Het Ram in cash at the time of execution of the agreement - Possession was also alleged to have been given remaining amount was to be paid when the sale deed was to be executed and registered - Execution of the sale deed was extended upto one month from getting permission of sale from the revenue authorities - Sons of Het Ram filed a suit in the revenue court under sections 88 and 188 of the Rajasthan Tenancy Act, 1955 for declaration and partition against their father Het Ram, uncle and grand-mother and remaining three brothers, with averments that the land was ancestral and had been inherited by Het Ram and his brother - Held, Entries made in the revenue records as well as the law of succession as applicable to land under the Rajasthan Tenancy Act, 1955 - On enforcement of the Rajasthan Tenancy Act, 1955, all the land vested in the State and became tenants of the land will be governed by the law of succession in accordance with the Rajasthan Tenancy Act, 1955, which will override the provisions of succession under the Hindu Succession Act - Judgment of learned Single Judge cannot be sustained and that the findings recorded by him on the basis of assumptions and on incorrect appreciation of law of succession, are liable to be set aside and matter is required to be remanded to learned Single Judge to consider the provisions of the Rajasthan Tenancy Act, 1955 for succession, and entries made in the revenue records as well as to record the findings as to whether the five sons were born to Het Ram prior to the date of agreement of sale - Special Appeal is accordingly allowed
SUNIL AMBWANI, J.
1. This Special Appeal is directed against the judgment of learned Single Judge dated 20.5.2002, by which he partly allowed the writ petition with direction that Shri Het Ram will execute the sale deed in pursuance of the agreement of sale dated 3.4.1984 to the extent of his transferable share of 2.4 bighas. It was found that the land was agreed to be purchased at the rate of Rs. 11,000/- per bigha, for which Rs. 80,000/- was paid and thus, Shri Het Ram will refund the excess amount to the appellant-Ram Kumar. Shri Het Ram was directed to execute the sale deed to the extent of his share and not of any specific part of the land. After the sale deed is executed and registered, the appellant-Ram Kumar may file a suit for division of the holding under section 53 of the Rajasthan Tenancy Act, 1955 to get the land partitioned.
2. Brief facts giving rise to this Special Appeal, which was held to be maintainable vide order dated 5.5.2015 as it was filed prior to the amendment of Civil Procedure Code providing non-maintainability of Letters Patent in civil matters, are as follow.
3. Shri Het Ram entered into an agreement of sale dated 3.4.1984 for sale of 16 bighas 10 biswas land situate in Chak No. 3 MSD, at the rate of Rs. 11,000/- per bigha with Shri Ram Kumar-the appellant. Rs. 80,000/- was paid in advance to Het Ram in cash at the time of execution of the agreement. The possession was also alleged to have been given to Shri Ram Kumar. The remaining amount was to be paid on 2.8.1984 when the sale deed was to be executed and registered. The date for execution of the sale deed was extended upto one month from getting the permission of sale from the revenue authorities.
4. Rajendra and Satpal, sons of Het Ram filed a suit in the revenue court under sections 88 and 188 of the Rajasthan Tenancy Act, 1955, for declaration and partition against their father Het Ram, uncle Hanuman and grand-mother Mst. Dhapi and remaining three brothers, with the averments that the land was ancestral and had been inherited by Het Ram and his brother Hanuman after the death of Lalu Ram, who was recorded as khatedar vide mutation No. 20 entered on 2.5.1957. Het Ram was not entitled to sell 16.5 bighas of land as it was more than his share. Mst. Dhapi, widow of late Lalu Ram, was not given her share after the death of her husband and thus, she also filed a suit under section 88 of the Rajasthan Tenancy Act, 1955 against Het Ram and Hanuman, which was decreed on 25.10.1985 and the name of Mst. Dhapi was also added alongwith Het Ram and Hanuman.
5. It was stated in the plaint that 15 bighas of land of Chak Nos. 5 and 6 LC situated in village 3 MSD in the joint name of Het Ram and Hanuman, has already been sold by them jointly. The remaining 33 bighas of land situated in Chak No. 3 MSD was in the joint name of Het Ram, Hanuman and Mst. Dhapi, in which 11 bighas fell in the notional share of Het Ram. Five sons of Het Ram, namely, Rajendra, Satpal (plaintiffs), Krishna, Hansraj and Banshi Lal (defendants No. 6 to 8) and his wife Mst. Phula Devi (defendant No. 9) had equal shares in the notional share of Het Ram and therefore, in 11 bighas, Het Ram had 1/7th share, which comes to 1.3 bighas and thus, he could not have executed agreement of sale beyond his share.
6. The appellant-Ram Kumar contested the suit. The Sub-Divisional Officer, Raisinghnagar by his order dated 7.2.1991 dismissed the suit, as the plaintiffs could not prove that the land was ancestral. Aggrieved, the plaintiffs filed appeal No. 8/91 before the Revenue Appellate Authority, Sri Ganganagar, which was also dismissed on 23.6.1993. The second appeal was allowed by the Board of Revenue vide order dated 16.10.1998, on which the writ petition was filed.
7. The appellant-Ram Kumar also filed a suit No. 48/87 against Het Ram for specific performance of the agreement to sell in the Court of Additional District Judge, Raisinghnagar, which was decreed on 8.5.2000.
8. Learned Sin
