[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- (1) SPL. APPL. WRIT No. 812 of 1998 SHYAM SINGH V/S STATE & ORS. (2) SPL. APPL. WRIT No. 296 of 1998 STATE & ORS V/S SHYAM SINGH & ORS Mr. NS ACHARYA, for Shyam Singh Mr. OP BOOB, Addl. Government Counsel Date of Order : 2.9.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER BY THE COURT (PER HON'BLE GUPTA, J.): These two appeals, arise out of the same order of the learned Single Judge, dated 01.04.1997, whereby writ petition filed by Shyam Singh was partly allowed, and the learned Addl. Collector was directed to recalculate the surplus standard acres of land, and pass order accordingly. The necessary facts are, that ceiling proceedings were initiated against one Vijay Singh, under the old Ceiling Act, which were dropped, and thereafter, the matter was ordered to be reopened, and fresh proceedings were taken by Addl. Collector. It was considered, that on 25.02.1958 land holder Vijay Singh had 662 bighas of land, [2] out of which he sold certain amounts of land, and as on 01.04.1966 only 615 bighas of land remained with him. Vijay Singh, died during these proceedings, and his son Shyam Singh appeared, and submitted that Vijay Singh had died two years ago, and as on 01.04.1964, he was major, and was not dependent on Vijay Singh, and on 01.04.1964, Vijay Singh's mother Chiman Kanwar was there, who was also not dependent on him, and was earning from out of the land given to her. The learned Addl. Collector has found, that as on 01.06.1966, Shyam Singh was major, and was not dependent on him. Then, out of alienations made, a transfer of 47 bigha 1 biswa of land was recognised, and thus, stand was taken that Vijay Singh had 614 bigha 19 biswa of land with him. Then, it was considered, that the land was ancestral, wherein Vijay Singh's son also had a share, and therefore, while determining ceiling area, the share of son will have to be excluded. Then, provisions of Sec.6 of the Hindu Succession Act were considered, and it was found, that there were three coparceners, being Vijay Singh, Vijay Singh's wife Nand Kanwar, and his son (Shyam Singh), and thus, each one was found to be having a share to the extent of 205 bighas. Then, taking the son to be constituting independent family, it was found that Vijay Singh held 410 bighas of land, and since he had not claimed share of the mother in the family, therefore, taking him to be entitled to 30 standard acres of land, it was found that 3.25 standard acres of land was in excess, and was ordered to be resumed. The matter was carried before the learned Board of Revenue, and it was argued before the Board of Revenue, that in the ancestral land, only father and son are [3] entitled to partition, and that being the position, land falling to share of Vijay Singh, comes to 307 bigha 10 biswa only. However learned Board of Revenue found, that partition takes place between father and son, so also the wife, thus, the appeal was dismissed. Learned Single Judge found, that there is an apparent error committed by learned Addl. Collector in the impugned order, inasmuch as, according to Annex.2 (the order of the learned Addl. Collector), total land comes to 430 bigha, with the result 3.25 standard acres of land is surplus, and he was found entitled to retain 410 bighas of land, i.e. 205 bighas, in his own name, and 205 bighas in his wife's name. Therefore, the Addl. Collector was directed to acquire surplus land on the basis of 410 bighas. Thus, the matter was sent back. While beginning the order, submission was noticed, that share of the mother of Vijay Singh had not been considered, but that submission was turned down, on the ground of it having not been argued before the Board of Revenue. After having heard learned counsel for the parties, we are not in a position to sustain the impugned order of the learned Single Judge, inasmuch as, the learned Single Judge has proceeded on assumption, that according to the order of learned Addl. Collector, Vijay Singh had 430 bighas of land which comes to 30 standard acres and 3.25 acres of land was found to be surplus, while Vijay Singh is having only 410 bighas of land, and therefore the matter was sent back. As against this, what we find is, that both [4] the learned authorities below have found Vijay Singh to be having 410 bighas of land, and in concluding this, it has been calculated, in the manner that, out of 662 bighas, 47 bigha 1 biswa had been sold, which sale has been recognized; out of remaining, being 614 bigha 19 biswa, say 615 bigha, two portions have been found with Vijay Singh, being of his wife, and himself, and third portion has been found to be with his son Shyam Singh. This is one aspect of matter. The other important aspect of the matter is, that the learned Board of Revenue, in our view, was clearly in error, in negativing the contention of the writ petitioner, about the land being required to be divided between father and son. Under old Hindu Law, wife did not have any independent share, in the ancestral land, capable of being partitioned. May be, that Vijay Singh's mother might have been entitled to share, which has not been claimed by Vijay Singh, but then, in any case Vijay Singh's wife Nand Kanwar could not be said to be having any notional share in the land. She was only Member of the family of Vijay Singh. In that view of the matter, the land could be partitioned, only between father and son, in which event, Vijay Singh was to have 307.10 biswa of land, which, even according to the calculation given by the authorities below, does not exceed the ceiling limit. In that view of the matter, Appeal No.812 is allowed, while Appeal No.296 is dismissed. The orders of [5] the learned Single Judge, so also of the Board of Revenue, and the learned Addl. Collector, are set aside, and it is ordered, that the petitioner does not hold land in excess of the ceiling area. (KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. jpa/