Rajasthan High Court
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
(Downloaded on 28/08/2024 at 08:58:05 PM)
[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.
[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
[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
[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),
[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
[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
[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.
[2024:RJ-JP:30420] (9 of 13) [CW-5121/1997]
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
[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
[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
[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
[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
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