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2006 DIGILAW 1639 (RAJ)

Narayan v. State of Raj.

2006-05-11

S.K.RATHORE

body2006
Honble RATHORE, J.—This writ petition is preferred against the concurrent finding given by the Assistant Collector, Revenue Appellate Authority and Board of Revenue vide judgments dated 9.12.1970, 21.7.1972 and 28.5.1986 respectively. 2. Here in this writ petition the main challenge of the petitioners is that the question of adoption can only be decided by the Civil Court and thus the revenue Court has seriously erred to adjudicate such dispute while deciding the suit for partition u/Ss. 53 and 188 of the Rajasthan Tenancy Act. 3. Brief facts of the case are that Ram Chandra and Gopi filed a suit for partition and permanent injunction on 18.3.1958 before the Assistant Collector, Jaipur. The land in question being ancestral property of Shri Lachchu and Seva having half portion of each and there is no dispute in respect of half share of Lachu and his descendants. Laxman, Ramu and Sunda are co-sharer and they admit the claim of plaintiffs Ram Chandra & Gopi. 4. The suit was decreed in favour of the respondent and upheld by the Revenue Appellate Authority and Board of Revenue by giving concurrent finding against the petitioner. 5. The petitioners only emphasized on the issue whether the Respondent No. 4 Ram Chandra is adoptive son of Gyarsa or not. And this issue can only be decided by the Civil Court and in support of his submissions he referred a case of Manraj vs. Rameshwar (1969 RLW 507) wherein this Court has held as under:- It is true that the question of adoption can be decided by a revenue Court when it is necessary for the purpose of deciding a suit based on a cause of action for which a suit in Revenue Court is the only appropriate remedy. Thus, in the case of Chimna vs. The Board of Revenue, the suit was for a right which could be claimed only in a revenue Court, while in Jagannath vs. Balwant, the only dispute was regarding the nature of the tenancy and adoption was incidental issue. It cannot, therefore, avail the learned Counsel for the appellants to argue merely that there are decisions to the effect that a question of adoption can also be validly decided by a revenue Court. 6. Learned Counsel for the petitioners further relied on the judgment rendered by Honble the Supreme Court in the case Bank of Baroda vs. Moti Bhai & Ors. 6. Learned Counsel for the petitioners further relied on the judgment rendered by Honble the Supreme Court in the case Bank of Baroda vs. Moti Bhai & Ors. (1985 (1) WLN 272 (SO) wherein Honble the Supreme Court has held as under: "On the question of jurisdiction, one must always have regard to the substance of the matter and not to the form of the suit. If the matter is approached from that point of view, it would be clear that, primarily and basically, the suit filed by the Bank is one for recovering the amounts which is due to it from the respondents on the basis of the promissory note executed by Respondent No. 1 and the guarantee given by Respondents 2 and 3. The relief sought by the Bank is that the suit should be decreed for the repayment of the amount due from the respondents" - 7. He also relied upon the judgment of Full Court of this Court in the case "Badri Lal vs. Moda (1979 RRD 624) wherein Fun Court observed that: "For the purpose of seeing whether the suit is exclusively triable by Revenue Court and the Civil Court has no jurisdiction to try the same, averments in the plaint are carefully to be looked into. All the allegations made in the plaint should be taken into consideration and not the relief alone claimed in the plaint for the purpose of determining the question of jurisdiction. The substance of the plaint provides a good guide to find out the true nature of the object of the suit." 8. Per contra, learned Counsel appearing for the respondents submitted that the co-tenants have admitted the factum of adoption and suit for partition and permanent injunction was filed by Respondent No. 4 Ram Chandra and Gopi u/Ss. 53 and 188 of the Rajasthan Tenancy Act. Jodhas descendants Bhura also admit the pedigree and the share. Similarly, defendant Narain admitted the fact Nondas adopted son Hira but do not accept Ram Chandra as adopted son of Gyarasa in the line of Nonda. 9. 53 and 188 of the Rajasthan Tenancy Act. Jodhas descendants Bhura also admit the pedigree and the share. Similarly, defendant Narain admitted the fact Nondas adopted son Hira but do not accept Ram Chandra as adopted son of Gyarasa in the line of Nonda. 9. Learned Counsel for the Respondents referred the statement of Sona (Annexure-C) as under:- ^^X;kjlk us jkepUnz dks xksn fy;kA 14-15 lky gks x;kA mldks xksn fy;s gq;s gks x;kA xksih us xksn iq= jkepUnz dks cukus ds fy;s xksn fn;k FkkA xksih dh tk;nkn esa jkepUnz dk fgLlk ugha jgkA eSa ekStwn FkhA uUnk lkB lky igys ej x;kA** 10. Similarly statement of Gopi (father of Ram Chandra) is submitted as Annexure-D which is reproduced as under- ^^X;kjlk esjk yM+dk gS X;kjlk tks ghjk dk yM+dk gS mlus esjs yM+ds jkepUnz dks xksn fy;kA xksn laor~ 2006 ¼in the year 1949 A.D.½ dh lky esa gqvk FkkA 15-16 lky gks x;sA ukfj;y irkks ckaV dj viuh xksn esa fcBk dj fy;k FkkA mldks eSaus yM+dk xksn ysus ds fy;s fn;k FkkA mlus xksn ysuk eatwj dj fy;k] esjh tk;nkn esa mldk fgLlk ugha gSA** 11. The respondents also referred Sec. 207 which reads as under: Sec.207 Suit and applications cognizable by revenue Court only (1) All suits and applications of the nature specified in the Third Schedule shall be heard and determined by Revenue Court. (2) No Court other than a revenue Court shall take cognizance of any such shit or application or of a any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. Explanation.—If the cause of action is one in respect of which relief might be granted by the revenue Court, it is immaterial that the relief asked for from the Civil Court is grater than, or additional to, or is not identical with, that which the revenue Court have granted." 12. After referring the provisions of Sec. 207, the respondents placed reliance on the judgment rendered by Honble the Supreme Court in the case "Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayak Gosavi & Ors., (AIR 1960 Supreme Court 100) and a judgment of this Court in case Chimna vs. The Board of Revenue (DB Civil Misc. Writ Petition No. 15/1995 and a judgment reported in AIR 1959 Supreme Court 57). 13. Writ Petition No. 15/1995 and a judgment reported in AIR 1959 Supreme Court 57). 13. After giving thoughtful consideration to the rival submissions of the respective parties and upon careful perusal of the relevant provisions of law as well as the judgments referred by each party, as held by the Full Bench of this Court, it is necessary to see the plaint and the averment made in the plaint for the purpose of determining the question of jurisdiction. Here, in the plaint, it is clearly indicated that being adopted son, Respondent No. 4 is not asking for his share but asking to determine the question of adoption and on the question of adoption he is asking for share. Therefore, the question of adoption is incidental issue and not main issue. Therefore, the judgments referred by the petitioner do not favour the petitioners contention. The adoption being incidental issue, the revenue Court having jurisdiction to hear the matter of partition and the concurrent finding given by all the Courts below is absolutely in accordance with law and no illegality or error apparent on the face of the record is found. As such, in view of the observation made by Full Bench of this Court, the petitioners are not able to make out any case in their favour which requires any interference by this Court. 14. Consequently, the writ petition fails and is hereby dismissed.