M. L. JAIN, J. -
(1.)THIS writ petition is directed against the order of the Board of Revenue dated July 13, 1976 (Anx. 5), whereby, the revision petition was dismissed and the remand order of the Revenue Appellate Authority, Kota dated January 15, 1976 (Anx. 4) was set aside and the order of the Assistant Collector, Baran dated December 12, 1975 (Anx. 3) was upheld.
(2.)THE ceiling proceedings were initiated against the petitioners Prabhulal and Mangilal under the Old Law. Prabhulal and Mangilal are real brothers being the sons of Ram Narain. Mangilal has two adult sons viz. Ramkishan and Ramdayal. THEir case is that the entire land was ancestral. After the death of Shri Ramnarain, the land was recorded in the names of his two sons Mangilal and Prabhulal. THEir ancestral land was divided some 13-14 years ago. A further petition has taken place of the share of Mangilal between him and his two sons Ramkishan and Ramdayal. In reply to the notice, the specific land, which has fallen to their share was mentioned and in the affidavit, filed by the petitioner Mangilal, it was stated that both of his sons had been living separately for more than 10 years and has been cultivating the land separately. THE learned Asst. Collector, Baran held that the petitioners have failed to prove that the land is an ancestral one, so considering both the brothers as co-tenants of the land he held that both are entitled to 30 standard Acres and the remaining land measuring 69-52 Standard Acres is liable to be resumed. THE petitioners Prabhu Lal and Mangilal went in appeal before the Revenue Appellate Authority. Documentary evidence was produced by them to establish that the land was recorded in the name of their father and after the death of their father Ramnarain, the land devolved in them and were recorded as joint khatedar. THEy produced the order of the Assistant Settlement Officer-cum-Assistant Record Officer dated July 16, 1959 and Jamabandi's of S. Y. 2007 to 2010 and 2008 to 2011 along with the copy of comparative table Khasras. THE Revenue Appellate Authority found on. the basis of the documents that it is proved that the land is ancestral one. THE Revenue Appellate Authority further considered that out of total holding, Prabhulal had 1/2 share to the extent of 74. 76 Standard Acres and as a member of his family do not exceed 5, so he is entitled to retain 30 Standard Acres. THE remaining land of his share measuring 44-76 Standard Acres is liable to be resumed.
In respect of the share of Mangilal, the transfer made in favour of his daughters, was not recognised, but it was observed that the Assistant Collector should have considered the case of Mangilal and his sons in the manner as to whether on 1. 4. 19156, they were cultivating their share separately and were not dependant on their father. The enquiry should have been conducted, keeping in view, rule 17 (4) of the Rajasthan Tenancy (Fixation of Ceiling of Land) Government, Rules, 1963. The order of the Assistant Collector, in respect of 1/2 share of Mangilal was set aside as the same was passed without taking into consideration the separate share of the sons of Mangilal, and in respect of the case of Mangilal and his two major sons, the matter was remanded back and the Assistant Collector was directed to decide the matter in accordance with law. The petitioners preferred a revision petition before the Board of Revenue. The Board of Revenue set aside the order of the Revenue Appellate Authority and upheld the order of the Assistant Collector.
I have heard Mr. R. N. Surolia, learned counsel for the petitioners and Mr. N. L. Pareek, Learned Additional Government Advocate for the State.
So far as the case of the petitioner Prabhulal is concerned, suffice it to say that admittedly, he had 1/2 share in the total holding and his ceiling area is determined, taking into account his 1/2 share; one half of the total holding comes to 69 Standard Acres out of that he is only entitled to keep 30 Standard Acres, so his case does not require any consideration.
As regards, the case of Mangilal and his two sons, it may be mentioned that from the very beginning, their case has been that the ancestral land, which fell into the share of Mangilal, was divided between him and his two sons and as, such a division had taken place more than 10 years ago and his two sons were living separately and cultivating their share of the land, which was their specific case, it was obligatory for the Assistant Collector to have enquired into the case pleaded by them and he should have recorded the finding as to whether the two sons were major on 1-4-1966, were holding their shares of the land separately and were not in any way dependent on their father. It appears that such a case has not been examined in view of the fact that the petitioners were not able to establish before the Assistant Collector that land was ancestral land. However, sufficient documentary evidence was produced before the Revenue Appellate Authority. It was found by the Revenue Appellate Authority that it is established that the land was originally recorded in the name of Ram Naraian and after his death, the land devolved on his two sons and grand sons and the land came to be recorded in the names of his two sons. It is in view of the finding that the land is ancestral one, the Revenue Appellate Authority rightly thought that the matter should be sent back to the Assistant Collector, for enquiring into the question as to whether the sons of Mangilal were major on 1-4-66 and were not dependant on their father, as they were living separately and cultivating their own shares of the land. It may be mentioned that the shares of Ram Kishan and Ramdayal can be clubbed with their father only when it is found that they are dependant on their father. If they are not dependant on their father, they along with their father will not constitute family within the meaning of clause (a) Sec. 30-B of the Rajasthan Tenancy Act, 1955. In the statutory definition of the word 'family' the consideration is made to dependency of children and grand-children and consideration has not been made to the minority, and majority so a finding has to be arrived at, in order to constitute 'family' as to whether the children and grand-children are dependant on their parents. Mangilal's specific case was that his two sons were adult and were living separately from him and cultivating their own shares of the land independently. In my opinion, the Board of Revenue was not right in observing that the entire holding in the name of the head of the Joint Family will be assessed as if. it is his own. The question has to be considered and decided in the light of the definition of the word 'family' and rule 17 (4) of the aforesaid Rules. In this view of the matter, the order of the Board of Revenue is quashed and set aside and the order of the Revenue Appellate Authority is restored and in view of the order of the Revenue Appellate Authority, the Assistant Collector is directed to decide the Ceiling Area of Mangilal and his two sons in the light of the observation made above.
(3.)THE writ petition is partly allowed as aforesaid. THE parties are left to bear their own costs. .