Mohammad Rafiq, J. - (1.) This writ petition has been filed by Nathu against judgment dated 24.03.2000 of the Board of Revenue. The Board of Revenue by aforesaid judgment, while dismissing appeal of petitioner, affirmed judgments dated 30.01.1999 of the Revenue Appellate Authority, Ajmer, and that of the Assistant Collector, Ajmer, dated 28.02.1998.
(2.) Nathu (petitioner), Ramdhan (respondent No. 2) and Dhonkal (respondent No. 3) were real brothers. According to petitioner, they were formerly co -tenants in the land, which was part of old Khata No. 81 and new Khata No. 86 measuring approximately 32 bigha 18 biswa situated in village Gaderi, Tehsil Nasirabad, District Ajmer. According to petitioner, respondent No. 2 sold his share of land in Khata No. 86 by sale -deed dated 31.01.1983 half each to both, petitioner and Narain S/o. Sujan Gujar. The sale -deed was registered on 09.02.1983 in the office of the Registrar. Sale -deed contains the stipulation that it was a conditional sale wherefore the seller had executed a separate agreement with the buyer. Petitioner and aforesaid Narain got said land mutated in their names in the revenue record. Suddenly, respondent No. 2 Ramdhan filed a revenue suit against Nathu, Dhonkal, Narain and State of Rajasthan, purporting it to be a suit for division of holding, under Sec. 53 read with Ss. 88 and 188 of the Rajasthan Tenancy Act, 1955. He pleaded that he has 1/3rd share in total land of Khata No. 81 (new No. 86), which comprises of 28 fields having total area of 32 bigha 18 biswa in village Gaderi, Tehsil Nasirabad, District Ajmer. Three brothers had divided the land inter -se and they were cultivating the land upon their respective shares and have been paying land revenue according to mutual compromise. Plaintiff Ramdhan wanted that the land should be formally partitioned. He pleaded that he was in possession of 19 bigha 15 biswa of land, the part of which was sold to petitioner. In para 5 of the plaint, plaintiff Ramdhan pleaded that he sold part of the land to petitioner and Narain for consideration of Rs. 6000/ - with the understanding that if he wanted to get the land back, he could do so after repayment of Rs. 6000/ -. On that basis, separate agreement dated 31.01.1983 was executed, but petitioner herein did not comply with condition of that agreement. Narain, another buyer, returned the land to Ramdhan on receiving the amount.
(3.) Petitioner, in written statement, disputed claim of Ramdhan and pleaded that the land was purchased through registered sale -deed dated 31.01.1983 and it was not liable to be returned to Ramdhan. The Assistant Collector passed the decree for partition of the land by holding that land sold by registered sale -deed dated 31.01.1983 was a part of joint tenancy and did not vest in petitioner and Narain, and further held that Ramdhan had right to get 1/3rd share in the total land of 32 bigha 18 biswa and directed for proceeding towards passing of final decree. Aggrieved thereby, petitioner filed first appeal under Sec. 223 of the Rajasthan Tenancy Act, 1955, in the court of Revenue Appellate Authority by asserting that plaintiff Ramdhan, as per stipulation in the sale -deed, did not exercise option to repurchase the land on the basis of agreement dated 31.01.1983 within prescribed period, as such, he lost his right to repurchase the land now. The sale -deed dated 31.01.1983 was in fact the sale -deed and not a mortgage -deed. The Revenue Appellate Authority, however, dismissed the appeal and upheld the judgment of the Assistant Collector. Being aggrieved, petitioner filed Second Appeal before the Board of Revenue, which was also dismissed. Hence this writ petition.;