- (1.) THIS petition has been filed challenging the order dated 18-12-2011 passed [in appeal No.1153/2010 filed under Section 224 of the Rajasthan Tenancy Act, 1955 (herein after '1955 Act')] by the Board of Revenue upholding the order dated 16-3-2010 passed by the Revenue Appellate Authority Kota [in Appeal No.37/2007 filed under Section 223 of the 1955 Act] setting aside the judgment and preliminary decree dated 30-3-2007 passed by the Sub Divisional Officer Digod District Kota in a suit No.68/1987 filed under Section 53 of the 1955 Act and passing a decree for partition of agricultural holding in old khasra No.610 admeasuring 19 bighas 2 biswas in village Chiparda Tehsil Digod District Kota and directing that the said holding be divided in equal measure between Kastur Chand and Loman Das (and his successors/ Legal heirs, the petitioners herein).
(2.) THE facts of the case are that the petitioners are successors of late Loman Das. Loman Das and Kastur Chand were the natural sons of one Kalyan Das erstwhile Khatedar of agricultural land in issue. Kastur Chand filed a suit for partition against Loman Das stating therein that his father Kalyan Das was the khatedar of land Khasra No.610 min admeasuring 19 bighas 2 biswas, equivalent to new number 887 and 914 admeasuring 2.07 and 0.64 hectare respectively and subsequent to his death, as joint khatedar of the said land with Loman Das he was entitled to a partition accordingly under Section 53 of the Rajasthan Tenancy Act. In the written statement Loman Das propagated a purported agreement between him and Kastur Chand to resist the suit for partition of the joint estate devolving on the two brothers following their father's death and as recorded in the revenue records on the basis of an earlier purported partition under deed dated 13-7-1984 entered into by the two brothers and acted upon. Vide judgment and preliminary decree dated 30-3-2007, the SDO Digod taking into consideration the purported partition deed dated 13-2-1984 directed the Tehsildar that in the event Kastur Chand and Loman Das were in possession of their respective shares with reference to the partition deed dated 13-7-1984 the plan/ map for partition of land between the parties be prepared accordingly, or alternatively if the parties were not in possession of land in accordance with deed dated 13-7-1984 the Tehsildar should make a plan/ map for partition of the agricultural holding in issue between the parties in the suit in equal measure keeping in view the classification of land in the holding of the deceased Kalyan Das such that parties had equal advantage and disadvantage in respect of the land coming to their respective shares. Aggrieved of the judgment and preliminary decree dated 30-7-2007, Kastur Chand filed an appeal before the Revenue Appellate Authority Kota under Section 223 of the 1955 Act against the LRs/ Successors of Loman Das who appears to have expired during the pendency of the proceedings. The RAA Kota took into consideration the fact that the purported partition deed dated 13-7-1984 denied by Kastur Chand was even otherwise not admissible in evidence because even while purporting to record rights and liability of the parties qua immovable property it was neither adequately stamped nor registered. Reference was made to Parmanand Setia Vs. Somial [2003 (1) DNJ (Raj.) 107] wherein this court has held with reference to Section 17 of the Indian Registration Act, 1908 and Section 23 of the Contract Act, 1872 that a document creating a right and liability in immovable property is required to be mandatorily registered, and if not, was not admissible in evidence. So holding, the RAA Kota further referred to the Jama Bandi 2035 to 2038 Ex.P-1 and khasra Girdawari of Svt.2040 to 2043 Ex.P-2 evidencing the joint khatedari of Kastur Chand with Loman Das to conclude that Kastur Chand was entitled to equal half share in land old khasra No.610 min measuring 19 Bighas 2 Biswas, (new 887 measuring 2.07 hectare and 914 measuring 0.64 hectare) in village Chiparda, Tehsil Digod District Kota. Consequently the RAA Kota vide his order dated 16-3-2010 directed the SDO Digod to proceed accordingly. The appeal filed by Legal Representatives of Loman Das before the Board of Revenue Ajmer under Section 224 of the 1955 Act has since been dismissed vide order dated 18-12-2011. Heard learned counsel for the parties, and perused the material available on record of writ petition including the impugned orders of the courts below.
(3.) COUNSEL for the petitioner has sought to impugn the judgments of the RAA Kota and the Board of Revenue Ajmer primarily on the ground of estoppel against Kastur Chand based on partition deed dated 13-7-1984 allegedly entered into between Kastur Chand and Loman Das. This court however finds no substance in the contentions of petitioner's counsel as it overlooks both the denial of the partition deed dated 13-7-1984 by Kastur Chand as also the fact that the courts below have held that purported partition deed dated 13-7-1984 recording the factum of rights and liabilities in respect of immovable property was not admissible in evidence in view of Section 17 of Indian Registration Act read with Section 49 thereof as it was not registered as required in law. COUNSEL for the petitioner has not even attempted to contend that purported partition deed dated 13-7-1984 between Kastur Chand and Loman Das was admissible in evidence, nor has sought to distinguish the judgment of this Court in the case of Permanad Setia Vs. Somial (supra) whereupon the RAA Kota has disbelieved and negatived the case of the successors of Loman Das and passed a preliminary decree in favour of Kastur Chand on the basis of evidence on record. From the facts on record it is evident that Kastur Chand and Loman Das were natural brothers, recorded as joint khatedars in revenue records after their father's demise and entitled to equal share in the property as devolved to them from their father Kalyan Das, i.e. old Khasra No.610 min admeasuring 19 bighas 2 biswas, new number 887 and 914 admeasuring 2.07 and 0.64 hectare respectively. I am of the considered view that judgment and decree dated 16-3-2010 passed by the Revenue Appellate Authority Kota as upheld vide order dated 18-12-2011 passed by the Board of Revenue Ajmer is founded on the facts on record and obtaining law. The aforesaid orders are not vitiated by any perversity or misdirection in law. For the aforesaid reasons, I find no force in the writ petition and the same is therefore dismissed. ;