Rajasthan High Court - Jaipur
Maqsood Khan vs State And Ors on 23 August, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2024:RJ-JP:30420]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5121/1997
Maqsood Khan S/o Shri Abdul Khan R/o Sirsiasar Kalan, Tehsil
and District Jhunjhunu (Since deceased) through his legal heirs:-
1/1. Nasib Jhan W/o Maqsood Khan
1/2. Jakir Husain (Since deceased) through his legal heirs:
1/2/1. Shausin Bano W/o Jakir Husain
1/2/2. Wasim S/o Jakir Husain
1/2/3. Iqrar S/o Jakir Husain
1/2/4. Sharookh S/o Jakir Husain (minor) through mother
Shausin Bano
1/3. Jagser Ali S/o Maqsood Khan
1/4. Amzad Khan S/o Maqsood Khan
1/5. Mohammad Rafiq S/o Maqsood Khan
1/6. Balkes Bano D/o Maqsood Khan
All R/o siriasar kalan, Tehsil and District Jhunjhunu
----Petitioners-Legal Representatives of deceased-plaintiff
Versus
1. Board of Revenue for Rajasthan, Ajmer
2. Revenue Appellate Authority, Jaipur
3. Assistant Collector, Headquarter, Jhunjhunu
----Respondents-Persona Designata
4. Mustaq Khan S/o Shri Feroz Khan R/o Siriasar Kalan Tehsil
and District Jhunjhunu
5. Mst. Shakeel Bano d/o Shri Feroz Khan wife of Turab Ali Khan
R/o Pipusar, Tehsil and District Jhunjhunu
6. Mst. Kadar Bano D/o Shri Feroz Khan W/o Niyaz Mohammed
r/o Bas Hamir Khan, Tehsil and District Jhunjhunu
7. Mst. Nooriahan d/o Shri Feroz Khan w/o Manbar Ali Khan r/o
Gyangvasar, Tehsil and District Jhunjhunu
8. Mst. Utpal d/o Shri Feroz Khan w/o Shaukat Ali r/o Gidaniva,
Tehsil Chirawa District Jhunjhunu
9. Alim Bux s./o Shri Mohammed Khan r/o Siriasar Kalan, Tehsil
and District Jhunjhunu
10.1 Illias Khan s/o Late Shri Gulam Sarvar
10.2 Majid Khan s/o Late Shri Gulam Sarvar
10.3 Mst. Zanat Bano w/o Late shri Gulam Sarvar
All are r/o Siriasar Kalan, Tehsil and District Jhunjhunu
10.4 Smt. Mobin Bano d/o Late Gulam Sarvar and wife of Shri
Maqsood Khan r/o Village Jhanihot Tehsil Chirawa District
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[2024:RJ-JP:30420] (2 of 13) [CW-5121/1997]
Jhunjhunu
10.5 Mst. Kalam Bano d/o Late Shri Gulam Sarvar, r/o
Bamanwas, Tehsil and District Jhunjhunu
------Respondents/Defendants
For Petitioner(s) : Mr. Raghvendra Singh
For Respondent(s) : Mr. Rohan Agarwal for
Mr. M.M. Ranjan, Sr. Adv.
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
Judgment reserved on : July 10th, 2024
Judgment pronounced on : August 23rd , 2024
BY THE COURT:
1. Instant writ petition has been preferred by petitioner- plaintiff, challenging the judgment dated 15.01.1996 passed by Board of Revenue in second appeal, whereby and whereunder plaintiff's revenue suit for declaration of his joint khatedari rights and claiming partition of half share in the land of Khasra No.325, has been dismissed and decree passed by the Revenue Appellate Authority dated 23.12.1989 has been quashed to this extent. It is noteworthy that by the same judgment dated 15.01.1996, the Board of Revenue has affirmed the decree dated 23.12.1989 passed by the Revenue Appellate Authority in respect of passing a preliminary decree for partition of lands of Khasra Nos.24 and 55 in equal half- half share between plaintiff and defendants No.1 to 6 and to the extent of passing this preliminary decree for partition in respect of Khasra Nos.24 and 55, the judgment of Board of Revenue is not under challenge in this writ petition. (Downloaded on 28/08/2024 at 08:58:05 PM) [2024:RJ-JP:30420] (3 of 13) [CW-5121/1997]
2. Petitioner-Maqsood Khan (now deceased) was the sole plaintiff who instituted a revenue suit in the year 1980 before the Court of Assistant Collector, Jhunjhunu for declaration of khatedari rights and partition under Sections 53, 88, 89, 91 and 92 of the Rajasthan Tenancy Act. In this revenue suit, plaintiff claimed his half share in land of Khasra No.325/1 (measuring 13 Bigha 9 Biswa), Khasra No.24 (measuring 26 Bigha 18 Biswa) and Khasra No.55 (measuring 11 Bigha 6 Biswa) situated at Village Sirsiasar Kalan, Tehsil and District Jhunjhunu. Remaining half share in these lands was asserted to be of defendants No.1 to 6, who are represented in the writ petition, through respondents No.4 to 8 herein.
It appears that land of Khasra No.325 total measuring 23 Bigha 16 Biswa was divided in two parts, northern portion was registered as Khasra No.325/1 (measuring 13 Bigha 9 Biswa) and southern portion was registered as Khasra No.325/2 (measuring 10 Bigha 7 Biswa). Since, the southern portion of land of Khasra No.325/2 (measuring 10 Bigha 7 Biswa) was recorded in name of Alim Bux and Gulam Sarvar, they were also made party-defendants No.7 and 8 in the present revenue suit. Defendants No.7 and 8 are represented herein by respondents No.9 and 10.1 to 10.5.
It appears that in the revenue suit, plaintiff confined his relief for declaration of khatedari rights in Khasra No.325/1 measuring 13 Bigha and 9 Biswa only, and asked for his half (Downloaded on 28/08/2024 at 08:58:05 PM) [2024:RJ-JP:30420] (4 of 13) [CW-5121/1997] share therein and no relief was prayed by plaintiff in respect of Khasra No.325/2, measuring 10 Bigha 7 Biswa belong to defendants No.7 and 8.
3. Plaintiff's suit was dismissed on merits by the Court of Assistant Collector, Jhunjhunu vide judgment dated 30.12.1985 whereagainst plaintiff preferred appeal before the Revenue Appellate Authority, Sikar. The appeal was registered as Jhunjhunu/532/1986 and in the appeal, the judgment of dismissal of suit dated 30.12.1985 was quashed and plaintiff's suit was decreed in the manner that plaintiff and defendants No.1 to 6 were declared co-tenants of Khasra No.325/1 (measuring 13 Bigha 9 Biswa) and further the plaintiff and the defendants No.1 to 6 both were held entitled for half-half share in the lands of Khasra Nos.325/1, 24 and
55. The consequential directions to appoint the Tehsildar, Jhunjhunu to prepare proposal for final decree of partition and to carry out necessary corrections in the revenue record were also passed.
4. One of defendant out of defendants No.1 to 6, namely, Mustaq Khan (defendant No.1) preferred second appeal before the Board of Revenue under Section 224 of the Rajasthan Tenancy Act against the judgment and decree dated 23.12.1989 passed by the Revenue Appellate Authority. In the second appeal, Board of Revenue vide its judgment dated 15.01.1996, sustained the decree for partition of land (Downloaded on 28/08/2024 at 08:58:05 PM) [2024:RJ-JP:30420] (5 of 13) [CW-5121/1997] of Khasra Nos.24 and 55 in half-half share between the plaintiff and defendant Nos. 1 to 6, but overturn the decree of declaration and partition in respect of Khasra No.325/1. Therefore, plaintiff has preferred instant writ petition under Article 227 of the Constitution of India, challenging the judgment of Board of Revenue dated 15.01.1996, to the extent of dismissing his revenue suit for claiming joint khatedari rights and partition for half share in the land of Khasra No.325/1 only.
5. It is to be noted that, during course of the writ petition, sole petitioner-plaintiff has passed away, hence his Legal Representatives have come on record. It appears that the plaintiff's revenue suit was resisted by defendant No.1- Mustaq Khan (respondent No.4 herein) only and other defendants No.2 to 6 sisters of defendant No.1 remained ex parte. Defendant No.4-Halima D/o Feroz Khan had possibly passed away, hence, she has not been made party in the instant writ petition. Defendant No.2-Shakeel Bano and defendant No.3-Kadar Bano (respondents No.5 and 6 herein) have also passed away during course of writ petition. The interest of defendants No.1 to 6 is common and similar, which is being defended by defendant-respondent No.4-Mustaq Khan herein. Out of defendant Nos.7 and 8 (respondents No.9 and 10 herein), defendant No.8 (respondent No.10), (Downloaded on 28/08/2024 at 08:58:05 PM) [2024:RJ-JP:30420] (6 of 13) [CW-5121/1997] namely, Gulam Sarvar has also died during this petition, hence, his Legal Representatives have come on record.
6. Heard counsel appearing on behalf of petitioners and on behalf of respondent No.4 as well as counsel for State and perused the record.
7. In nutshell, it is necessary and relevant to note that plaintiff claimed his half share in agricultural lands of Khasra No.325/1, 24 and 55. In respect of land of Khasra No.325/1, plaintiff has also claimed declaration of khatedari rights along with defendants No.1 to 6. In respect of Khasra Nos.24 and 55, the joint khatedari of plaintiff and defendants No.1 to 6 is not in question rather it is an admitted fact. Thus, factual background, to claim partition by plaintiff, in Khasra No.325/1 and in lands of Khasra Nos.24 and 55 is entirely different, therefore, it would be appropriate to notice the backdrop of facts, in brief, more particularly in respect of claim of plaintiff against land of Khasra No.325/1, whereagainst his revenue suit for declaration and partition has been dismissed by the Board of Revenue.
8.1. As far as land of Khasra No.325/1 is concerned, from the record it appears that this is part of land of Khasra No.325 which was a mafi land, total measuring 23 Bigha 16 Biswa. The plaintiff claimed his khatedari and share in this land, alleging inter alia that the land of Khasra No.325 measuring 23 Bigha 16 Biswa was recorded in the khatedari of Abdulle (Downloaded on 28/08/2024 at 08:58:05 PM) [2024:RJ-JP:30420] (7 of 13) [CW-5121/1997] Khan and in support, plaintiff produced one document of Misal Hakiyat of Samvat 1999 as Ex.-2 in his evidence. The case of plaintiff is that Abdulle Khan died in the year around 1946 and was survived by two sons i.e. Maqsood Khan (plaintiff) and Feroz Khan (father of defendants No.1 to 6). 8.2 According to plaintiff, after death of Abdulle Khan, land was mutated in joint name of plaintiff-Maqsood Khan and his brother Feroz Khan but, later on at the time of settlement, the land of mafi was resumed by the State and land of Khasra No.325 came to be recorded in khatedari of the persons cultivating the land.
8.3 Petitioner states that he was minor at that point of time and was living with his sister, who nourished and brought him up. During this period, the northern side portion of 13 Bigha 9 Biswa came to be recorded in the revenue record in the name of Feroz Khan (father of defendants No.1 to 6) and it was assigned Khasra No.325/1. Southern side portion measuring 10 Bigha 7 Biswa came to be recorded in the name of Alim Bux and Gulam Sarvar (defendants No.7 and 8) and was assigned Khasra No.325/2.
8.4 Name of petitioner was not included as khatedar in the land of Khasra No.325. Plaintiff asserted that after attaining age of majority of 18 years, he joined Army where he served 15 years, later on, after retirement from Army, he did job of (Downloaded on 28/08/2024 at 08:58:05 PM) [2024:RJ-JP:30420] (8 of 13) [CW-5121/1997] Driver in the RSRTC and then returned to village in the year 1977.
8.5 During this period, according to plaintiff, for and on his behalf, land of Khasra No.325/1 was cultivated by his sister's husband, namely, Nasir Ali Khan and it is asserted that he also paid the lagaan along with defendants No.1 to 6. Plaintiff's case is that after death of Feroz Khan, the land Khasra No.325/1 has been mutated in favour of his sole son and five daughters, who are defendants No.1 to 6. Plaintiff's claim is that in land of Khasra No.325/1, he is also entitled to be declared khatedar of half share and remaining half share may continue to belong to defendants No.1 to 6. In such backdrop of factual matrix, plaintiff made a prayer for declaration of joint khatedari in the land of Khasra No.325/1 with defendants No.1 to 6 in half-half sharing and plaintiff claimed partition of his half share in such land. 8.6 It appears that, so far as remaining portion of Khasra No.325 i.e. land of Khasra No.325/2 measuring 10 Bigha 7 Biswa which was recorded in the name of Alim Bux and Gulam Sarvar (defendants No.7 and 8), plaintiff has not claimed any share therein, although in memo of writ petition, plaintiff stated his right in whole land of Khasra No.325, but same seems to be beyond the prayer made in the revenue suit.
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9. It is noteworthy that the claim of plaintiff for declaration of khatedari rights and praying for half share in the land of Khasra No.325, is fundamentally based on the document of Misal Hakiyat of Samvat 1999. Such claim of plaintiff has been analysed by the Assistant Collector and it was observed that in the Misal Hakiyat of Samvat 1999, lands were recorded as mafi land in the name of Abdulle Khan. It has been observed that Abdulle Khan has passed away in the year around 1946 and thereafter, the mafi land came to be resumed. The cultivators over the lands of Khasra No.325 were recorded as Khatedar and Khatedari rights were acquired by the then cultivators by virtue of Section 15 of Rajasthan Tenancy Act, 1955, after settlement. It has been observed that indisputedly, at that point of time, plaintiff- Maqsood Khan was a minor child of age of one and half year old, hence, he was not actual cultivator of the land of Khasra No.325. His elder brother Feroz Khan was one of the cultivator, therefore, a portion of 13 Bigha 9 Biswa land was recorded in his name and this portion was assigned as Khasra No.325/1. Remaining portion of 10 Bigha 7 Biswa was being cultivated by Alim Bux and Gulam Sarvar, therefore, same was recorded in their joint khatedari and was assigned as Khasra No.325/2.
10. Thus, the observation of the revenue Court is that Khatedari rights on the land of Khasra no.325, were conferred (Downloaded on 28/08/2024 at 08:58:05 PM) [2024:RJ-JP:30420] (10 of 13) [CW-5121/1997] in favour of actual cultivator, by operation of law and no Khatedari rights were conferred in favour of plaintiff, since he was not actual cultivator of this land in the year 1955 (Samvat-2012). The case of plaintiff that he made cultivation through husband of his sister, namely, Nasir Ali Khan (PW-2) has been disbelieved, since Nasir Ali Khan (PW-2) himself declined to cultivate the land of Khasra No.325.
11. It has further been observed that in the mafi land, no Khatedari rights in favour of Abdulle Khan (father of plaintiff) were ever confirmed and it is only after resumption of mafi land, Khatedari rights were confirmed in favour of Feroz Khan. Prior to that, plaintiff's father Abdulle Khan had passed away. Thus, no Khatedari rights in favour of plaintiff, in jointness with Feroz Khan were held to be conferred upon him.
It is to be noted that except document of Misal Hakiyat (Ex.-2), in all other revenue record, land of Khasra No.325/1 is recorded in khatedari of Feroz Khan and after his death, in favour of defendants No.1 to 6. For the aforesaid reasons, joint khatedari of plaintiff in Khasra No.325/1, merely on the basis of Misal Hakiyat of Samvat 1999, was not declared and his claim for partition was too dismissed.
12. The Board of Revenue has affirmed such findings of the Assistant Collector and held that on the basis of document of Misal Hakiyat, no Khatedari rights in land of Khasra No.325 (Downloaded on 28/08/2024 at 08:58:05 PM) [2024:RJ-JP:30420] (11 of 13) [CW-5121/1997] were confirmed in favour of Abdulle Khan, father of plaintiff. The Board of Revenue observed that the Revenue Appellate Authority, declared joint khatedari of plaintiff with defendants No.1 to 6 in land of Khasra No.325/1 without any basis and Misal Hakiyat (Ex.-2) was erroneously treated as document of khatedari rights. Therefore, the Board of Revenue overturned such portion of the judgment passed by the Revenue Appellate Authority and set aside the declaration of joint Khatedari rights over the land of Khasra No.325/1 in favour of plaintiff along with defendants No.1 to 6. Consequentially, the claim of plaintiff for partition of half share in the land of Khasra No.325/1 has also been rejected.
13. From the record, this is an undisputed fact that plaintiff does not have any actual and cultivatory possession over the land of Khasra No.325/1. The case set out by plaintiff that he made cultivation over this land through his sister's husband, namely, Nasir Ali Khan and lagaan of his share was paid by him, has not been proved for want of evidence. No lagaan was paid on the mafi land. After resumption of mafi land, the parcha lagaan was entered in the name of Feroz Khan for land of Khasra No.325/1 and in joint name of Alim Bux and Gulam Sarvar for land of Khasra No.325/2. The document of parcha lagaan, issued in the year 1955 has not been challenged by the plaintiff. Plaintiff's father Abdulle Khan had passed away, prior to conferment of Khatedari rights over the (Downloaded on 28/08/2024 at 08:58:05 PM) [2024:RJ-JP:30420] (12 of 13) [CW-5121/1997] land of Khasra No.325. There is no evidence to show khatedari of plaintiff's father Abdulle Khan over land of Khasra No.325, as the same was recorded as mafi land in his favour in Misal Hakiyat. In such view of factual matrix, the findings recorded by the Assistant Collector and as confirmed by the Board of Revenue that the Khatedari rights of Khasra No.325, after resumption from mafi land, were conferred only in favour of cultivators of land, namely, Feroz Khan, Alim Bux and Gulam Sarvar by virtue of Section 15 of Rajasthan Tenancy Act, cannot be held illegal or suffer from perversity or jurisdictional error.
14. Thus, this Court does not find any illegality, perversity or jurisdictional error in the impugned judgment dated 15.01.1996 passed by the Board of Revenue rejecting the claim of plaintiff for seeking declaration of joint Khatedari rights in the land of Khasra No.325/1 and dismissing his claim for partition of half share therein. To this extent, the impugned judgment does not warrant any interference by this Court in exercise of its writ jurisdiction under Article 227 of the Constitution of India.
15. As far as claim for partition of half share in land of Khasra Nos.24 and 55, same has been decreed in favour of plaintiff and a preliminary decree has been passed in his favour under the judgment dated 23.12.1989 passed by Revenue Appellate Authority, Sikar which has been affirmed (Downloaded on 28/08/2024 at 08:58:05 PM) [2024:RJ-JP:30420] (13 of 13) [CW-5121/1997] by the Board of Revenue under judgment dated 15.01.1996 and to this extent, the judgment of Board of Revenue is not under challenge in the instant writ petition.
16. Lands of Khasra Nos.24 and 55 are indisputedly in joint khatedari of plaintiff and defendants No.1 to 6. At the time of filing of present revenue suit in year 1980, plaintiff admitted to have his cultivation over 18 Bigha land of Khasra No.24 since more than 25 years. On remaining portion of Khasra No.24 and entire area of Khasra No.55 (11 Bigha 6 Biswa) is in cultivatory possession of defendants No.1 to 6. According to defendants, such possession and cultivation of parties, on respective share of Khasra Nos.24 and 55 is under the oral understanding of partition. So, it is open for parties, to agree for same sharing and to get prepare final decree of partition accordingly or to proceed for final decree of partition by metes and bounds, in furtherance to the preliminary decree for partition, passed by the Revenue Appellate Authority and affirmed by the Board of Revenue.
17. For the aforesaid reasons, the instant writ petition lacks merit and same is hereby dismissed.
18. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J RONAK JAIMAN/2 (Downloaded on 28/08/2024 at 08:58:05 PM) Powered by TCPDF (www.tcpdf.org)