Alok Sharma, J. - (1.) THE petitioners -defendants (hereinafter "the defendants") are aggrieved of the judgment dated 02.11.2010, passed by the Board of Revenue, Rajasthan, Ajmer (hereinafter "the Board") setting aside the judgment and decree dated 16.09 2009 passed by the Revenue Appellate Authority, Sawai Madhopur (hereinafter "RAA") and restoring that of the Sub -Divisional Officer, Sawai Madhopur (hereinafter "SDO") passed on 06.04.2009.
(2.) THE respondents -plaintiffs (hereinafter "the plaintiffs') laid a suit before the SDO, Sawai Madhopur stating that the plaintiffs and the defendants had a common ancestor, one Gangabishan. It was submitted that since the time of the common ancestor, the family was in possession of 12 bigha 13 biswas of agriculture land in village Kutalpura Jatan, Tehsil and District Sawai Madhopur in the khasra detailed (hereinafter "the suit land"). Subsequent to the death of the common ancestor, Ganga Bishan, with the coming into force the Rajasthan Tenancy Act 1955 (hereinafter "the Act of 1955") entries in the record of rights were made of those in possession and recorded as sub -tenants in respect of khasra Nos. 71, 80, 76/2 and 76/3 in a jumbled up manner reflecting the name of the father of the plaintiffs, Sonaram in some of the khasras (i.e. 80 and 76/2) in Samvat 2013 -2016 and not the others, as was so in respect of the fathers of the defendants, Birdya and Kalya in some of the khasras in issue Nos. 71 and 76/3 and not the others. It was submitted that thus even though the khatedari recorded in the revenue records was not reflective of cultivatory possession, yet in the context of the fact of the suit land devolving upon both on the father of the plaintiffs and the fathers of the defendants from Gangabishan, the khatedari land partook the character of ancestral land in which each of the three sons of Gangabishan, i.e. Sonaram, Kalya and Birdya, as the eldest had equal rights. It was submitted that after Jamabandi of Samvat 2013 to 2016 equivalent to year 1956 to 1959 in respect of khasra Nos. 80 and 76/3 in the name of the plaintiffs' father Sonaram was unlawfully deleted from the record of rights and instead the khatedari in the said khasras reflected in the name of the fathers of the defendants. This, in the circumstances, entailed a dispute, resulting in the lodging of First Information Report dated 13.10.1999. Thereupon the matter was compromised on 18.10.1999 whereunder the share of the plaintiffs to an extent of 1/3 in the ancestral land ad measuring in the aggregate 12 bighas 13 biswas was admitted with an assurance of necessary correction being sought for in the revenue records to reflect the actual possession in equal measure on the ground. Yet as agreed, the compromise was not effectuated for reasons of the failure of the defendants to facilitate the correction of revenue entries accordingly in terms of the compromise reflective of the longstanding arrangements on/the ground. It was submitted that on or about 10.01.2001, on the defendants finally refusing to visit the Tehsildar's office for the required correction in the record of rights in terms of the compromise dated 18.10.1999 and contrarily seeking to restrain the plaintiffs from plowing the agriculture fields falling to their share and in their possession, the suit had to be laid for the reliefs as detailed hereinabove. On service of notice of the plaint, the defendants filed a written statement of denial. It was submitted that the land in khasra Nos. 71 and 80 belonged to Birdya and Kalya @ Kalu, the fathers of defendants, who admittedly were the brothers of the father of the plaintiffs i.e. Sonaram. Land in khasra No. 76/3 was stated to be in the khatedari of Birdya alone as per mutation No. 36 dated 20.02.1960 and following his death, mutation No. 116 was opened in the name of the defendants. The compromise with the plaintiffs was denied and it was asserted that the suit land was not ancestral. The suit land was instead claimed to be self acquired property of the fathers of the defendants consequent to which the plaintiffs were stated to have no right, title or interest therein. Dismissal of the suit was sought.
(3.) ON the basis of the pleadings of the parties, the SDO framed five issues, which are as under: ;