IMPORTANT POINT
Khatedari rights under the Rajasthan Tenancy Act are granted only to actual cultivators, not to those claiming through others without evidence of cultivation.

JUDGMENT :

SUDESH BANSAL, J.

1. Instant writ petition has been preferred by petitioner-plaintiff, challenging the judgment dated 15.01.1996 passed by Board of Revenue in second appeal, whereby and whereunder plaintiff’s revenue suit for declaration of his joint khatedari rights and claiming partition of half share in the land of Khasra No. 325, has been dismissed and decree passed by the Revenue Appellate Authority dated 23.12.1989 has been quashed to this extent. It is noteworthy that by the same judgment dated 15.01.1996, the Board of Revenue has affirmed the decree dated 23.12.1989 passed by the Revenue Appellate Authority in respect of passing a preliminary decree for partition of lands of Khasra Nos. 24 and 55 in equal half-half share between plaintiff and defendants No. 1 to 6 and to the extent of passing this preliminary decree for partition in respect of Khasra Nos. 24 and 55, the judgment of Board of Revenue is not under challenge in this writ petition.

2. Petitioner-Maqsood Khan (now deceased) was the sole plaintiff who instituted a revenue suit in the year 1980 before the Court of Assistant Collector, Jhunjhunu for declaration of khatedari rights and partition under Sections 53, 88, 89, 91 and 92 of the Rajasthan Tenancy Act. In this revenue suit, plaintiff claimed his half share in land of Khasra No. 325/1 (measuring 13 Bigha 9 Biswa), Khasra No. 24 (measuring 26 Bigha 18 Biswa) and Khasra No. 55 (measuring 11 Bigha 6 Biswa) situated at Village Sirsiasar Kalan, Tehsil and District Jhunjhunu. Remaining half share in these lands was asserted to be of defendants No. 1 to 6, who are represented in the writ petition, through respondents No. 4 to 8 herein.

It appears that land of Khasra No. 325 total measuring 23 Bigha 16 Biswa was divided in two parts, northern portion was registered as Khasra No. 325/1 (measuring 13 Bigha 9 Biswa) and southern portion was registered as Khasra No. 325/2 (measuring 10 Bigha 7 Biswa). Since, the southern portion of land of Khasra No. 325/2 (measuring 10 Bigha 7 Biswa) was recorded in name of Alim Bux and Gulam Sarvar, they were also made party-defendants No. 7 and 8 in the present revenue suit. Defendants No. 7 and 8 are represented herein by respondents No. 9 and 10.1 to 10.5.

It appears that in the revenue suit, plaintiff confined his relief for declaration of khatedari rights in Khasra No. 325/1 measuring 13 Bigha and 9 Biswa only, and asked for his half share therein and no relief was prayed by plaintiff in respect of Khasra No. 325/2, measuring 10 Bigha 7 Biswa belong to defendants No. 7 and 8.

3. Plaintiff’s suit was dismissed on merits by the Court of Assistant Collector, Jhunjhunu vide judgment dated 30.12.1985 where-against plaintiff preferred appeal before the Revenue Appellate Authority, Sikar. The appeal was registered as Jhunjhunu/532/1986 and in the appeal, the judgment of dismissal of suit dated 30.12.1985 was quashed and plaintiff’s suit was decreed in the manner that plaintiff and defendants No. 1 to 6 were declared co-tenants of Khasra No. 325/1 (measuring 13 Bigha 9 Biswa) and further the plaintiff and the defendants No. 1 to 6 both were held entitled for half-half share in the lands of Khasra Nos. 325/1, 24 and 55. The consequential directions to appoint the Tehsildar, Jhunjhunu to prepare proposal for final decree of partition and to carry out necessary corrections in the revenue record were also passed.

4. One of defendant out of defendants No. 1 to 6, namely, Mustaq Khan (defendant No. 1) preferred second appeal before the Board of Revenue under Section 224 of the Rajasthan Tenancy Act against the judgment and decree dated 23.12.1989 passed by the Revenue Appellate Authority. In the second appeal, Board of Revenue vide its judgment dated 15.01.1996, sustained the decree for partition of land of Khasra Nos. 24 and 55 in half-half share between the plaintiff and defendant Nos. 1 to 6, but overturn the decree of declaration and partition in respect of Khasra No. 325/1. Theref