M.C. Jain, J.
1. Ceiling proceedings were initiated against the respondents No. 6 and 7, Prabhu and Narain under the old ceiling law. The Sub-divisional Officer, by his order dated May 31, 1975, assumed 19.76 standard acre lands from the lands of Narain as well as Prabhu each. The petitioners preferred an appeal before the Revenue Appellate Authority. Their case was that the lands of Khasra No. 132 measuring 23 bighas 12 biswas khasra No. 128, measuring 38 bighas and 17 biswas and khasra No. 11, measuring 32 bighas 11 biswas situated in village Joravarpura is in their khatedari land and in a suit under Section 183 of the Rajasthan Tenancy Act, a decree has been passed in their favour on 29th December, 1970. Their further case was that Prabhu and Narain have given their option for surrendering the excess land which included the petitioners 6 bighas land of khasra No. 11. The Revenue Appellate Authority, found that the petitioners are not aggrieved persons and so appeal is not competent. However, the direction was given to the S.D.O. that while resuming the excess land care may be taken that the disputed land may not be resumed. Against order of R.A.A. dated 5-1-76, (Annexure 6) a revision petition was preferred by Prabhu and Narain respondents No. 6 and 7, which was allowed. However, the Board of Revenue, observed that from the S.D.O.'s order it would appear that he has asked the petitioners to submit their option. (They have not indicated that they wish to surrender the land held by the present petitioners. As such it was further observed by the learned Member of the Board of Revenue, Ajmer, that when the S.D.O. has allowed an option presumably he will ensure that this encumbered land is not surrendered as far as possible in accordance with the second proviso to Section 30E(2) of the Tenancy Act.
2. The petitioners case is that they are the khatedars of 6 bighas land of khasra No. 11 situated in village Joravarpura, and this land could not be surrendered by respondent No. 6 and 7 Prabhu and Narain. They are in possession of this land. The fact of actual surrender and taking of possession by the Patwari on 25-12-75, vide copy of 'Dakhalnama' (Annexure 8) was not brought to the notice of the Revenue Appellate Authority and the Board of Revenue. It has also been asserted by the petitioners that the petitioners were not put out of possession. At the most they continue to remain in possession over 6 bighas land of khasra No. 11 and in respect of this land the proceedings for taking possession are only paper proceedings. After the presentation of the writ petition, dispossession of the petitioners from this 6 bighas of land was stayed. So the alleged Dakhalnama would not come in the way of petitioners and it is urged by the learned Counsel for the petitioners that the direction given by the Revenue Appellate Authority, and the observations made by the Board of Revenue, Ajmer, can still be implemented and executed. Respondent No. 6 & 7, Prabhu and Narain can be called upon to surrender 6 bighas land which is in their possession.
3. Respondent No. 6 and 7 Prabhu and Narain, have not appeared despite service of the notice. So far as the State is concerned, there can be no interest of the State as to which particular land is surrendered to it. The interest of the State lies only in taking possession of the excess land. In Banwarilal Nagpal v. The State of Rajasthan 1982 RLW 663 it has been observed as under:
From the scheme of Section 16(4) and Section 18 of the Act, it is clear that first, that surplus land is to be surrendered, which is with the transferor and it is only the balance of surplus land which shall be taken possession of from the transferee by his ejectment. The transferee comes into picture, only in connection with taking possession of the balance of surplus land meaning there by that when the entire land remaining in possession of the transferor has been surrendered and there will remain the balance surplus land to be taken possession of, then possession of that balance of surplus land can be taken from the transferee. It is true, that there is no specific provision empowering the authorised officer either to compel the transferor to surrender the surplus land out of the land, which is with the transferor, but this in my opinion, is implicit in the very scheme of things.
4. So far as the petitioners are concerned, they do not claim to be transferees. They claim that they are the khatedars of the land and their predecessor-in-interest was one Ramnath. There exists a decree in their favour against Prabhu and Narain respondent No. 6 & 7, so their land is not at all liable to be resumed. THUS, first of all respondent No. 6 and 7 can be asked to surrender the excess land out of the land which is in their possession. If the obligation of respondent No. 6 & 7 for any reason cannot be enforced against them in respect of the land in their possession then it would be open to the petitioners to enforce their right by resorting to the remedy of a suit for declaration and injunction not only against the respondent No. 6 and 7, Prabhu and Narain, but also against the State of Rajasthan Reference in this connection may be made to a decision of this Court in Bhera Ram v. The State of Rajasthan 1979 WLN 224.
5. In the above view of the matter the writ petition deserves to be allowed and the S.D.O. is directed to enforce the liability of respondent No. 6 and 7 Prabhu and Narain, to surrender the excess land out of the land which is in their possession. It would however be open to the petitioners to resort to the remedy of suit in case, the land in the possession of Prabhu and Narain respondent No. 6 and 7 is not available to be surrendered by them. Parties are left to bear their own costs.