BALIA, J. - (1.) THESE two petitions arise out of the same proceedings under Chapter III-B of the Rajasthan Tenancy Act in the matter of determining the ceiling area of agricultural land held by one Bhani Singh son of Shri Panney Singh of village Balasar Tehsil Nohar District Ganga Nagar.
(2.) THE facts which give rise to these petitions are as under :- The petitioner in both the petitions purchased agricultural lands from Bhani Singh vide registered sale-deed dt. 3/10/63 and the same were mutated in their favour in December, 1963. Since then, they are in possession of the lands in dispute. The said Bhani Singh filed a return under Chapter III B of the Rajasthan Tenancy Act on 29/9/65 declaring the lands held by him for the purposes of ceiling. In the said return, said Bhani Singh also stated lands including the one in dispute, transferred by him and which were not to be recognised for the purposes of determining the ceiling area. During the course of said proceedings, said Bhani Singh also appears to have given option for the lands which he intended to retain with him and which he intended to surrender as surplus land. No notice of these proceedings was given to the transferees of the said land. According to the option given by said Bhani Singh, he chose to retain lands which were in his possession upto the ceiling area. Additional lands remaining in his possession and the lands transferred, which were not recognised for the purpose of ceiling and which were in the possession of the transferees, were offered as surrender of surplus lands in terms of Sec. 30-E. The Sub Divisional Officer, Nohar passed an order on 6/9/75 (Ex. 8) determining the ceiling area in respect of Bhani Singh specifying the lands to be permitted to be retained by the said Bhani Singh and also specifying the lands which were to be acquired under ceiling. Against the aforesaid order, petitioners preferred appeal before the Revenue Appellate Authority impleading Bhani Singh as a respondent. Their appeal was dismissed vide Annex. 10 dated 26. 3. 76 by the Revenue Appellate Authority, Jaipur. The petitioners filed a revision before the Board of Revenue. The Board of Revenue vide its order dated 21. 10. 1976 (Annex. 12) partly accepted the revision filed by the petitioner. While upholding the determination of the ceiling area and holding that transferees have no right to be heard, the Board was of the opinion that under the provisions of Sec. 30 E of the Act, acceptance of option by the S. D. O. of surrendering the transferred land while the tenant himself was in possession of unencumbered land, was contrary to the provisions of the Act & learned S. D. O. has committed an error. In view of this , the Board remanded the case back to the S. D. O. with the direction that the S. D. O. should accept the surrender of unencumbered land to the extent it is available with Bhani Singh and if that land is insufficient then the land sold to the petitioners and others may be considered for acquisition. After the aforesaid order Ex. 12 was made with which the petitioners were satisfied, an application was moved by Srnt, Nan Kanwar and others, respondents No. 5 to 11 alleging themselves to be the Legal Representatives of Bhani Singh inter alia on the ground that the revision filed by the petitioners before the Board of Revenue was not maintainable being against a dead person, inasmuch as, Bhani Singh had died as far as back on 2/5/75 and the judgment which was delivered against a dead person was also nullity. This plea of the L. Rs. of Bhani Singh found favour with the Board and by its order dated 14/10/80, the Board declared that the order passed by the Board of Revenue on 21/10/76 (Ex. 12) was a nullity and the revision should be heard now on merits and subsequently by another order dated 4/12/80 (Ex. 16), the revision petition itself was dismissed as not maintainable having been filed against a dead person. The petitioners filed a revision petition alleging that the date of death of Bhani Singh disclosed by the Legal Representatives appears to be incorrect and if the date of death, disclosed by the L. Rs. of Bhani Singh is taken to be correct then all the proceedings including the order passed by the S. D. O. will be nullity as the same also have been passed against a dead person. This review application filed by the petitioner was dismissed by order dated 5. 1. 81 (Ex. 16 ). Hence these petitions before us. No return has been filed on behalf of any other respondents.
(3.) WE have heard Mr. Vijay Bishnoi, learned counsel appearing for the petitioners and Mr. Dave, learned Addl. Govt. Advocate. It was contended by Mr. Bishnoi, learned counsel appearing for the petitioners that if an order passed against a dead person under the ceiling proceedings, is held to be nullity then all the proceedings including the determination of ceiling by the S. D. O. ought to have been declared as nullity, inasmuch as when admittedly the deceased Bhani Singh had died on 2. 5. 75 much before the order dated 6. 9. 75 Ex. 8 was passed, the original order itself cannot be allowed to stand and the proceedings should have been continued only after bringing the L. Rs. on record. In the alternative, it was argued by the learned counsel that at any rate, the acceptance of option given by Bhani Singh for surrendering the transferred land as surplus land and retaining the unencumbered land in his own possession was contrary to the provisions of Chapter III B particularly of Sec. 30 E. According to the learned counsel, it is mandate of law that the holder must first surrender the remaining land in his possession which is unencumbered and if that land is not sufficient to the extent of acquisition, ordered under the ceiling proceedings then only the lands transferred could be surrendered for acquisition. Learned counsel has placed reliance on two decisions of this Court rendered in Banwarilal Vs. State of Rajasthan (1) and in Kastoor Chand & Ors. Vs. State of Rajasthan and Others (2 ). On the other hand, learned Addl, Govt, Advocate contended that the petitioner being transferees of the land, they have no locus standi to challenge the order passed under the provisions of Chapter HI B in any manner and, therefore, these petitions ought not to be entertained. ;