- (1.) THE present writ petition arises out of ceilling proceedings under chapter III B of the Rajasthan Tenancy Act, 1955 (for short 'old Ceilling law' ). THE assessee in this case was one Saraswati Das who died in April, 1972 and as such till the appointed date 1. 04. 1966 he was alive. Ceiling proceedings under the aforesaid Chapter III B of the Old Ceilling Law were initiated against the aforesaid assessee Sarawasti Das and the Sub-Divisional Officer, Gulabpura, under his order dt. 15. 12. 1971 held that Saraswati Das was in possession of 184 standard acres of land in excess of his ceiling area. An appeal was filed against the aforesaid order of S. D. O. before the learned Revenue Appellate Authority, Udaipur and the said authority under his order dated 24. 7. 1974 partly allowed the appeal and held that 140 standard acres of land of Saraswati Das and his wife and 24 standard acres of land of Purshottom was liable to be resumed being excess of the ceiling area of Saraswati Das. He remanded the case to the S. D. O. with a direction that an opportunity be given to the appellants to give an option to retain the land. THE said order of Revenue Appellate Authority was challenged by the revision before the Board of Revenue and the Board of Revenue under his order dated 26. 05. 1977 dismissed the revision petition. Reveiw petition was also filed of 'the aforesaid order before the Board of Revenue and the Board of Revenue vide its order dated 30. 6. 80 dismissed the same.
(2.) AFTER the decision of the case by the Revenue Appellate Authority and remand of the case for exercise of option by the assessees, the S. D. O. held that because the assessees had failed to exercise their option, they are not entitled to exercise any option. It appears that in the option proceedings on behalf of assessees certain objections were also raised and under the aforesaid objections as attempt was made to reopen the matter so far as vesting of excess vacant land in the State in concerned but the learned S. D. O. refused to go into that question. Again the order of S. D. O. refusing to allow the assessees to reagitate the points and refusing to give an opportunity to exercise option, the matter was again taken before the Revenue Appellate Authority who by his order dated 11. 7. 75 rejected the appeal against the order of S. D. O. Gulabpura dated 29. 5. 75 and, so again a revision petition was filed against the aforesaid order before the Board of Revenue and the Board of Revenue vide its order dated 1. 03. 1977 rejected the revision petition. In assailing the afresaid judgment/ order of the Revenue Authorities and moreso of the Board of Revenue, learned counsel for the petitioner has contended that the land in dispute was Muafi land, was ancestorarl of Saraswati Das and, therefore, his sons and daughters had a right by birth and therefore, they were entitled to get separate share of the land and this fact was not taken into consideration by any of the Revenue Authorities. It was also contended by the learned counsel that merely because the time upto which options were to be given had expired and nonetheless it was not correct to deny him opportunity to exercise option again in the matter of ceiling of the land. Admittedly Muafi lands were resumed u/s. 22 of the Rajasthan Land Reforms & Resumption of Jagirs Act, 1952 (for short the Act) in between 1959 to 1968. U/sec. 22 consequences of resumption are stated and so far as the rights of the Muafidar and concerned they stood resumed to the State and vested in the State but u/s. 23 of that Act and more so under sub sec. (1) (a) so far as the Khudkasht of Jagirdar including a Muafidar. are concerned they continued to be held by the Muafidar. U/sec. 10 of that Act as from the date of resumption of any Jagir land, any Khudkasht land of Jagirdar shall be deemed to be held by the Jagirdar as a Khatedar tenant and shall be assessed at the village date. Therefore, from the date of resumption of the jagir, so far as Muafidar is concerned he became Khatedar of the land in dispute. It cannot in our opinion be said that so far as the aforesaid khatedari land is concerned it became ancestral. Learned counsel for the petitioner has referred to the reply filed by the State to the case set up by the petitioner in para 14 of his petition in order to show that State does not dispute that Muafi land was ancestral property. Sub-para (2) of para 14 of the reply of the State it is stated that the contents of this sub-para of the writ petition are admitted to this extent that the land which stood in the name of decased Saraswati Das was ancestral land and he had his forefathers were Muafidars. It was not obligatory on the part of the Sub-Divisional Officer to make an enquiry regarding the partition because the Muafi land of late Shri Saraswati Dass was resumed by the State of Rajasthan and after resumption of this land the Khatedari rights were conferred on decreased Sarasawti Dass. Petitioner no. 3 Shiv Das and daughters of deceased Saraswati Dass were not entitled to their shares because they were residing jointly with the Khatedars. The order passed by the learned Sub-Divisional Officer is valid, just and legal and was according to the provisions of Old Ceiling Law. It will appear from the extracted Sub para (2) of Para 14 of the reply of the State that so far as the Muafi land of Saraswati Dass is concerned it is admittedly ancestral but it is stated that after resumption of the Muafi the Khatedari rights were conferred on Saraswati Dass only. The question, therefore, is as to whether the land which was khudkasht land of Saraswati Dass which was resumed as a result of abolition of Jamindari and Muafisari on which a right can be claimed on the ground that it was also ancestral? In earlier part of order we have already referred to the relevant provisions of the Act and it can be said that so far as the Muafi land is concerned except to the extent of Khudkasht of which Sarasawti Das has become Khatedar tenant it stood resumed and all rights came to an end. Therefore, it was Saraswati Das who became Khatedar tenant under the provisions of the Act after abolition of Muafi and it cannot be said that the land held by Sarsawti Das was ancestral in the sense as aforesaid. We have already extracted sub-para (2) of para 14 of the reply filed by the respondents and at the cost of writ petition we are unable to read any admission of the respondents that the land in dispute was ancestral land of Saraswati Das. It has been clearly stated in the sub-para (2) of para 14 that no doubt Muafi was ancestral but after its resumption Khatedari rights were conferred on deceased Saraswati Dass and there is no admission that the land on which Khatedari rights were conferred on Saraswati Das was ancestral land. Therefore, it cannot be said as submitted by the learned counsel for the petitioner that it is admitted case of the respondent State that the land in dispute is ancestral and, therefore, the petitioner are also entitled to get share of the land.
(3.) LEARNED Revenue Courts have not recognised that partition, which was not through the court and which was not under a registered document, as it was done with a view to defeat the provisions of law. Deceased Saraswati Das or the petitioners never came out as to when the alleged partition through an unregistered dead took place. In the reply it is stated that despite opportunities Saraswati Das did not produce the alleged partition deed. Revenue Courts have not placed reliance on the alleged partition for the reasons stated and we find no reason to interfere with the aforesaid finding in view of the fact that the partition is said to be an unregistered and that too was not filed before the authorities. So far as the merits of the case are concerned we find no case for interference. The question as to whether petitioners still be given opportunity to exercise option. No doubt, Revenue Appellate Authority had fixed a date upto which the assessee was required to exercise its option but the same was not exercised. We do not find equitable to deny that opportunity to the petitioners even now in giving option and accepting the same. The provisions of the Old Ceiling Law will have to be taken into consideration and option can only be given for unencumbered land and not for the land which is encumbered. We allow the writ petition only to the extent and direct the S. D. O. , Gulabpura to give an opportunity to the petitioner to execute option under the provisions of the law. The petitioner will be free to exercise option within a period of two months. . ;