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2002 DIGILAW 279 (RAJ)

Kanhaiya v. Kana

2002-02-02

H.S.PUNIA

body2002
PUNIA, Member – These are three revision petitions filed under Section 84 of the Rajasthan Land Revenue Act, 1956 (in short ``the Act) against the judgment passed by Addl. Divisional Commissioner, Jaipur dated 22.5.99, whereby second appeals filed by the non- petitioners No. 1 to 3 were allowed and judgment of first appellate court dated 3.8.98 and mutations No. 33, 34 and 35 were set-aside and mutation proceedings were stayed till decision of the regular suit pending in the revenue court. (2). The brief facts of the case are that deceased Rampal who was father of the petitioner and non-petitioners No. 1 to 3, was khatedar tenant of agriculture land comprised in three different Khatas. After the death of Rampal three mutations were sanctioned in favour of both the parties on 5.11.74. The non-petitioners No. 1 to 3 filed three first appeals on 6.12.93 before S.D.O., Dausa on the ground that mutations were sanctioned without notice to them and no opportunity of hearing afforded to them. It was also alleged that during the life time of their father during consolidation proceedings the land bearing Khasra No. 39 & 65 was given to Kanhaiya Lal separately which was got recorded in the name of Kanhaiya Lal and he is in possession of the said land and he has no share in the holdings left by their father. After hearing both the parties the learned S.D.O. dismissed all the three appeals by a common judgment. The non-petitioners filed second appeals before the learned Addl. Divisional Commissioner, Jaipur which were allowed by the impugned judgment. Hence these revision petitions. (3). Heard the learned counsel for both the parties. Since the facts and questions of law involved in all three revision petitions are common they are being disposed of by this common judgment. (4). The learned counsel for the petitioner has argued that after the death of Rampal, Gram Panchayat sanctioned mutations in favour of all four sons of deceased Rampal and there was no illegality in sanctioning the impugned mutations. The learned first appellate court examined the matter of sanctioning of mutations and came to the Conclusion that sanctioning of mutation is fiscal proceeding and does not decide the rights of the parties. The learned first appellate court examined the matter of sanctioning of mutations and came to the Conclusion that sanctioning of mutation is fiscal proceeding and does not decide the rights of the parties. Regular suit between the parties is pending in the court of ACM, Lalsot and question of khatedari rights can only be decided in the suit and on this ground the appeals were dismissed by the first appellate court. Therefore, the first appellate court has committed no jurisdictional error. The learned Add. Divisional Commissioner accepted the appeals on the sole ground that regular suit is pending between the parties which was not justified. The non-petitioners never challenged the mutations for a long period of eighteen years and mutations have been sanctioned after the death of Rampal in favour of all four sons. He has ``Smt. Jasoda vs. Bhagwan Singh (1) and ``Tarachand vs. Bihari Lal" (2). (5). As against this the learned counsel for the non-petitioners has argued that mutations were sanctioned without giving notice to the non-petitioners. The petitioner Kanhaiya Lal was given separate land by their father during consolidation operations and this question is to be decided in regular suit which is pending in the Court. Therefore, staying mutation proceedings during pendency of the suit is perfectly justified and no interference is required in the impugned judgment. He has placed reliance upon ``Smt. Shanti Devi vs. Babu Lal (3) and ``M/s Nahar Textile, Sanganer vs. Rajasthan Housing Board (4). (6). I have considered the rival submissions of the parties. (7). It is undisputed that deceased Rampal was father of the petitioner and non-petitioners No. 1 to 3 who died intestate, therefore, all natural heirs of the deceased are entitled for right of succession to the property left by the deceased and such property will devolve upon all heirs in accordance with the law. The non-petitioners have mainly raised a question that agriculture land bearing Khasra No. 39 and 65 was given to the petitioner Kanhaiya Lal by their father during consolidation Operations. Even if the non-petitioners succeed to establish their allegation then they can claim share in that land also. But the petitioner cannot be deprived of his right of succession to the properties left by deceased Rampal. The learned Addl. Even if the non-petitioners succeed to establish their allegation then they can claim share in that land also. But the petitioner cannot be deprived of his right of succession to the properties left by deceased Rampal. The learned Addl. Divisional Commissioner failed to consider this aspect of the matter, It is prima facie not established that partition of the property had taken place during the life time of their father and no clear case of division of holding has been set up by the non- petitioners. In these facts and circumstances of the case it cannot be held that mutation proceedings should be stayed till disposal of the regular suit pending in the revenue court. The claim of the non-petitioners that the petitioner Kanhaiya Lal was given separate agriculture land during the life time of their father and on this ground he is not entitled for succession to the other agriculture land left by deceased Rampal can be decided by the competent court before Which suit is pending and final rights of the parties will be decided by the revenue court. The learned Addl. Divisional Commissioner did not examine the merits of the case and simply decided the appeals finally on the sole ground that regular suit is pending between the parties before the competent court and has not passed any order in the appeals either way. Therefore, the impugned judgment cannot be held to be justified. (8). The case law cited by both the parties have also been examined and all cases cited before me are distinguishable on facts. In the case of ``Smt. Jasoda vs. Bhagwan Singh", allowed the appeal and stayed the proceedings of appeal pending before him and did not pass any order either way and the Board of Revenue while allowing the revision-quashed the orders of both the appellate Courts and mutation was kept as it was held, that final decision arrived in the regular suit between the parties in respect of lands in question would prevail and then if necessary mutation will be modified subject to the decision of the revenue court. (9). (9). In the case of ``Tarachand vs. Bihari Lal", it was held that when a regular suit in regard to the same land is pending between the parties in a competent court the decree determining the rights of the parties will be binding on both the parties and the entries in revenue record will be made on the basis of such a decree. (10). On the other hand in the case of ``Smt. Shanti Devi vs. Babu Lal", disputed land was claimed by daughter on expiry of her father and by the adopted son. Suit for declaration and injunction was also pending in the revenue court. In that case mutation was sanctioned in favour of Babu Lal on the claim that he was adopted son of the deceased. In these facts and circumstances of the case the mutation was set-aside and it was directed that mutation entries will need to be made as per decision of the pending suit. (11). The case of ``M/s. Nahar Textile, Sanganer vs. Rajasthan Housing Board", is distinguishable on facts. In that case the land was sold by original khatedar by a registered sale deed to the petitioner and mutation was also sanctioned in; his favour but the land was acquired by the State Government and the award for compensation was also given and on that basis the land was mutated in favour of the Rajasthan Housing Board. Sanctioning of mutation in favour of Housing Board by Asstt. Settlement Officer was challenged in appeal. In these facts and circumstances of the case the order of sanctioning of mutation was set aside and further proceedings in this connection were stayed till conclusion of the civil suit pending in the competent court. (12). Looking to the facts and circumstances of the case and case law discussed above, it is difficult to hold that in a case where regular suit is pending in the competent court the proceedings of mutation should be stayed in each and every case, it depends upon facts and circumstances of each case. In the present case the non-petitioners challenged the mutations after a long period of eighteen years and it is clear that mutations were sanctioned on the basis of inheritance. The petitioner and non-petitioners No. 1 to 3 are real brother and they were entitled for succession to the property left by their father. In the present case the non-petitioners challenged the mutations after a long period of eighteen years and it is clear that mutations were sanctioned on the basis of inheritance. The petitioner and non-petitioners No. 1 to 3 are real brother and they were entitled for succession to the property left by their father. Therefore, Gram Panchayat committed no error in sanctioning the mutations in favour of all four sons of the deceased. The non-petitioners No. 1 to 3 have put a claim which required thorough enquiry and no decision can be given in mutation proceedings regarding the claim made by the non-petitioners. Therefore, pending of a regular suit in the revenue court cannot be a sole ground for setting aside the mutations sanctioned on 5.11.74. If the non petitioners succeed in. the suit pending in the competent court then the Decree determining the rights of the parties will be binding on both the parties and the entries in the revenue record can be made on the basis of such a decree. Therefore, the learned Addl. Divisional Commissioner was not justified in cancelling mutations sanctioned before a couple of years on mere basis that a regular suit is pending in the court. Therefore, the learned Addl. Divisional Commissioner has committed jurisdictional error in allowing the appeals and further setting aside the mutations No. 33, 34 and 35. In view of above discussions these revision petitions are hereby allowed and the judgment passed by Addl. Divisional Commissioner dated 12.5.99 is hereby set-aside. Pronounce in the open court.