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2007 Supreme(Raj) 1043
[Citation : RLW 2008(1) RJ 246 (HC)]
(Rajasthan High Court)
Surjan Singh & Ors. Vs. Mahengal Singh & Ors. (Tatia, J.)
HONBLE PRAKASH TATIA, J.
Surjan Singh & Ors.
Versus
Mahengal Singh & Ors.
S.B. Civil Writ Petition No. 5933 of 1992, decided on 2nd August, 2007
S.C. Bhandari, for Petitioners
S.N. Tiwari, Dy.GA, for Respondent-State
Sudheer Sharma, for Respondents
Headnote:Rajasthan Tenancy Act, 1955, Sec. 88; Constitution of India, 1950, Art. 227 — Suit for declaration of Khatedari rights and partition — Concurrent finding of facts of three Courts below — Jurisdiction of High Court u/Art. 227 to interfere — Held, Suit filed after 39 years — No corroborative evidence on the question of fact nor any explanation for partial partition — No possession prior to the coming into force of Tenancy Act — Finding based on correct appreciation of evidence — Art. 227 is not appellate jurisdiction as fourth appeal in the matter arising out of a regularly instituted suit. (Paras 15 to 22)
Writ petition dismissed.
This Court even after going through the documents is of the view that in fact, the settled possession, which was going on since about the year 1910, almost as it was about century ago, is now sought to be disturbed by seeking a relief of setting aside of the judgments of three courts below by exercising powers under Article 227 of the Constitution of India on the basis of grounds like questioning the existence of file No.945 without questioning it as such in memo of appeal before the court below. (Para 19)
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fu.kZ;
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2. Three courts below concurrently decided against the plaintiffs Kehar Singh, Jalore Singh, Balwant Singh and Sant Singh and dismissed the plaintiffs suit for declaration of Khatedari rights and for partition of the agricultural land described in schedule Ka and Kha appended to the suit. The trial court dismissed the suit of the plaintiffs by judgment and decree dated 1st August, 1973. The Revenue Appellate Authority, Bikaner dismissed the appeal of the petitioners-plaintiffs vide judgment and decree dated 3rd Nov., 1977 and the Board of Revenue dismissed the second appeal vide judgment and decree dated 16th July, 1989.
3. The suit was filed by above mentioned three plaintiffs in the court of Asstt. Collector, Hanumangarh as back as on 19th April, 1969 alleging that the plaintiffs and defendants are decedents of one Anop Singh. The pedigree is given in para No.1 of the plaint. It is alleged that plaintiffs and defendants-respondents1 grand-father Attar Singh had two brothers Jawla Singh and Gurdayal Singh. They constituted a joint Hindu family. They were possessing agricultural land in village Rodi of Faridkot in State of Punjab. With the expansion in family, the family found it difficult to carry on with the limited source of income from the agricultural land in Punjab, therefore, they decided to purchase agricultural land in Bikaner and, therefore, they purchased the land in the erstwhile State of Bikaner in village Gurusar Tehsil Hanumangarh in the year 1911. The land was duly entered in the Misal Bandobast of the relevant year of 1911. The details of the said land is described in annexed schedule Ka, which is shown in four blocks. One block consisting of six Khasra nos. measuring 597 bigha 7biswas, second block consisting of 5 Khasra nos having total measurement of 512 bighas 7 biswas, third block having 8 khasra nos having measurement of 590 bigha 6 biswas and the last fourth block having 9 khasras nos. measuring 366 bigha 14 biswas. In total, these land descried in schedule Ka is 1967 bigha 4 biswas It is also alleged that land described in schedule Ka was also Khatedari land of plaintiffs and defendants.
4. The plaintiffs further pleaded that since it was difficult to manage the agricultural land at two places, therefore, it was decided that the plaintiffs-ancestor Attar Singh will manage the property situated in village Rodi of Faridkot whereas Attar Singhs brothers Jawla Singh and Gurdayal Singh will look after the agricultural land of village Gurusar in the State of Bikaner. Attar Singh became blind about 10 years before he died and, therefore also, Jawla Singh and Gurdayal Singh continued to manage the property of village Gurusar. However, the family continued as joint family even after the death of Attar Singh. According to plaintiffs because of some dispute between the parties, the plaintiffs and defendants partitioned their agricultural land situated in village Rodi of Punjab, but at that time, the property of village Gurusar was not partitioned. The plaintiffs subsequently came to know that the defendants got the name of Attar Singh removed from the revenue record. Ultimately, plaintiffs demanded their 1/3rd share from the defendants, but that was denied by the defendants and, therefore, they have filed the suit for declaration of their Khatedari rights in the agricultural because of the reason that their names were wrongly removed from the revenue record. The plaintiffs also sought relief of partition and possession of the land of their share.
5. The defendants submitted their written statement and took a specific plea that so far as pedigree is concerned, that is true, but purchase of any property as joint Hindu family property, was denied. The defendants also stated that Attar Singh, Jawala Singh and Gurdayal Singh had separate properties and in their life time, they started living separately and also they were depending upon their separate agricultural lan
