MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 1 MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) JUDGMENT Dated: 6 May, 2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. J.R.Beniwal, for the appellant. Mr. C.R.Jakhar, for the respondent no. 4. BY THE COURT:(PER HON'BLE MR.SANGEET LODHA,J.) 1. This special appeal is directed against order dated 4.2.98 passed by the learned Single Judge of this court, whereby the writ petition preferred by the appellant assailing the validity of order dated 6.4.85 passed by the Additional Collector,Jodhpur and order dated 5.7.91 passed by the Board of Revenue,Rajasthan,Ajmer, stands dismissed. 2. The ceiling proceedings were initiated against the respondent no. 4 Shri Arjun Ram in the year 1975 under the Rajasthan Imposition of Ceiling on Agriculture Holding Act, 1973 ( in short “the Act of 1973” hereinafter). The respondent no. 4 submitted his return and also filed an affidavit stating therein that the land ad measuring 22 bighas 10 biswas has been given in partition to his mother, the appellant herein, on 22.12.72. The Authorised Officer being satisfied with the return filed on behalf MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 2 of the respondent no. 4 dropped the ceiling proceedings. 3. However, the ceiling proceedings were reopened by the State Government under Section 15(2) of the Act of 1973 on 29.8.80 and the matter was referred to the Additional Collector,Jodhpur to decide it afresh. After due consideration, the Additional Collector,Jodhpur found that the respondent no.4 is in possession of 17.15 bighas more land than permitted under the Ceiling Laws. Accordingly, by order dated 6.4.85, the land measuring 17.15 bighas comprising Khasra No.696 in the Village Aasop held by the respondent no. 4 was ordered to be acquired under the Ceiling Law. An appeal preferred by the appellant against the aforesaid order dated 6.4.85 was dismissed by the Board of Revenue, Rajasthan vide order dated 5.7.91. The writ petition preferred by the appellant assailing the aforesaid orders has also been dismissed by the learned Single Judge by the order under appeal. 4. The learned Single Judge has affirmed the finding arrived at by the learned Board of Revenue that after the death of Shri Ramjiwan , the respondent no. 4 Arjun Ram inherited all his land to the exclusion of the widow Chunni, the appellant herein. The court observed that the appellant was not the co-sharer of the land therefore, there could not be an occasion for the respondent no. 4 Arjun Ram to have agreed to partition of the land. That MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 3 apart, the court found that since the appellant had remarried before the coming into force of Hindu Succession Act, 1956 , therefore, she could not get any right in the property left by Shri Ramjiwan and the alleged partition cannot be given effect to. Accordingly, it is held by the learned Single Judge that the entire land inherited by Shri Arjun Ram is unencumbered and since, he was holding the land more than 35 bighas therefore, the acquisition of 17 bighas and 15 biswas of land cannot be held to be wrong. 5. It is submitted by the learned counsel for the appellant that admittedly, 22 bighas and 10 biwas land was given by the respondent no. 4 in partition to the appellant in the year 1972 itself and this fact stands admitted by him by way of affidavit in the ceiling proceedings therefore, no order for acquisition of the land could have been passed by the Additional Collector,Jodhpur in the ceiling proceedings reopened without giving an opportunity of hearing to the appellant. In support of his contentions, the learned counsel for the appellant has relied upon the decisions of the Hon'ble Supreme Court in the matters of “Nan Kanwar(Smt.) & Ors. vs. Board of Revenue for Rajasthan & Ors.”, 2004(9) SCC , 510 and “Dadan Ram vs. State of Bihar”, AIR 2008 S.C. 588. It is submitted by the learned counsel that in a suit for declaration , partition and permanent injunction filed by MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 4 the appellant in the court of Assistant Collector,Jodhpur being No. 57/82 , vide judgment and decree dated 30.9.85 the appellant has already been declared khatedar tenant of the land in question and a permanent injunction has also been issued in her favour to the effect that the respondent no. 4 herein shall not interfere with her possession over the land in question. The learned counsel submitted that the aforesaid judgment and decree has attained finality,therefore, by no stretch of imagination it can be said that the land in question is an unencumbered land. Accordingly, it is submitted by the learned counsel for the appellant that in view of the provisions of Section 16(4) of the Act of 1973, the respondent no. 4 is under an obligation to surrender the surplus land vesting in the State Government out of the land remaining with him after the transfer and the balance of surplus land remaining if any, can only be recovered from the appellant. In this regard, the learned counsel has relied upon the Bench decisions of this Court in the matters of “Mahesh Kanwar & Anr. vs. State of Rajasthan & Ors.”, 2003(1) RLR, 241, “Badri Lal & Ors. vs. State of Rajasthan”, 1992(2) WLC, 256 and “Bhera Ram vs. Board of Revenue”, RLW 1995(1) (Raj.), 555. 6. Per contra, the learned counsel appearing on behalf of the respondent no. 4 submitted that the partition on the basis of MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 5 which the appellant claims possession of the land is not recognised under the law therefore, in terms of the provisions of Section 6 , she was not entitled for any opportunity of hearing in the ceiling proceedings and cannot claim protection u/s 16(4) of the Act of 1973. In this regard,the learned counsel has relied upon a Bench decision of this Court in the matter of “Matadin vs. The Board of Revenue & Ors.”, RRT 2009(1) , 155 . The learned counsel submitted that the transfer of the land by way of partition which is not in accordance with law cannot be recognised even by this court. The learned counsel submitted that the illegal decree cannot be given effect to therefore, on the strength of the judgment and decree dated 30.9.85 (Annexure 4), the appellant does not acquire any right and on that basis she cannot be permitted to contend that the land in her possession has to be treated encumbered land. The learned counsel further submitted that the contention that the land in question has to be treated encumbered land in view of the decree dated 30.9.85 (Annex.4) was never raised by the appellant before the Board of Revenue or before the learned Single Judge therefore, she cannot be permitted to take such plea at this belated stage before this court in special appeal. 7. Replying the arguments of the learned counsel for the respondent no. 4 , it is submitted by the learned counsel that the MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 6 judgment and decree dated 30.9.85 has been placed on record as Annexure 4 with the writ petition and the contentions were raised by the appellant before the learned Single Judge on the strength of that decree as well. It is submitted by the learned counsel that the Tehsildar, Bhopalgarh was also party respondent in the suit filed by the appellant against the respondent no. 4 decreed as aforesaid therefore, the respondents cannot be permitted to raise any objections with regard to the said plea being taken before this court even at this stage. It is submitted by the learned counsel that if the facts are not in dispute then, a question of law can always be raised even at the appellate stage. 8. We have considered the rival submissions and perused the material on record. 9. The first question arises for consideration is as to whether the appellant who was given the land in question in family partition, had any right to be heard in the ceiling proceedings reopened against respondent no. 4 under Section 15(2) of the Act of 1973. 10. As per provisions of Section 6 of the Act of 1973, the transfer of land by way of sale , gift , exchange, assignment , surrender, bequest , creation of trust or otherwise made on or after 26.9.1970 is deemed to have been made in order to defeat MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 7 the provisions of the Act of 1973 and such transfer shall not be recognised or taken into consideration in determining the ceiling area applicable to a person. However, if the transfers are made before 1.1.73 and same are found to be bona fide , the burden whereof is on transferor, are recognizable . Therefore, if the transferor fails to prove the transaction as bona fide by producing cogent evidence, the land covered by such transactions shall be taken into consideration in determining the ceiling area applicable to a person. Thus, Section 6 of the Act of 1973 does not contemplate any opportunity of hearing to the transferees so far as determination of lands in excess of the ceiling limit in the hands of lands holder is concerned. 11. In Nan Kanwar's case (supra), while dealing with the provisions of Section 30 D of Rajasthan Tenancy Act, 1955 inserted vide Rajasthan Act of 1970 w.e.f. 18.8.70 providing that the transfer made by a land holder upto 31.12.79 in favour of an agriculturist domicile in Rajasthan shall be recognised for the purpose of determination of ceiling area applicable to the land holder , the Hon'ble Supreme Court while dealing with the rights of a transferee of the land before the cut off date observed that the authority concerned should have given the notice to the transferees before determining their status as to whether they were domiciled in the Rajasthan or not and whether the land MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 8 covered by the sale deed could have been offered as surplus land by the original holder. 12. Similarly, in Dadan Ram's case (supra), while dealing with the matter arising out of Section 45 B of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of the Surplus Land) Act, 1961 which empowers the State Government or the Collector of the District authorised in this behalf to reopen and dispose of afresh any case which was already been disposed of by the Collector under the Act, the Hon'ble Supreme Court observed that prior to reopening issue of notice an opportunity of hearing of the land holder or the person in possession of the land are mandatory. 13. In Mata Din's case (supra) relied upon by the learned counsel for the respondent , a Bench of this court relying upon a Full Bench decision of this court in Kesa Ram vs. State of Rajasthan, 1987 RLW , 1, observed that the appellants therein who were purchaser of the land before the cut off date i.e. 1.1.73 have no right to challenge the issue regarding declaration of the land to be surplus or not inasmuch as, the transfer effected after the cut off date is otherwise unrecognised under the Act of 1973. 14. It is to be noticed that the appellant was not claiming the rights on the basis of any transfer effected by the respondent no. MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 9 4 as khatedar of the land in question but, she was claiming her share in the tenancy rights devolve upon her by succession on the death of her husband. It is not in dispute that earlier share of the appellant in the property was recognised by the Competent Authority and the ceiling proceedings initiated against the respondent no. 4 were dropped.Therefore, while reopening the proceedings on the ground that the appellant cannot claim any share in the property and after the death of her husband Shri Ramjiwan,the respondent no. 4 inherited all his land to the exclusion of the appellant, the opportunity of hearing could not have been denied to the appellant who was admittedly in possession of the land received by her as a result of family partition. 15. Even if it is assumed for the sake for arguments that the appellant as a transferee had no right of hearing until the determination of ceiling area in the hands of respondent no. 4, undoubtedly keeping in view the provisions of Section 30 E(2) of the Rajasthan Tenancy Act, 1955 and Section 16(4) of the Act of 1973 , the appellant had a right to contend that the lands in her hands has to be treated as encumbered lands and cannot be acquired in preference of unencumbered lands in possession of the respondent no. 4. Therefore, at least to this extent, the appellant was entitled for opportunity of hearing. MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 10 16. This takes us to consideration of the question as to whether the appellant had any share in the land left by Shri Ramjiwan. The Board of Revenue after due consideration of the material on record has arrived at a categorical finding that Shri Ramjiwan had died way back in Samvat 2003 i.e. much before the Hindu Succession Act, 1956 came into force.It is not disputed before us that at the relevant time Marwar Tenancy Act was in force and therein the main lineal descedent excluded the widow of the deceased in succession. The learned Single Judge has found that the appellant had remarried with one Shri Ram Bux in the Samvat Year 2005 i.e. much before the coming into force of the Hindu Succession Act, 1956, therefore, she could not get any right in the property left by Shri Ramjiwan. Thus, the conclusion of the courts below that the entire land left by Shri Ramjiwan was inherited by the respondent no. 4 cannot be faulted with. Moreover, vide judgment and decree dated 30.9.85 passed by the Assistant Collector, Jodhpur in a suit for declaration, partition and permanent injunction preferred by the appellant , it has been categorically held that the appellant was not entitled for any share in the land left out by her husband Shri Ramjiwan. Even according to the appellant, the said judgment and decree has attained finality. Therefore, viewed from any angle, the appellant cannot MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 11 claim any share in the land left by her husband Shri Ramjiwan. 17. Coming to the next question as to whether the land in possession of the appellant can be treated to be encumbered land in view of possession in pursuance of the partition effected prior to 1.1.73 so also on the basis of the judgment and decree dated 30.9.85 (Annexure 4) passed by the court of competent jurisdiction, which has attained finality. But, before considering the said question, it will be appropriate to consider the objection raised by the counsel for the respondent no. 4 that the appellant cannot be permitted to raise the said question at the appellate stage before this court. 18. As noticed above, it is not in dispute that the judgment and decree dated 30.9.85 has attained finality. Suffice it to say that the facts on the basis of which the contention is sought to be raised by the appellant are not in dispute. If the impugned decree creates any right in favour of the appellant then obviously, the land in question has to be treated an encumbered land and in that case, the provisions of Section 16(4) will operate and the respondent no. 4 will be under an obligation to first surrender the land in his possession and surplus land remaining if any, may be recovered from the land in possession of the appellant. Moreover, a perusal of the order under appeal goes to show that the contention in this regard was raised by the learned MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 12 counsel appearing on behalf of the appellant before the learned Single Judge in terms that Annexure 4 i.e. judgment and decree dated 30.9.85 passed in favour of the appellant had attained finality and as the land belongs to the appellant, it was not free from encumbrance and could not have been taken in ceiling proceedings u/s 18 of the Act of 1973. Of course, such contention does not appear to have been raised by the appellant before the Board of Revenue. But then, since the facts are not in dispute therefore, in our considered opinion, the contention sought to be raised which goes to the root of the matter can be permitted to be raised before this court as well. Accordingly, the objection raised by the learned counsel for the respondent no. 4 is over ruled. 19. It is to be noticed that in the suit filed by the appellant against the respondent no. 4 and the Tehsildar, Bhopalgarh has been decreed by the court of competent jurisdiction after trial in accordance with law. It is settled law that a decree passed by the court of competent jurisdiction cannot be set at naught and has to be given effect to unless it is set aside on appeal by a court of competent jurisdiction or the same is found to be a nullity in eye of law. It is to be noticed that while passing the aforesaid decree in favour of the appellant , the learned trial court has arrived at the categorical finding that the appellant is not entitled to any MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 13 share in the property left by his deceased husband Shri Ramjiwan. However, the respondent no. 4 by way of an affidavit dated 14.5.75 admitted before the learned trial court that in terms of the agreement of partition, he had given the possession of the land in question to the appellant herein in the year 1968- 69. It was also not disputed before the learned trial court that in pursuance of the partition as aforesaid the land has already been recorded in the name of the appellant in the record of rights. Thus, considering the factum of partition as aforesaid and the continuous cultivatory possession of the land with the appellant for a period more than 12 years, the appellant was declared khatedar of the land in question by the learned trial court. Thus, on the facts and in the circumstances of the case, so far as the respondent no. 4 is concerned, he cannot be permitted to contend that the said decree is not binding upon him. Therefore, for whatever rights acquired by the appellant in the land in question on being given to her by way of her family partition and on the strength of the decree dated 30.9.85 passed in her favour as aforesaid, the same has to be treated as encumbered land and the respondent no. 4 cannot be permitted to contend that since the appellant had no share in the land in question under the law therefore, the entire land existing in his name has to be treated unencumbered land. MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 14 20. As per provisions of Section 16(4) of the Act of 1973 , where any transfer of the land is not recognised or taken into consideration in determining the ceiling area applicable to the transferor under sub-section 1 of Section 6, the authorised officer is under an obligation to call upon the transferor to surrender the surplus land first, out of the land remaining with him after the transfer and thereafter, balance of surplus land if any, can be recovered from the transferee by his ejectment. 21. In Mahesh Kanwar's case (supra), a Bench of this court considering the question of rights of the transferee in terms of provisions of Section 16(4) of the Act of 1973 held that :- “57.In view of aforesaid discussion and keeping in view that obligation is cast on the holder to surrender unencumbered land and not the encumbered land in the first instance, the expression `encumbered' must relate to burden or clog on right of the holder to deal with the holding in question which results in a clog or restraint on his rights in relation to such holdings as a result of any transaction made by him. Once we come to conclusion that rights created under Sec.53A in favour of transferor(sic transferee?) are encumbrance or burden or clog or restraints the rights of transferor in relation to exercise of his rights in relation of land against the transferees is an `encumbrance' within the meaning of Sec.30E (2) of the Act of 1955 or Sec.18 of the Act of 1973, there is no impediment in reaching further conclusion that such an obligation of holder can be enforced and State can also be compelled to give effect to it.” 22. Similar view has been taken by a Bench of this Court in Badri Lal's case and Bhera Ram's case(supra). MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 15 23. Thus, the land in possession of the appellant which is encumbered land cannot be taken possession of in the first instance and the respondent no. 4 is under an obligation to surrender the land in his possession first. 24. In view of the discussion above, we are of the considered opinion that the appellant had no share in the land left out by his husband Shri Ramjiwan and therefore, the land alleged to have been given to her in pursuance of the oral partition has to be taken into account while determining for the purpose of computation of ceiling area applicable to the respondent no. 4. However, looking to the continuous cultivatory possession of the appellant over the land in question given to her under a family partition by the respondent no. 4 in the year 1972 voluntarily and the appellant having been declared khatedar tenant of the land in question by way of decree passed by the court of competent jurisdiction which has attained finality , the same has to be treated as encumbered land therefore, while exercising option in terms of Section 16(4) , the respondent no. 4 is under an obligation to surrender the unencumbered land in his possession and he could not have exercised the option to surrender the land in possession of the appellant. 25. Accordingly, the special appeal succeeds, it is hereby allowed. The order dated 4.2.98 passed by the learned Single MST. CHUNNI VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO.318/98) 16 Judge is set aside. The writ petition is allowed. The order impugned dated 5.7.91 passed by the Board of Revenue , Rajasthan, Ajmer is set aside. The order dated 6.4.85 passed by the Additional Collector,Jodhpur is set aside to the extent it directs the acquisition of 17.15 bighas land comprising khasra No. 696 which is in possession of the appellant. The Additional Collector,Jodhpur is directed to take possession of the surplus land out of the unencumbered land possessed by the respondent no. 4. If the same falls short , the balance of surplus land may be recovered from the appellant. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-