- (1.) THIS revision, which has however been wrongly styled as appeal, has been filed against an order of the Additional Commissioner, Jodhpur, dated 17. 12. 53 in a case relating to grant of patta under the Marwar Patta Act.
(2.) WE have heard the parties and have examined the record as well. The facts of the case are not much in dispute. Sevaram and Haridas were two brothers who WEre in joint possession of the house in dispute. After Hari Dass' death his widow, Mst. Rupa, opposite party, applied for grant of a patta of the apartments in her possession alleging that a partition of the property had taken place. The applicant Sevaram raised an objection to the effect that no partition had ever taken place and that Mst. Rupa was not entitled to any patta as he was the sole surviving coparcener, of the joint property. The Patta Committee held that Mst. Rupa had a right of residence and maintenance in the house and therefore it would be in the fairness of things to issue a patta of the entire property in the name of both the parties, so that "any intending purchaser of the property would twice think over the matter and then only take the plunge. It is with a view to safeguard this interest of the applicant (Mst. Rupa) that we think it desirable to grant a patta in their joint names. " The learned Additional Commissioner also agreed with the Patta Committee that the alleged partition was not proved in the case. He upheld the decision of the Patta Committee on the ground that the question of rights and titles of parties was not to be gone into under the Marwar Patta Act and as Mst. Rupa was in possession of the house her name should also appear in the patta. It is no doubt true that pattas under the Marwar patta Act are to be granted to the persons in occupation without going deeply into disputes regarding title which is within the competence of civil courts. But the term 'person in occupation' has itself been defined in sec. 6 of the Act. In view of this definition the nature of possession or occupation is to be ascertained before granting the patta. Where possession is alleged to be on the basis of succession or inheritance is should be clear that there is a substantial basis for this claim. Where there exists no claim whatsoever to receive the property through succession or inheritance, evidently it follows that a patta cannot be granted merely on the basis of occupation As in the present case all the lower courts have agreed on the finding that there was no partition of the property and as such it devolved upon the applicant Sevaram by virtue of his being the sole surviving co-parcener, Mst. Rupa has only a right of maintenance or residence in the house. The consideration of safeguarding this right against a future alienation by Sevaram is hardly germane to the present case. It would be open to Mst. Rupa to agitate for the recognition of this right as and when it may be necessary. As she has not acquired the property through inheritance or succession her claim for the grant of a patta cannot be upheld. We may also observe that the applicant Sevaram had not applied for the grant of a patta in his own name and hence it would not be proper to grant him a patta in these proceedings. The counsel for the opposite party was granted adequate time for production of any precedent wherein a patta may have been granted to a widow of a deceased co-parcener, where no partition of the joint property had taken place during the life time of the widow's husband. He expressed his inability to cite any such instance before us. Another objection raised by the counsel for the opposite party is to the effect that since the lower courts had jurisdiction to decide the case and its findings were based on considerations of law and fact the Board had no jurisdiction to interfere in revision. He has cited RLW 1953 page 40 in support of his contention. This case has no application to the present case inasmuch as revisional jurisdiction under the Marwar Patta Act is much wider from that under Sec. 115 of the Civil Procedure Code. Sec. 34 of the Marwar Patta Act which deals with revisions reads as follows: - "nothing in these rules shall be deemed to limit the right of the Darbar in any case and of the Mehkma Khas (now Board of Revenue) in the case of proceedings before Hakim, the Hawal Superintendent and the Superintendents, to call for, examine, review, rescind, alter, modify or otherwise deal with any orders passed in any proceedings under these rules, but no application for review under this section shall be entertained if preferred by a person who had the right of appeal but failed to exercise it within the period fixed by rule. " Thus the powers of the Board extend to rescinding, altering, modifying or otherwise dealing with any orders passed in any proceedings under this Act. It may also be observed that as Sevaram had not applied for grant of a patta, there had been a material irregularity in granting a patta in his name and the Board would be justified in exercising its revisional jurisdiction. We would, therefore, allow this revision, set aside the orders of the lower courts and direct that the application of Mst. Rupa for the grant of a patta shall stand rejected throughout. .;