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Kamal Kishore Baheti & Another v/s State of Rajasthan & Others

    Civil Writ Petition No. 6700 of 2011

    Decided On, 28 July 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE DINESH MAHESHWARI

    For the Petitioners: N.S. Acharaya, Advocate. For the Respondents: R3, D.D. Chitlangi, Advocate.



Judgment Text

1. By way of this writ petition, the plaintiffs-petitioners seek to question the order dated 19.07.2011 as passed by the Board of Revenue for Rajasthan, Ajmer ('the Board') in Revision Petition No.TA/1698/2011/Jodhpur whereby the Board has dismissed the revision petition and in consequence, has affirmed the order dated 17.03.2011 as passed by the Revenue Appellate Authority, Jodhpur ('the RAA') in Appeal No.8/2011. The RAA, by the said order dated 17.03.2011 had dismissed the appeal filed by the petitioners and in consequence, affirmed the order dated 17.02.2011 as passed by the Sub-Divisional Officer, Jodhpur ('the SDO') in Misc. Application No.8/2011.

2. By the said order dated 17.02.2011, the learned SDO, while dealing with the revenue suit for partition and injunction as filed by the present petitioners against the respondent No.3, considered the prayer for temporary injunction per Section 212 of the Rajasthan 2 Tenancy Act, 1955 ('the Act of 1955') read with Order XXXIX Rule 1 and 2 CPC and declined the prayer essentially with the observations that the disputed Aaraji had been recorded in the revenue records separately in relation to the parties with separate accounts; i.e., the land in relation to the petitioners was recorded as Khasra No.1036/740, whereas that in relation to the respondent No.3 was recorded as Khasra No.1840/1036. The learned SDO o

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bserved, -

'LANGUAGE'

3. Aggrieved by the order aforesaid the plaintiffs-petitioners preferred an appeal that was considered and decided by the RAA by the order dated 17.03.2011. The learned RAA again dealt with the plea of the petitioners that they were standing in the capacity of the co-tenants and found them not entitled to any injunction with the following observations:-

'LANGUAGE'

4. The petitioners took the matter yet further in revision petition before the Board. The Board, however, again found that the plaintiffs-petitioners and the defendant-respondent had purchased separate pieces of land that were recorded in the revenue record separately. The Board, of course, observed that the question as to whether partition had taken place or not would be a matter of consideration in the suit but, as at present, when there were separate Khasra numbers assigned to the separate land holdings of the parties, neither any prima facie case was made out in favour of the petitioners nor the aspects of balance of convenience and irreparable injury were in their favour. The Board, thus, proceeded to dismiss the revision petition with the following observations:-

'LANGUAGE'

5. Seeking to assail the orders aforesaid, it has strenuously been contended on behalf of the petitioners that the fundamental fact remains that the respondent No.3 and so also the predecessors of the petitioners purchased the land as comprised in Khara No.1036/740 that was originally recorded in the name of Chaina Ram. It is clarified that the predecessors of the petitioners purchased the land from Chaina Ram and, thereafter, they executed a gift deed in favour of the petitioners. It is submitted that the land has been comprised in a joint Khata and neither any dimension has been spelt out in any of the sale deeds nor any division has taken place at the site. Thus, according to the learned counsel for the petitioners, the petitioners as well the respondent became co-sharers of the land of Khara No.1036/740. It is submitted that once the parties are standing in the capacity of co-sharers, the respondent No.3, being one of the co-sharers, is not entitled to alter the character of the property in question or to carry out any construction thereat without the consent of the petitioners and without adhering to the requirements of law including those of seeking specific orders for land use conversion which, according to the learned counsel for the petitioners, have never been obtained by the respondent. The learned counsel for the petitioners has particularly referred to the decisions of the Hon'ble Supreme Court in the case of Gangubai Bablya Chaudhary & Ors. v. Sitaram Bhalchandra Sukhtankar & Ors., (1983) 4 SCC 31 and Dorab Cawasji Warden v. Coomi 5 Sorab Warden, AIR 1990 SC 867. The learned counsel for the petitioners has also referred to the decisions of this Court in Ram Singh & Ors. v. Amra & Ors., 1996 AIHC 3062 and Vinay Kumar v. Devi Lal & Ors: 2006(2) RRT 1369; and the decision of the Honble Allahabad High Court in Awadh Narain v. IVth Addl. District Judge, Jaunpur & Ors., 2002(1) Civil Court Cases 347 (Allahabad). It is submitted that the revenue authorities have proceeded on entirely irrelevant considerations and on the misplaced notion as if the petitioners and the respondent No.3 are having separate pieces of land whereas the fact remains that they are the co-sharers in the same land comprised in Khasra No.1036/740. The learned counsel for the petitioners submitted that specific method has been provided for division of holdings per Section 53 of the Act of 1955 and no such proceedings having taken place, this property remains a joint one; and the Board too has observed that the question of division is yet to be gone into. According to the learned counsel, when the land in question remains joint and the issue of division is yet to be adjudicated, on the basic principles as enunciated by the Hon'ble Supreme Court in the decisions above referred, the respondent No.3 ought to be restrained from carrying out any construction during the pendency of the suit for preservation of the property.

6. Having given a thoughtful consideration to the submissions made by the learned counsel for the petitioners, this Court is unable to find any reason to consider interference in the writ jurisdiction in this matter.

7. On the prayer for interim injunction during the pendency of the suit, the three revenue authorities have concurrently found no case 6 for grant of any such injunction essentially with the findings that the holdings of the petitioners and those of the respondent No.3 are recorded separately in the revenue records and prima facie, the petitioners have failed to show if the respondent No.3 was in any manner interfering with the land belonging to them. The submissions that the division is yet to take place and the Board itself has observed in its order that the question of partition was yet to be gone into, when read in the context of other observations and record, clear it is that the Board has only commented on the aspects of the question involved in the suit but at the same time, the Board has also pointed out that no prima facie case exists in favour of the petitioners.

8. Upon examination of the Jamabandi (Annex.1), this Court finds justified the observations as made by the revenue authorities that the holdings of the petitioners and those of the respondent No.3 are recorded separately in the revenue records. In the said Jamabandi, the entries in relation to the land in question are to the following effect: -

'LANGUAGE'

9. It is but apparent that out of the land of Khasra No.1036/740, 3 bighas and 19 biswas of land as comprised in Khasra No.1842/1036 7 has been recorded in the name of respondent No.3 with lagan of 0.63 whereas 4 bighas and 1 biswa of land as comprised in Khasra No.1036/740 has been recorded in the name of the alleged predecessors of the petitioners with lagan 0.65. The copies of the sale deeds, placed on record as Annexures-2 and 3, also make it clear that such sale deeds were executed and registered on the same date, i.e., 13.10.2005 but then, in the sale deed Annexure-2 the vendor Chaina Ram specifically sold 4 bighas and 1 biswas of land of Khasra No.1036/740 to the predecessors of the petitioners, whereas he sold another 3 bighas and 19 bighas of land of this very Khasra No.1036/740 to the respondent No.3. The learned counsel for the petitioners submitted that such recitals in the sale deeds are only in regard to the area of the land but cannot be taken to be specifying a particular piece of land with boundaries so as to come to the conclusion that separate parcels of land were sold by the two different sale deeds; and contended that the purchasers became co-sharers by virtue of the said sale deeds. The submissions have their short-comings because in the sale deeds executed on the same date, the vendor specifically stated selling 4 bighas and 1 biswas of land to the predecessors of the petitioners and 3 bighas and 19 biswas of the land to the respondent No.3. It would be a matter, of course, for the consideration in the suit as to whether in fact a division has taken place or not and the Board has rightly observed in that regard but then, in the existing position of the record where separate pieces of land have been sold and then, have been recognized in the revenue record as such with different identification numbers and with different lagan, the learned revenue authorities cannot be said to have committed any jurisdictional error in not 8 finding prima facie case in favour of the petitioners.

10. There is no and there cannot be any quarrel on the principles enunciated by the Honble Supreme Court in the case of Gangubai (supra) that grant or refusal is considered on the touch-stone of the prejudice likely to be caused but then, in the present case, in the first place, no prima facie case is found in favour of the petitioners. Then, during the course of submissions, the questions were precisely posed to the learned counsel for the petitioners if the respondent No. 3 was in any manner raising construction beyond 3 bighas and 19 biswas of land or intruding into 4 bighas 1 biswa of land said to be belonging to the petitioner to which, the learned counsel submitted that raising any construction on the land in question would be interfering with the rights of the co-sharers and with the joint property. The position again gets deflected to the very fundamental aspect that jointness as alleged by the petitioners is in serious doubt and the existing record is to the contrary. In the given set of facts, no case for grant of temporary injunction is made out on the basis of the principles in Gaugubai (supra).

11. The decision in Dorab Cawasji Wardens case (supra) has no application to the facts of the present case. Therein, the issues related to the house property originally purchased by the father and mother of the plaintiff where construction had been raised subsequent to the purchase. After the death of the mother of the plaintiff, he and his father came to own the property as surviving joint tenants. Under an agreement, they agreed to hold the property as tenants in common, each having equal undivided share therein so that each can dispose of his undivided share. Subsequently, the plaintiffs father transferred his undivided share in favour of another 9 son. Thus, the plaintiff and his brother came to hold equal undivided = share each as tenants in common. The plaintiffs brother died and his widow and two minor sons sold their undivided = share; and the plaintiff filed the suit against the vendors under Section 44 of the Transfer Property Act on the ground that the suit property was a dwelling house belonging to the undivided family. In the given fact situation and the position of record, the Honble Supreme Court observed that in the absence of document evidencing partition of the suit house by metes and bounds and on the documentary evidence showing that the property was held by the plaintiff and his brother in equal undivided shares, there was a prima facie case about dwelling house belong to a undivided family; and the transfer was prima facie within the mischief of second paragraph of Section 44. The other factual aspects of the matter were also considered by the Hon'ble Supreme Court and in the totality of the circumstances, the Hon'ble Court found the case fit for granting requisite injunction. In the first place the present one is a matter relating to the revenue paying land and not a dwelling house. In any case, as observed above, the existing record contradicts the suggestions about jointness.

12. The decision in Ram Singhs (supra) again related to the dispute in regard to the land jointly held by the parties. As noticed herein, in the given status of the record, it is difficult to accept as at present that the petitioners stand in the capacity of co-sharers. This decision is also of no help to the petitioners.

13. In Vinay Kumars case (supra), there had been a dispute about the boundaries of the plots claimed by the two parties; and that was found to be a bona fide dispute calling for a status-quo order. The situation herein, as noticed above, remains entirely different as 10 there had been different sale deeds made in relation to the different parcels of land; and in the record of rights, separate Khasra numbers with separate lagans have been mentioned.

14. In regard to the decision in Awadh Narains case (supra), again the position remains the same. The dispute therein had been regarding a joint property and prima facie it was found that both the parties were co-sharers with partition having not taken place. As observed in this case, the very fundamental facts are different and prima facie the claim of the petitioners as alleged co-sharers has not been accepted.

15. In view of what has been discussed above, this Court is unable to find any jurisdictional error in the orders impugned so as to consider interference in the writ jurisdiction and, therefore, this writ petition is required to be dismissed.

16. However, in the interest of justice, it is made clear that the observations, whether made by this Court in this order or by the learned subordinate revenue authorities in the orders impugned, shall remain confined for the purpose of considering grant or refusal of temporary injunction only and shall not otherwise have bearing on the merits of the case of either of the parties in the suit.

17. With the observations forgoing, the petition stands dismissed.

Petition dismissed.
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