HARDAI &ORS v. B O R AJMER &ORS

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment (2 of 3) [SAW-1432/2016] 16/02/2017 By way of this appeal the appellants have challenged the judgment and order of the learned Single Judge, whereby the learned Single Judge has dismissed the writ petition confirming the order of the Revenue Board which has confirmed the order of the Appellate Authority. Learned Single Judge while considering the case of the petitioner has observed as under:- It is contended that one Sonpal filed a suit for partition of ancestral land specified in para 1 of the plaint, situated at Bahaj, Tehsil Deeg, District Bharatpur, in the court of Sub Divisional Officer, Deeg, District Bharatpur. During pendency of the suit, Sonpal died and petitioners were taken on record being his legal heirs. The land in question was in joint cultivatory possession of original plaintiff Sonpal and defendant Shanker recorded in their 'khatedari', and both of them had half-half share therein and accordingly entry was made in the revenue record. It is contended that some part of the land was not so fertile and that defendant wanted to have the land of good fertility, though of his share, and therefore the plaintiff filed the suit for partition of the land half-half of fertile and infertile portion in equal proportion. The defendant filed written statement admitting that though plaintiff had one- half share in the land in question but he had already sold one-andthree-fourth bigha of land of his share in Samvat 2034 and even now he has fifteen biswa excess land of his share, and accordingly prayer was made that the land in question be divided into half-half equal in fertile and infertile land, after reducing one-and- three-fourth bigha of land from the share of the plaintiff, which he had already sold. Learned Sub Divisional Officer, vide order dated 04.02.2014, though allowed the suit but wrongly ordered to give 13 air of land more to the defendant on the ground (3 of 3) [SAW-1432/2016] that plaintiff had already sold one-and- three-fourth bigha of land of khasra no.3258, but the contention of learned counsel for plaintiff is that the sold out land was self acquired land of his father and therefore the same could not be held to be part of ancestral property. Having heard learned counsel for petitioners and perused the material on record, this court does not find any error or illegality in the impugned orders. The respondents, in support of the claim, submitted the sale- deed dated 31.05.1971 as also copy of 'jamabandi' of Samvat 2003 and from the perusal thereof learned Sub Divisional Officer found that one bigha and fourteen biswa of land of khasra no.3259 (equal to

26 air of land), which is said to have been sold by the father of plaintiff claiming the same to be the self acquired land, was jointly entered in the name of Gyarsia, and that plaintiff and defendant are his sons and that the said land was sold by plaintiff by sale-deed dated 31.05.1971. In that sold out land, which was equal of

26 air of land, the plaintiff and defendant had equal share i.e. 13 air of land each, and that finding cannot be faulted. That finding has been rightly upheld by learned Revenue Appellate Authority as also learned Board of Revenue. There is concurrent finding of fact and this court does not find any ground to interfere therein. We are in complete agreement with the view expressed by the learned Single Judge. Hence, the appeal is devoid of merit and stands dismissed. Stay application also disposed of. (VINIT KUMAR MATHUR)J. (K.S. JHAVERI)J. Amit/30