M.C. JAIN, J. - (1.) THIS writ petition is directed against the order of the Board of Revenue dated October 27,1978 (Anx-4) whereby the Board of Revenue allowed the revision and set aside the order of the Revenue Appellate Authority dated October 20, 1975 (Anx. 2) and restored the order of the learned S.D.O. dated May 31, 1975 (Anx.l). The Sub Divisional Officer, Bhinmal decided the petitioners ceilling case by his order Anx.l He recorded that the portion is recognisable and acceptable but as the petitioners being the cognate are entitled to equal shares. On that basis the Sub-Divisional Officer determined the ceiling area of the petitioners. Each of the petitioners was entitled to 37.12 standard acres considering the number of members of the family of Jaisingh as 8, he found that no part of share of his land is resumable whereas the number of the family members of the petitioner Ambsingh was less than five so he found that 7.12 standard acres land is resumable. Consequently he ordered that 51 Bighas 1 Biswa land as specified in his order shall vest in the State Government in accordance with the option. The Revenue Appellate Authority on separate appeals preferred by the petitioners in view of the partition effected between the petitioners found that no land of petitioner Jaisingh is liable to be resumed as the land in his possession, is not in excess of the ceiling area whereas 23 Bighas 1 Biswas land of petitioner Ambsingh is liable to resumed of the Khasras Nos-108 and 36. The State of Rajasthan preferred revision against the order of the Revenue Appellate Authority and the revision was allowed by the Board.
(2.) THE petitioners' case is that before few months of the death of the petitioner's father-in-law Shri Motisingh their father had partitioned the land between the petitioners in 1958 and in that partition petitioner No. 1 Ambsingh received 205 Bighas 11 Biswas whereas petitioner No. 2 Jaisingh 261 Bighas. At the time of the partition both the petitioners were married. THE petitioner's father stated that the land which fell to the share of petitioner No. 1 was valuable, fertile and plain whereas the land of petitioner No. 2 was sloppy and the location of his land was not better than petitioner No. 1. It was also stated that according to the classification 18 Bighas 11 Biswas land of petitioner No.l is B.A. (chahi) acres Where's 11 Bighas of land of the petitioner is B.A. (chahi). THE petitioners' further case is that the partition deed was executed by the petitioners in a Bahi on January 21, 1968 and a copy of the same was transferred for mutation on February 8, 1969 and mutation was sanctioned on October 21,1971. Subsequently the petitioner got the deed of partition registered on August 25, 1970 wherein it was recorded that partition of the agricultural land had already been effected between the petitioners. THE petitioners challenged the order of the Board of Revenue on the ground that when once the partition has taken place between the petitioners for the purpose of determining ceiling area of the petitioners the partition ought to have been recognised and the ceiling area of the each of the petitioner could have been determined in the light of the actual partition which had taken place between the petitioners. Oral partition had taken place as far back as 1958. Subsequently it was executed in the Bahi on January 21, 1968 and in pursuance of which mutation was effected and thereafter partition-deed was also registered. THE Board of Revenue erred in not determining the ceiling area of the petitioners individually on the basis of the actual partition and had wrongly found that the S.D.O. was right in proceeding to determine the ceiling area applicable to the petitioners, on the basis that both the petitioners and brothers and will receive equal shares in the total land of 466 Bighas and 11 Biswas. The question that arises for consideration in the present writ petition is as to whether the partition which is said to have been taken place on January 21,1968 can be. made the basis for determining the ceiling area of the petitioner. In the Jama Bandi of s.y. 2001 the total land in question was entered in the name of both the petitioners. This means that on the appointed day i.e. on April 1,1966 the total land stood in the name of the petitioners jointly. The extent of the ceiling, area of each of the petitioners is to be determined with reference to the appointed date i.e. April 1,1966. It has not been found by the Ceiling Authorities that oral partition had already taken place in the year 1958 and the petitioners were in separate possession of the land under the oral partition what has been found is that the land continued to remain recorded jointly in the name of both the petitioners upto Samvat year 2025 and it was only on January 21,1968 that a partition deed was executed in the Bahi. Mr. L.R. Mehta submitted that partition is not a transfer of property. S.30D of the Rajasthan Tenancy Act, 1955 (No. III of 1955) (in short the Act) provides for certain transfers not to be recognised for ceiling area under S.30C and S.30-DD provides transfers to be recognised if they are effected upto December 31,1969; when partition is not a transfer the co-parceners or co-sharers have a right in the whole of the property and the co-transferers and co-sharers andco-tenants have a right to joint enjoyment of their joint property. That means that by partition severance takes place and each individual co-sharers or co-tenants had severance and partition is entitled to separate enjoyment of his share of the property which may fall to his share. It should be taken that he was entitled to that particular share right from the date he became entitled to that share, and so even when partition has taken place after the appointed date that partition should be recognised. For the purpose of determination of the ceiling area under s. 30-C. It is true that partition of joint Hindu family property cannot be regarded as transfer for the simple reason that every co-parcener has an antecedent right and title to the entire coparcenary properly though the extent of his right is not determined until partition takes place. On account of partition the joint title is transferred into separate title of co-parcener in respect of the separate properties which may fall to their individual share. The process of partition involves only the joint enjoyment of the property by all the co-parceners into separate enjoyment by such co-parceners of the respective property allotted to their share. Partition under the Hindu Law puts an end to the unity and continuity of the ownership between the co-parceners. Thus it is correct to say that no transfer of property takes place when a partition of the property is effected. By partition the individual co-parcener simply gets his share and he becomes exclusively entitled to his share, the title and possession of his share from the date of partition vests in him. The question before me is if partition takes place after the appointed date whether the individual share which has fallen to the lot of individual co-tenant is to be considered the separate holding of each co-sharer or co-tenant or on the basis of the shares of each co-tenant without taking into account the specified property as has come in share after partition has to be taken into consideration. Admittedly in the present case on the appointed date the holding of the petitioner was a joint and undivided one; partition deed came into existence only in 1968 without going into the question as to whether that partition deed is to be recognised or not. Assuming for the sake of arguments that the partition had taken place in the year 1968, still on the basis of that partition whether individual ceiling area of the petitioner can be determined. In this connection the definition of the word holding given in s. 5 (17) is relevant. The word holding' has been defined as under:- "Holding" shall mean a parcel of land, held under one lease, engagement or grant or, in the absence of such lease, engagement or grant, under one tenure, and shall include, in the case of an ijardar or thekedar, the ijara or theka area; provided that for the purpose of chapter III B, all parcels of land held anywhere throughout the State by a person under one or more than one lease engagement, grant or tenure, and where cultivated personally or let or sub-let by him, shall be deemed to be his holding and, where any such land is held by more than one person as co-tenants or co-sharers, the share of each of them shall be deemed to be his separate holding whether a division thereof has or has not actually taken place." A bare perusal of the proviso makes it abundantly clear that for purposes of Chapter III B where any land is held by more than one person as co-tenants or co-sharers, the share of each of them shall be deemed to be his separate holding whether its division has or has not actually taken place. If the co-tenants have got half and half share, then it would be deemed that they have got separate holding half and half irrespective of the fact whether actual division has taken place or not. The proviso contains a deeming provision. In law it would be deemed that the co-tenants are having their separate holdings according to their share. Actual division of holding is not the basis for arriving at the finding of their separate holding. When the matter is examined in the light of the proviso contained in the definition of the expression 'holding', the Sub-Divisional Officer as well as the Board of Revenue were right in determining the ceiling area of the petitioners on the basis of their shares held by the petitioners, as their individual share shall be deemed to be their separate holding. The S.D.O. and the Board of Revenue should have founded their orders on the provision contained in the proviso to the definition of holding embodied in s. 5(17) of the Rajasthan Tenancy Act. Although it has been said that the petitioners had equal shares on April 1, 1966 and their ceiling area should be determined on the basis of their equal shares. Reference to the definition of the word 'holding' would have made the position clear and the reasoning for arriving at the conclusion to which they have arrived would be the reasoning given under the law i.e. in the definition of the word 'holding' in s. 5(17) and no other reasoning would have been left for examining the question. In my opinion, the conclusion to which the Board of Revenue has arrived is correct in view of the reasoning considered above. Thus the order of Board of Revenue calls for no interference by the Court.
(3.) IN this result, this writ petition has no force so it is hereby dismissed. There will be no order as to costs.;