Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 1715 (RAJ)

Pema v. Panna Mohd.

2005-07-06

GOPAL KRISHAN

body2005
Judgment N.N. Mathur, J.-On the request of the learned Counsel for the parties, the special appeal is taken for final hearing at the admission stage. This special appeal is directed against the order of the learned Single Judge dated 112.2002, whereby the learned Judge allowed the writ petition and set aside the order of the Board of Revenue. 2. The case has a chequered history. For the convenience the pedegree of the family of Deva recorded Khatedar of the subject land is as under:- Deva (1939) I I I I Wife-I Mst. Sangari I I I I Wife-II Mst. Champa I Sold to Khuda Bux I I Panna Mohd. (Respondent) Sri Krishan I I I I Pema (Appellant) I I I I I Pratapa Rupa I I Bhima (Appellant) The appellants grand father namely Deva was Bapidar (owner) of Khasra Nos. 151, 167, 168, 169 measuring 14 Bighas 4 Biswas land (New numbers 198, 199, 299, 213, 214 & 216) alongwith other agricultural land. Appellants father Shri Krishna was from Devas first wife namely Smt. Sangari and two sons namely Pratapa and Rupa from the second wife Smt. Champa. Deva separated his son Shri Krishna during his life time in the year 1934. The land fallen in his share was entered in the revenue record. Deva remained joined with his second wife Smt. Champa and other sons Pratapa and Rupa. He died in the year 1939. It is averred that the agricultural land belonging to him was mutated in the name of Rupa and Pratapa. Rupa died leaving behind no legal representatives except his mother Champa and brother Pratapa. It is further averred that Mst. Champa the natural guardian of minor Pratapa by a registered sale-deed transferred the subject land to one Khuda Bux in the year 1948. On the basis of the said transfer the name of khuda Bux was entered in the revenue record in place of Pratapa and Rupa. It is further averred that Khuda Bux gave the subject land to one Uda and Moti for cultivation. It is alleged that the said cultivators joined hands with Shri Krishan to take over possession of the agricultural land from them. 3. Khuda Bux filed an application under Section 50 of the Revenue Act No. V of Udaipur State on 28th March, 1951 for restoration of possession. It is alleged that the said cultivators joined hands with Shri Krishan to take over possession of the agricultural land from them. 3. Khuda Bux filed an application under Section 50 of the Revenue Act No. V of Udaipur State on 28th March, 1951 for restoration of possession. The said application was dismissed by the order of the SDO, Rajsamand dated 28th March, 1951. The appeal against the said order was dismissed by order of the Additional Commissioner, Udaipur dated 09.02.1951. In second appeal the Board of Revenue by order dated 16.01.1952 remitted the matter to the Additional Commissioner with a direction to reconsider the entire matter after looking into the original record particularly the mutation proceedings. The learned Additonal Commissiner, Udaipur held that if the plaintiff Khuda Bux has any claim on the basis of the sale-deed, he may vindicate his right before a civil Court. In view of the finding, the learned Additional Commissioner dismissed the appeal by order dated 26th February, 1953. The said order was affirmed in second appeal by the order of the Board of Revenue dated 11.02.1954. Thus, the plaintiff Khuda Bux filed a civil suit in the Court of Munsif , Rajsamand on 13.07.1954 for declaration of his title on the subject land. The Munsif held that the sale in favour of Khuda Bux was void as Smt. Champa could not have sold the subject land on behalf of the minor in view of Section 52 of the Mewar Act. However, the decision of the Munsif was reversed in appeal by the Judgment of the Civil Judge dated 26th April, 1957. In the opinion of the appellate Court the sale could be voidable not void at the instance of Khuda Bux. But Pratapa has rectified the sale after attaining the majority. In view of the finding the learned appellant Court decreed the suit and ordered to restore the possession of the subject land. The defendant Shri Krishan preferred a second appeal before this Court. The appeal was decided ex parte on 2nd March, 1960. This Court held that the suit was not cognizable by a civil Court in view of Section 7 of the Rajasthan Revenue Courts Procedure and jurisdiction Act, 1951. This Court instead of returning the suit for presentation before the appropriate Court dismissed the same. The appeal was decided ex parte on 2nd March, 1960. This Court held that the suit was not cognizable by a civil Court in view of Section 7 of the Rajasthan Revenue Courts Procedure and jurisdiction Act, 1951. This Court instead of returning the suit for presentation before the appropriate Court dismissed the same. Thus, the plaintiff again filed a suit in the revenue Court namely SDO, Rajsamand for declaration and injunction under Section 88, 91, 92-A, 188 of the Rajasthan Tenancy Act. The SDO found the suit barred by the principle of res judicata as the issue with respect to possession was decided in earlier revenue proceedings under Section 50 of the Mewar Revenue Courts Act. Thus, the plaintiff filed an appeal before the Revenue Appellate Authority, Udaipur, which came to be dismissed by Judgment dated 30th May, 1963. The plaintiff preferred a second appeal, wherein the Board of Revenue held that the principle of res judicata was not attracted in the instant case and as such remanded the matter to the Court of SDO by Judgment dated 11.08.1969. The learned SDO, Rajsamand again dismissed the suit by Judgment dated 05.01.1978 holding that the subject sale was void. The said Judgment was set aside by Judgment dated 03.05.1983 in appeal by the Revenue Appellate Authority. The present appellants preferred an appeal against the said Judgment before the Board of Revenue. The Board of Revenue by Judgment dated 24th May, 1990 allowed the appeal and set aside the Judgment of the Revenue Appellate Authority and directed to decide the appeal on merits. The Revenue Appellate Authority after hearing the parties dismissed the appeal on the ground that the plaintiff failed to prove that after execution of the sale-deed, he entered in possession over the subject land. It was further held that plaintiff had no case, the subject sale was found to be void by the civil Court. An appeal against the Judgment of the Revenue Appellate Authority dated 14.06.1991 was preferred before the Board of Revenue, which came to be dismissed by order dated 08.04.1992. The decision of the Board of Revenue was challenged before this Court. The learned Single Judge held that the sale-deed executed by Mst. Champa in favour of Khuda Bux was valid to the extent of her share and share of Pratapa and Rupa. The decision of the Board of Revenue was challenged before this Court. The learned Single Judge held that the sale-deed executed by Mst. Champa in favour of Khuda Bux was valid to the extent of her share and share of Pratapa and Rupa. It was also found that during the life time Deva in coparcenary property, Deva was having 1/4th share alongwith three sons Srikishan, Pratap and Rupa. Upon death of Deva his 1/4th share could have equally devolved upon three sons and his widow Champa. Therefore, share of Champa in the property is 1/16th share and that of Srikrishan, Pratap and Rupa is ¼th + 1/16th = 5/16th each. 4. We have heard the learned Counsel for the parties. It is submitted by the learned Counsel for the appellants that the non-petitioner Pratap expired on 1st March, 2002 and the Non-petitioner No. 3 Rama expired on 13.05.1995. Similarly non-petitioner No. 4 Deva S/o Laxman expired on 10.06.1998 and Non-petitioner No. 5 Bhana expired on 26.06.2001. Their legal representatives were not brought on record during pendency of the writ petition and as such the petition ought to have been dismissed by the learned Single Judge as abated. It is further submitted that the learned Judge failed to consider that the respondents were never remained in possession over the land in question. As such the proceedings for the recovery of possession was barred by limitation. On the other hand the learned Counsel for the respondents has supported the Judgment of the learned Single Judge. 5. We have heard the learned Counsel for the parties. We are of the view that the instant special appeal deserves to be allowed on the short point that the learned Single Judge having found that the civil Court had no jurisdiction to decide the matter in controversy, which related to agricultural land ought to have, without entering into the other issues, remitted the matter to the original revenue Court. It is not in dispute that in second appeal filed by the appellants father Sri Krishan this Court vide order dated 2nd March, 1960 held that the civil Court had no jurisdiction with regard to the matter pertaining to declaration and possession of the agricultural land. It is not in dispute that in second appeal filed by the appellants father Sri Krishan this Court vide order dated 2nd March, 1960 held that the civil Court had no jurisdiction with regard to the matter pertaining to declaration and possession of the agricultural land. Once the High Court allowed the second appeal filed by the appellants father on the ground of jurisdiction as indicated above, the revenue Courts completely misguided in recording finding on the basis of the Judgment of the Munsif in which the sale-deed was held to be void. The learned Single Judge has rightly observed that at the most for cancellation of the sale-deed a suit could have been filed in the civil Court. But no such was filed by Shri krishan or any of the vendors. The learned Single Judge further rightly observed that purchaser Khuda Bux went to the civil Court not for cancellation of the sale-deed but for declaration and possession. Thus, the finding of the revenue Courts are vitiated having proceeded on the basis of the decision of the civil Court holding the subject sale transaction as void. Thus, in these circumstances the learned Single Judge ought to have remitted the entire matter to revenue Court in bottom instead of deciding certain issues on his own. 6. Consequently, the instant appeal is allowed. The order of the learned Single Judge as well as the order of the Board of Revenue and the Revenue Appellate Authority are set aside. The matter will go back to the Court of SDO, Rajsamand. He shall decide the matter afresh ignoring the finding of the civil Court on the question of sale-deed. As the Judgment of the learned Single Judge has been set aside, any observation made therein will have no reflection on the merit of the case. The learned SDO, Rajsamand is directed to decide the matter in accordance with law.