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Rajasthan High Court · body

2001 DIGILAW 1094 (RAJ)

Ram Swaroop v. B. O. R.

2001-07-17

K.S.RATHORE

body2001
Honble RATHORE, J.–Plaintiff Radha Kishan, who is not a party in this writ petition filed a suit under Section 43 of the Rajasthan Tenancy Act in the Court of Sub Divisional Officer, Tonk against the petitioners wherein it was alleged that the land in dispute was mortgaged with the defendants petitioners and in view of Section 43 of the Act the same has been redeemed automatically. Therefore, the defendants have become trespasser and a decree be passed in favour of the plaintiff non-petitioner No.3, Ramji Lal and against the defendants and that the defendants be directed to hand over the possession of the land in dispute. During the pendency of the suit plaintiff Radha Kishan died on 4.2.75. An application for substitution of his legal representatives was filed by Ramji Lal alleging himself to be an adopted son of late Shri Radha Kishan. The defendants petitioners filed reply to the aforesaid application and submitted that Ramji Lal is not an adopted son. It was also submitted that Radha Kishan has not executed any will in favour of any one. An affidavit of Mangi Lal dated 22.8.75 was also filed in support of the reply. The defendant petitioners also submitted before the lower court that the matter relating to the adoption of Ramji Lal by sole plaintiff Radha Kishan cannot be decided by the revenue court therefore, the revenue court has got no jurisdiction and the matter be referred to the civil court and/or revenue suit may be dismissed on the ground that it has got no jurisdiction. The learned A.C.M. passed the order dated 19.9.88 that the plaintiff does not want to file any reply of the aforesaid application. Arguments were heard on the application regarding jurisdiction on 21.9.88 and the case was fixed for orders on 27.9.88. The learned A.C.M. dismissed the application of the defendant petitioner regarding jurisdiction vide order dated 27.9.88. The application which was filed by Ramji Lal for substitution of legal representative of Radha Kishan was heard on 30.9.88 and vide order dated 5.10.88 the application filed by Ramji Lal was allowed. (2). The petitioners filed a revision petition before the Board of Revenue against the order dated 27.9.88 and the same was rejected vide order dated 30.3.93. The application which was filed by Ramji Lal for substitution of legal representative of Radha Kishan was heard on 30.9.88 and vide order dated 5.10.88 the application filed by Ramji Lal was allowed. (2). The petitioners filed a revision petition before the Board of Revenue against the order dated 27.9.88 and the same was rejected vide order dated 30.3.93. Thereafter the petitioners also filed a review petition wherein it was submitted that the question involved in the present case was about the jurisdiction of the civil court whereas; in the order dated 30.3.93 the question of substitution of legal representatives has been decided, therefore, there is an error apparent on the face of the record but the review petition was also dismissed vide order dated 19.7.93. (3). Aggrieved and dissatisfied by the order passed by the Assistant Collector (I), Tonk dated 27.9.88 as well as of Revenue Board dated 30.3.93 passed in the revision petition and that of in review petition dated 19.7.93, preferred this present writ petition before this court for setting aside these orders. (4). The petitioners in support of his contention placed reliance on the judgments reported in Sheo Sahay vs. LRs. of Smt. Mathuri (1) and Ramji Lal vs. Sultan & Ors. (2). (5). Heard rival contentions of the parties. (6). The petitioners main contention is that the learned Board of Revenue did not take into consideration about the real controversy involved in the matter, and the learned A.C.M. also not considered the objection raised by the petitioners since the issue relates to the adoption of Ramji Lal and validity of will alleged to have been executed in favour of Ramji Lal by Radba Kishan. The question of adoption as well as validity of will can only be tried or judged by the civil court only and revenue court has got no jurisdiction whatsoever. Under these circumstances, a suit pending before the Assistant Collector & Magistrate ought to have been transferred to the civil court for decision on the question of adoption and will. Without understanding the real controversy involved in the present matter the learned Assistant Collector wrongly rejected the application regarding jurisdiction filed by the petitioners. (7). It is further submitted that the learned Board of Revenue has passed its order on the presumption that the matter regarding substitution was decided by the order dated 27.9.88. Without understanding the real controversy involved in the present matter the learned Assistant Collector wrongly rejected the application regarding jurisdiction filed by the petitioners. (7). It is further submitted that the learned Board of Revenue has passed its order on the presumption that the matter regarding substitution was decided by the order dated 27.9.88. The matter relating to the substitution of the legal representative of Radha Kishan was not in dispute in revision filed before the Revenue Board. The sole question was "whether the revenue courts have jurisdiction to decide the question of adoption and will"? (8). Reply has been filed on behalf of respondent No.4 in the similar writ petition No.1983. In the reply it has been mentioned that if any suit before the revenue court was pending, a question of propriety in respect of land for being the subject matter of the suit, the revenue court shall frame the issue on the question to submit the record to the competent civil court and decision of that issue only and on the basis of the pleadings of the parties issues are to be framed and thereafter the question of reference to the civil court will arise. Therefore, the revision petition by the Board of Revenue against the order dated 27.9.1988 Was rightly rejected vide its order dated 30.3.93. (9). It is also submitted that no illegality has been committed by the ACM (1) by allowing the application for substitution as a party. After taking Ramji Lal on record it was open to the petitioner to file the reply and thereafter the issue ought to have been framed and thereafter the matter can only be referred to civil court. The matter is still pending before the ACM and the issues art yet to be framed but the petitioner without waiting for framing of issues challenged the order dated 27.9.88 which was rightly rejected by the Board of Revenue dated 31.12.93. (10). In the judgment of Sheo Sahays case (supra) the petitioner has simply filed for perpetual injunction and has not sought the relief of pre-declaration of his khatedari rights in respect of his alleged half share in the suit land. As per the Jamabandi entries Svt. (10). In the judgment of Sheo Sahays case (supra) the petitioner has simply filed for perpetual injunction and has not sought the relief of pre-declaration of his khatedari rights in respect of his alleged half share in the suit land. As per the Jamabandi entries Svt. 2032 to 2035, Sri Narayan was the recorded khatedar of the disputed land and that after his death vide mutation No.30 dated 21.1.85, the said land was mutated in favour of his widow Smt. Mathuri. Thus, prima facie petitioner Sheo Sahay is neither the recorded khatedar nor the tenant of the disputed land. It is needless to mention that a suit for perpetual injunction under section 188 of the Act can only be filed by a tenant. Therefore, he has failed to show a prima facie case in his favour. Further, the petitioner has not filed any adoption deed. He has simply filed affidavits of certain persons, who are of Meena community. In these affidavits neither date of the. alleged adoption has been mentioned nor the requisite details of the ceremony of the adoption have been incorporated. The petitioner has even failed to file the affidavit of his natural father Jai Lal, who was the most material witness to prove the alleged factum of adoption. He has also not filed any documentary evidence namely school certificate, voter list, ration card etc. to prima facie prove that he was the adopted son of late Sri Narayan. On the other hand, Smt. Mathuri has categorically denied the alleged factum of adoption. She has also filed affidavit of some villagers. The relief regarding declaration of adoption can only be given by a civil court and not by a revenue court. (11). The facts of the said case are altogether different and are not applicable to the instant case. The instant case is not with regard to the declaration of adoption and also the suit was not for perpetual injunction but on the basis of adoption deed and will executed in favour of the plaintiff non-petitioner he was substituted in place of Radha Kishan as being adopted son and therefore, this case has no relevancy. (12). Another judgment referred by the petitioner in the case Ramji Lal vs. Sultan & Ors. (12). Another judgment referred by the petitioner in the case Ramji Lal vs. Sultan & Ors. (supra) was with regard to declaration of adoption and the High Court has held that since the suit was primarily for the declaration of the adoption and, as such, was triable by a civil court. This is also not relevant. (13). The Board of Revenue has held that the learned Assistant Collector by his order dated 27.9.88 has decided that he had jurisdiction to substitute the plaintiff under Order 22 Rule 3 read with Order 22 Rule 5 CPC. Order 22 Rule 5 lays down ``Where a question arises as to whether any person is or is not the legal representative to a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. The learned Board of Revenue while deciding the revision petition directed the learned Assistant Collector (1) Tonk to decide the suit as expeditiously as possible and within a period of maximum one year. (14). In the review petition the Board of Revenue vide its judgment dated 19.7.93 again reiterated the finding given in the revision petition and made clear that the facts that Radha Kishan was the plaintiff, he died on 4.2.1975 during the pendency of the suit, and that an application was filed on 16.4.1975 i.e. within time, are not disputed. An application under Order 22 Rule 3 or under Rule 4 C.P.C. is to be decided by the court where the death of the plaintiff or the defendant, as the case may be, occurs. The court under this provision does not mean civil court. Moreover, the substitution of a claimant either on the basis of will or adoption of the deceased plaintiff or the defendant does not determine rights of the parties inter-se but are only for the limited purpose. This question has to be determined by the court where death takes place and the learned Assistant Collector has yet to determine whether the non-applicant has to be substituted for the deceased plaintiff Radha Kishan. He only decided the question that he had the jurisdiction to decide the application under Order 22 Rule 3 CPC filed on 16.4.1975 and the Assistant Collector has jurisdiction and competence to pass the order dated 27.9.88. (15). He only decided the question that he had the jurisdiction to decide the application under Order 22 Rule 3 CPC filed on 16.4.1975 and the Assistant Collector has jurisdiction and competence to pass the order dated 27.9.88. (15). After hearing the arguments of the parties, I am of the firm opinion that the defendants ought to have filed reply and on the basis of the pleadings of the parties, issues were to be framed by the Board of Revenue and thereafter the question of reference to the civil court could have arisen. Not doing so, the revision petition was rightly rejected by the Board of Revenue. As also, the Board of Revenue has decided the question of substitution of legal representative and not about the jurisdiction of the civil Court, therefore, the Board of Revenue has rightly passed the order, for which Board is empowered. (16). Thus, I find no good reasons to interfere with the orders passed by the Courts below. The orders are reasoned and justified and in accordance with the provisions of law. The writ petition is dismissed. No orders as to cost.