- (1.) THIS is second appeal under the Rajasthan Tenancy Act, 1955 against judgment and decree dated 6-5-71 of the Revenue Appellate Authority, Udaipur which was passed in revenue appeal No. 207 of 1970. Purshottam Lal plaintiff brought a suit under Sec. 53 of the Rajasthan Tenancy Act for partition of joint holding on the basis of recorded half share of the plaintiff and the remaining half of the defendants. The suit disclosed a joint holding of khasra Nos. measuring 8 bighas 3 biswas situated in Kapasan. The defendants averred in their written statements that two more khasra Nos. 3857 of 2 biswas and 3858 of 1 bigha 14 biswas were also in joint possession of the two contesting parties and so they should also form the subject matter of partition. The defendants further claimed that private partition had already been effected between the parties in respect of the disputed holding sometime in 1953 and both parties had separated with their share of land and so the question of further partition of the holding did not arise but they admitted that if any such partition had been ever effected by the consent of the parties it was not duly recorded either in the form of an instrument or incorporated in the record of right. According to the record of right the entire holding remained joint and half has been shown to belonging to the plaintiff and half to the defendants.
(2.) THE defendants further claimed that the joint holding in dispute had come from original khatedar Prabhulal whose widow Mst. Bhooribai was alive. Prabhulal had two sons Purshottam Lal who is the plaintiff and Gordhan Lal who has since expired leaving behind Sohanlal. Mohanlal and Giriraj Prasad, sons who are the defendants in the present suit. THE defendants claimed that Mst. Boori Bai was a necessary party to the present suit of partition and that she was entitled to l/3rd share in the disputed holding and 1/3rd share should go to the plaintiff and the rest 1/3rd share to the defendants jointly. The S. D. O. Kapasan as a trial Court framed the issues and heard the parties in respect of issues Nos 2 and 5 which concern legal matters and it passed a judgment and decree on 10-8-70 holding that the disputed joint holding be partitioned equally between the plaintiff and the defendants according to the entries in the record of rights and that Mst. Bhoori Bai widow of Prabhulal was not a necessary party to the present suit of partition of a joint holding under sec. 53 of the Rajasthan Tenancy Act. Aggrieved by this order the defendants went in appeal before the Revenue Appellate Authority, Udaipur who by his judgment and decree dated 6 5-71 rejected the appeal and confirmed the judgment and decree of the trial Court dated 10-8-70. The present second appeal has arisen against the last order. We have heard learned counsel for both the parties and also perused the record. The first point urged before us by the learned counsel for the appellants (defendants) is that Mst. Bhoori Bai was a necessary party to the present dispute and she was entitled to a share in the coparcenary property in dispute according to the Hindu Succession Act. He admits that a female could not ask for partition of a coparcenary property and claim her share therein but if male member of a joint Hindu family moves for partition a female could also claim her share therefrom. He places reliance on A I R. 1936 P. C. 20, A. L R. 1941 Nagpur 135 and A. I. R. 1962 Gujrat 68. He has also cited A. 1. R. 1928 All. 330 in support of his contention that when there is a partition amongst the Hindu son and grand son of a female the female is entitled to a share equal to that person as well as A. I. R. 1946 Nagpur 206 in support of the same contention. The learned counsel for the respondent (plaintiff) has replied that under sec. 53 of the Rajasthan Tenancy Act there is provision of a joint agricultural holding between its co-tenants. In the case of co-tenants adverse possession cannot be presumed for until the partition if effected the possession of all the co-enants is common over the disputed joint agricuitural holding. Consequently a person claiming adverse possession cannot sue for partition. The partition is only contemplated between the co-tenants possessing the same rights. The record of rights plays a very important part to establish the recorded share of various co-tenants of a joint agricultural holding and such a holding can be partitioned under the Rajasthan Tenancy Act on the basis of such shares. A joint agricultural holding is not a coparcenary property which is governed by the provisions of the Hindu Law. Both the trial Court as well as the first appellate court of Revenue Appellate Authority, Udaipur have come to the concurrent finding in the present dispute that the joint holding in question could be partitioned between the plaintiff and the defendants of the basis on their recorded shares in the record of rights in force Consequently he has argued that the 'concurrent findings of the two courts below should not be lightly interfered with in second appeal as held in A. I. R. 1959 S. G. 57. Their Lordships of the Supreme Court have held in this judgment that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. We find that it was never established before the two lower courts that the joint agricultural holding in dispute originally belonged to Prabulal. According to the record of right in force Purshottamlal plaintiff has been recorded as a co-tenant of half share along with Sohanlal, Mohanlal and Giriraj Prasad defendants jointly as of half share. There is no evidence that this joint holding was ever partitioned privately between the parties at any stage of time. The two lower courts have therefore, come to a concurrent finding of fact that the disputed joint agricultural holding could be partitioned between the two contesting parties before us on the basis of their recorded shares in the subsisting record of right. Mst. Bhoori Bai who is reported to be the widow of Prabhulal never claimed her share in the joint holding after the death of her husband and her name has not been recorded in the record of right. The two lower courts have therefore, rightly come to the conclusion that the is not a necessary party to the present dispute of partition and that the cannot claim any share in it. The entries in the record of right are to be presumed to be correct unless rebutted under sec. 140 of the Rajasthan Land Revenue Act. The entries in the record of right on the basis of which the partition is being sought of the joint holding in the present dispute have not been successfully rebutted by the defendants at any stage. We cannot, therefore, place any reliance on the rulings cited by the learned counsel for the appellants viz. 1928 All. 330, A. I. R. 1946 Nagpur 206. 1939 PC 20, 1941 Nagpur 135 and 1962 Gujrat 61 to come to the conclusion that Mst. Bhoori Bai is a necessary party to the present subject matter of partition of a joint holding and that she could claim share therein, for coparcenary character of the joint agricultural holding has not been established before the two courts below. This very objection was raised before the two subordinate courts but they have overruled them. AIR 1970 All. 130 is not applicable to the circumstances of the present case. In a suit for partition of joint agricultural holding the recorded shares of the co-tenants have necessarily to be looked in to and partition of such a holding is to be effected according to their recorded shares. The second point raised by the learned counsel for the appellants (defendants) is that the trial court did not give them adequate opportunity to produce evidence in support of issues Nos. 2 and 5 framed by the trial Court The appellants claim that they had never refused to adduce evidence in support of their contention in respect of these issues. The learned counsel for the respondent (plaintiff) has pointed out that the defendants did not want to produce any evidence. Their counsel merely wanted to argue in respect of issues Nos. 2 and 5 before the trial Court and this was permitted. The record of proceedings maintained by the trial Court is very clear on this point and the proceedings of the trial Court should be presumed to be true. We have looked into the record of proceedings of the court of S. D. O. Kapasan. We find that the court ordered on 16-4-70 that the counsel for the defendants wants to argue in respect of issue No. 2 and so a date was fixed. Subsequently issue No. 5 was framed and the courts ordered on 7-7-70 that arguments will be heard in respect of issue No. 2 and 5 as desired by the parties. Ultimately the arguments were heard in respect of both the issues on 3-8-70. The order dated 3 8-70 also further makes it clear that both the parties are agreed to partition the disputed joint agricultural holding between the plaintiff and the defendants in equal shares and they do not want to produce any more evidence. All these proceedings make it amply clear that mere arguments were sought to be produced before the trial Court in respect of issues Nos. 2 and 5 and after hearing judgment of the trial Court in respect of these issues both the parties agreed to partition equally the joint holding in the dispute without resorting to the necessity of producing any more evidence. This fact has been reiterated twice in the order of the court dated 3-8-70. Consequently the objection raised by the learned counsel for the appellants (defendants) that they were not given any opportunity to produce evidence in support of their contentions cannot be sustained. As a matter of fact both parties have consented to the partition of the joint agricultural holding in dispute on the basis of their recorded shares and the trial Court has passed preliminary decree to this effect on 10-8-70. We further find that the Hindu Succession Act, 1956 does not affect the partition of a joint agricultural holding. This Act applies to devolution of coparcenary property by succession. Consequently this Act does not apply to the partition of a joint argi-cultural holding between co-tenants under Sec. 53 of the Rajasthan Tenancy Act, 1955.
(3.) IN the circumstances we see no substance in this second appeal which is hereby dismissed with costs and the judgment and decree dated 6-5 71 of the Revenue Appellate Authority, Udaipur is hereby confirmed. The amended Sec 54a of the Rajasthan Tenancy Act, 1955 should be kept in view while effecting partition of a joint holding in the present case. .;