- (1.) By way of this appeal, the original petitioner has challenged the judgment and order of the learned Single Judge whereby the learned Single Judge has not exercised his powers under Article 226 and 227 of the Constitution of India and confirmed the order of the Board which has reversed the order of the Revenue Appellate Authority, Kota and restored back the order of the SDO, Digodh Distt. Kota.
(2.) The facts of the case are that the original petitioner Dhanna Lal (since deceased) was survived by three sons Tikam, Kanhaiya Lal and Laxminarain and as per oral partition, land measuring 17 bigha and 8 biswa falling in Khasra No. 448 came to Tikam and 24 bigha and 6 biswa of land falling in Khasra No. 618 fell to the share of Kanhaiya Lal and Laxminarain. To support his contention, reliance has been placed on sale-deed (Annex.2). The sale deed was executed by Tikam, Kanhaiya Lal and legal heirs of Laxminarain in favour of one Ram Kalyan. The sale deed is qua 24 bigha 6 biswa of land falling in Khasra No.618. In the sale deed, a recital has been made that Khasra No. 448 from 14 bigha and 8 biswa of land is in possession of Tikam and he is continuing to be in possession of the same as cultivator in Khatedari. 2.1 The Court of Assistant Collector, Digod vide his order dated 8.4.2008 (Annex.7) partly decreed the suit to the extent of 1/3 rd share holding that the land falling in Khasra No. 448 bearing 17 bigha and 8 biswa purchased by the deceased from Tikam is also owned by three brother namely Tikam, Kanhaiya Lal and Laxminarain. Thus, sale in favour of the petitioner was restricted to 1/3 share of Tikam. 2.2. Before he could approach to the appellate authority, the two brothers including legal representatives have disposed off the property and he also as purchaser of suit property, has approached and the Revenue Appellate Authority accepted the appeal and set aside the judgement rendered by the Assistant Collector, Digod. 2.3 Aggrieved against the same, Vimla Devi who purchased the land from legal heirs of Kanhaiya Lal and Laxminarain on 2.5.2008 filed appeal before the Board of Revenue. The Board of Revenue reversed the judgment dated 19.6.2008 rendered by the Revenue Appellate Authority and maintained the decision of the Assistant Collector, Digod. The learned Single Judge also confirmed the order of the Board of Revenue, hence this appeal.
(3.) The learned Single Judge has after considering the evidence on reocrd and the order of the Board of Revenue, observed as under:- "The very fact that Tikam had executed the saledeed (Annexure-1) alongwith his other brothers lead to conclusion that brothers had not accepted his exclusive ownership of Tikam over Khasra No. 448. Therefore, by similar analogy the sale of land falling in Khasra no. 618 was reqquired to be executed by three brothers. Otherwise also recital in the sale-deed cannot convey the property. There are no attending circumstances available to corroborate the recital made in the sale-deed in favour of the petitioner to arrive at the conclusion that Tikam was absolute owner of the land falling in Khasra No. 448 bearing 17 bigha and 8 biswa of land. The land in Khasra No. 448 also vested in three brothers by way of natural succession. To deviate from natural succession, unimpeachable evidence is required. No witness has been examined to say that on which date oral partition had taken place to which a reference has been made by way of recital in sale-deed. Even otherwise, this Court while exercising jurisdiction of superintendence under Article 227 of the Constitution of India, will not disturb the finding given by Board of Revenue merely because another view is possible. The view formulated by Assistant Collector, Digod as affirmed by Board of Revenue is one view which is possible in the facts and hence, no interference is warranted in the present petition.";