- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: O R D E R LRs of Mam Raj Vs. Board of Revenue & Ors. S.B. CIVIL WRIT PETITION NO.439/2003 UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. DATE OF ORDER : 18.7.2007 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA Mr.Sudhir Sharma, for the petitioner. Mr.JR Beniwal, for the respondents. <><><> BY THE COURT: Heard learned counsel for the parties. A suit for declaration and partition for agricultural land of Khasra nos.231, 715 and 725 measuring 84 bigha 10 biswas was filed by Tejaram and Banwari Lal. In the said partition suit, the defendant no.1- petitioner Mamraj filed the written statement and contested the suit and stated that the land of Khasra no.231 measuring - 2 - 29.03 bigha was his personal purchased land and he purchased this land from one Udairaj by registered sale deed. He also stated that old number of Khasra no.231 was 75 and in this land neither the plaintiffs nor defendant no.2 had any right, title or interest. The petitioner defendant Mamraj further stated that in the land of Khasra nos.715 and 725 also, there is no share of the plaintiff and the defendant no.2. In the trial court a compromise was submitted by the parties on 10.8.1992, by which 10 bighas of land of Khasra no.231, which was in the name of Mamraj alone was given to plaintiff Tejaram and his brother Jesaram and part of land of Khasra nos.715 and 725 measuring 50 bigha was divided and 8 bigha land was given to Mamraj defendant. It is also stated that Tejaram and Jesaram shall have 42 bigha of land apart from the land of Khasra no.231 measuring 10 bigha. The compromise was duly attested by the trial court. The trial court vide judgment and decree dated 24.8.1994 decreed the suit of the plaintiffs in terms of the compromise. - 3 - Aggrieved against the said judgment and decree, two appeals were preferred, one by Manraj and another by Mst. Chandi Wd/o Late Jesaram, out of which the appeal filed by Mamraj having no.495/1994 was allowed by the revenue appellate authority whereas the appeal filed by Mst. Chandi Wd/o Late Jesaram having no.500/94 was dismissed by the revenue appellate authority. The learned revenue appellate authority relied upon the sale deed, which was in the name of Jesaram alone for arriving at the conclusion that the said land purchased by Jesaram, therefore, it would not the joint holding property nor it was the property of the joint Hindu Family and since it was self-acquired property, therefore, it cannot be subjected to partition. The trial court also relied upon Section 4 of the Benami Transaction Prohibition Act, 1988 (hereinafter referred to as the Act of 1988) and held that plea of Benami cannot be accepted. The plaintiff Tejaram preferred an appeal before the Board of Revenue against the judgment and decree of the first appellate court dated 16th May, 1995. The Board of Revenue held that the compromise was - 4 - duly attested on 9.8.1992 and the decree was passed almost two years thereafter. The defendant Mamraj never raised any objection against the compromise. In view of the above, even if the defendant Mamraj initially denied the plaint allegations, but subsequently, he entered into compromise then he cannot resile back from the compromise. The Board of Revenue was of the view that the first appellate court committed serious error of law by applying the provisions of the Act of 1988. Learned counsel for the petitioner submitted that the Board of Revenue committed serious error of law in allowing the appeal of the respondent and setting aside the judgment and decree of the first appellate court. According to learned counsel for the petitioner, the defendant – petitioner Mamraj never signed the compromise and the registered sale deeds are in favour of the defendant Mamraj. In view of the above, the trial court committed serious error of law by decreeing the suit of the plaintiffs for partition of the property. - 5 - Learned counsel for the respondent submitted that the compromise, which was entered into by the defendant Mamraj, was duly verified by the trial court. The said compromise was never challenged by defendant before the same court at any point of time. The Board of Revenue also took notice of the fact that as per the site inspection report, all the three persons were found in possession of the land to the extent of 1/3rd share each, therefore, not only the compromise was duly attested, but that fact stands corroborated by the Commissioner's report and in view of the above, if some of the properties were purchased in the name of the co-parcener then the provisions of the Act of 1988 cannot be applied. I considered the submissions of learned counsel for the parties and perused the record of the writ petition also. The petitioner despite challenging the compromise dated 10.8.1992, did not choose to place on record the copy of the said compromise. All the three courts below - 6 - clearly held that the compromise was attested by the court. Even the first appellate court did not hold that compromise was not attested, therefore, so far as entering in the compromise by the defendant Mamraj is concerned, to contradict compromise the petitioner did not produce the copy of the compromise. In view of the compromise, it can be presumed that the land in question was purchased in the name of one of the co- parcener and, therefore, restriction of the Act of 1988 cannot be applied in the present facts of the case. The first appellate court committed serious error of law by ignoring compromise. Mamraj was bound by his own admission and had no right to challenge the decree, which was passed on the basis of compromise, unless he could show that compromise was obtained by fraud. Be that as it may, it has not been explained when the compromise was verified two years before passing of the decree by the trial court why the defendant did not choose to challenge the compromise. The suit remained pending because of the reason some other defendants were also party in the suit and the suit against those was - 7 - withdrawn. Therefore, it cannot be said that the compromise was not entered into between the parties. In view of the above reasons, the Board of Revenue rightly set aside the judgment and decree of the first appellate court i.e., the revenue appellate authority dated 16th May, 1995. In view of the above reasons, the writ petition of the petitioner is dismissed. (PRAKASH TATIA), J. c.p.goyal/-