K.C. AGRAWAL, CJ. - (1.) -
(2.) THIS writ petition, under Article 226 of the Constitution of India, has been filed by the heirs and legal representatives of one Devi Singh, residents of village Devalia Kalan, Tehsil Kekri District Ajmer against the judgment of the Board of Revenue dated 4-8-1976 holding that Devi Singh held land in excess of the ceiling area and, as such, the same was liable to be acquired under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter to be referred to as 'the Act')- Briefly stated, the facts are these. On 30.09.1964, Devi Singh filed a declaration under Rule 9 of the Rajasthan Tenancy (Fixation of Ceiling on Land) Government Rules, 1963 (hereinafter to be referred to as 'the Rules. ). On 5.05.1989, the S.D.O. dropped the matter as the State Government at that time did not contemplate proceeding with cases involving holdings of land below 90 standard acres. In the meantime, the ceiling area was reduced to 30 standard acres and thereupon the proceedings were reopened by giving a notice under Rule 11 to Devi Singh. Devi Singh filed the reply claiming that he was not in possession of land in excess of the ceiling and claimed exhibition of the land transferred in the year 1967 and again on 30.05.1970. The S.D.O. did not recognize the transfers of 1967 on the ground that Devi Singh had failed to establish that those transfers were made in favour of agriculturists as it was then required. The transfers of the year 1970 were also not recognized on the finding that they were not in the category specified in Section 30 J of the Rajas-than Tenancy Act. In computing the total holding, the S.D.O. included the land of Smt. Kirti Kumari, the deceased wife of Devi Singh and held that the land measuring 100.96 standard acre was in excess of ceiling area. On the said finding, the Tehsildar, Kekri was directed to take possession of the land declared surplus. He was further directed by the S.D.O. to proceed in accordance with sub-sections (3) and (4) of Section 30 E of the Rajasthan Tenancy Act. Devi Singh appealed against the judgment of the S.D.O. During the pendency of the appeal, he died and names of his widow & sons were substituted. In the appeal, 8 points were argued which have been narrated in the judgment of the Revenue Appellate Authority. The Revenue Appellate Authority reversed the judgment of the S.D.O. and remanded the case back to the S.D.O. for a fresh decision in the light of the observations mentioned by it. One of the grounds mentioned for remand is stated in paragraph 35 of the judgment which reads as under: "It is contended, that Chapter III B contemplates only two stages in divesting the land holders of surplus land. The first is voluntary surrender and the second is ejectment and therefore the provisions contained in Chapter 3 of the Rules, providing for determination of ceiling area are ultra vires. I do not agree with this contention. Determination of surplus area is necessary before proceedings for ejectment can be initiated and a provision in the rules in this respect is a provision for carrying into effect the provisions of the Act. The validity of this Chapter cannot be questioned on this score." Against the said judgment, the State of Rajasthan went up in revision to the Board of Revenue which upheld the plea of clubbing the area of land owned or recorded in the name of Smt. Kirti Kumari, who died prior to 1-4-1966 and found that the area determined as surplus by the S.D.O., was correct. Hence, the order of the S.D.O. Kekri was restored with the modification that an opportunity would be given to the petitioners to select the land which they like to retain. Against the said judgment, the present writ petition has been filed. The first point urged by the learned counsel for the petitioners was that in the absence of the issues being framed, the S.D.O. was not right in deciding the controversy of fact which came up before him for decision. Hence. the judgment of the S.D.O. was liable to be quashed. Issues are framed for a right decision of the case with an object to pin point the real and substantial points of difference between the parties specifically and unambiguously emerging out of the pleadings. In order that the material points in controversy may be rightly decided and there may be finality in litigation. In the instant case, from none of the judgments, it is clear that the petitioners wanted framing of issues for decision. In the appeal, points for decision were framed and, thereafter, those points were decided by the Revenue Appellate Authority, and, thereafter, by the Board of Revenue.
(3.) IT is indisputable that where the parties well understood the two cases opposed to each other and led all the evidence in support of their contentions, the absence of an issue cannot be said to be fatal to the case or that there was mistrial. (See Kunju vs. Philip (1) and Girdharsingh v/s Gokul From these decisions, it is clear that the mere omission to frame an issue on a matter in controversy between the parties cannot be regarded as fatal unless, upon examination of the record, it is found that the failure to frame the issue had resulted in the parties having gone to the trial without knowing that the said question was in issue between them. In the instant case, the controversy from the very beginning was about the transfers made in the years 1967 and 1970. The landholder pleaded that they were valid transfers whereas the stand of the State Government was that they were not recognizable under the Rajasthan Tenancy Act. As such, the parties had the notice of the controversy and they produced the materials thereon and argued the matter fully before the S.D.O. and in appeal. The petitioners did not raise any grievance in the appeal. Consequently, it is difficult to permit them to raise this question in this writ petition under Article 226 of the Constitution and quash the judgments of the Board of Revenue and the S.D.O. Before the Board of Revenue also, the controversy was argued at length. Under the Ceiling Act, the area to be determined is that of family. The words 'Ceiling area' and 'Family' are defined in the Rajasthan Tenancy Act, 1955. Sub-section 6(A) of Section-5 defines 'Ceiling area' which reads as under. "Ceiling area' in relation to land held any where through out the State by a person in any capacity whatsoever, shall mean the maximum area of land that may be fixed as ceiling area under section 30-C in relation to such person." The word 'Family' is defined in Section 30-B (a) which reads as under: "family' shall mean a family consisting of a husband and wife, their children and grand-children being dependent on them and the widowed mother of the husband so dependent." ;