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2006 DIGILAW 2672 (RAJ)

Ganesh v. State of Raj.

2006-09-06

SHIV KUMAR SHARMA

body2006
Honble SHARMA, J.—The prayer of the petitioner in instant writ petition is as under:— (i) to quash the judgment of Board of Revenue for Rajasthan Ajmer dated January 1, 1998 (Annexure-8). (ii) to dismiss the suit filed by plaintiff respondent No.3. (iii) to declare that the defendant petitioner had been rightly adjudged as adopted son of deceased Panna and he is adopted son of deceased Bala and Panna and that 54 bighas 16 biswa of land of village Nimoda Tehsil Keshavrai Patan continuing in his sole, exclusive, peaceful and uninterrupted khatedari and possession since April 13, 1968 and that he has acquired title in disputed respondents No.3 and defendant respondent No.4 have no connection with the same. 2. Contextual facts depict that on August 31, 1985 plaintiff respondent No.3 filed a suit for declaration and division of holdings under Section 88, 89 and 53 of Rajasthan Tenancy act, 1955 (for short, `1955 Act) in the court of Assistant Collector, Bundi with the averments that lands comprised in 9 khasras measuring 126 bighas 16 biswas were situated in village Nimoda Tehsil Keshavari Patan. The suit lands were of joint khatedari and possession of plaintiff and his two brothers namely defendant petitioner Ganesh and defendant respondent No.4 Surjya. All the 3 co-sharers had equal shares in suit lands. The plaintiff mentioned pedigree of the family and contended that Bala was common ancestor of parties, who had only one son Sewa and the defendants and plaintiff are sons of Sewa. It was alleged that during the last settlement the defendant petitioner without the knowledge and consent of plaintiff illegally and unauthorisedly without any order of competent authority secretly entered half share of petitioner Ganesh in order to put the plaintiff to a loss and thus separate khata of all the three co-sharers had been constituted in revenue records, which was liable to be cancelled. The plaintiff stated that defendant petitioner Ganesh did not have half share in the suit lands and plaintiff Madilal, Ganesh and Surjya had equal shares according to which the share of each co-sharer was only 1/3rd in he suit lands. The plaintiff stated that defendant petitioner Ganesh did not have half share in the suit lands and plaintiff Madilal, Ganesh and Surjya had equal shares according to which the share of each co-sharer was only 1/3rd in he suit lands. The plaintiff contended that no division of their holdings had taken place between them as a result of which disputes started arising and the plaintiff had become entitled to get the entries made by Settlement Department declared as wrong and illegal and to get the share of each co-sharer declared as 1/3rd in the suit lands. Since the petitioner Ganesh was bent upon selling lands khasra No.244/1 measuring 10 bighas 4 biswa out of suit land to defendant Mohan after obtaining sanction from Collector Bundi therefore Mohan was also impleaded as defendant to the suit. Declaration was sought that the entry of half share in favour of petitioner Ganesh was wrong and illegal and plaintiff and defendants respondents No.3 and 4 be declared as having equal share. Decree for division of suit land was prayed and 1/3rd share of plaintiff be separated. On service defendant respondent No.4 Surjya filed written statement and admitted the facts of the plaint. Since respondents No.1 and 5 did not appear despite service ex-parte proceedings were ordered to be taken against them. The petitioner filed written statement and stated that the lands of khasra No.244/1 measuring 10 bigha 4 biswa, 269/1 measuring 4 bigha 15 biswa, 317 measuring 5 biswa, 344 measuring 10 biswa, 436 measuring 15 bigha 13 biswa and 437 measuring 22 bigha 15 biswa were of the sole khatedari of petitioner. he specifically denied that the suit lands were of khatedari and possession of the parties. the petitioner stated that he had half share in the suit lands and plaintiff respondent No.3 and defendant respondent No.4 had jointly half share in the suit land. he further stated that the disputed lands were of khatedari of Bala and Panna sons of Chatara. Bala had one son Sewa and Sewa had 3 sons. Out of 3 sons Sewa and his wife placed petitioner Ganesh in the lap of Panna as his adopted son, 45 years back, on the date of Basant Panchami. Panna accepted petitioner Ganesh as his adopted son. At the time of adoption Ganesh was only 8 or 9 years of age and the wife of Panna was not surviving. Out of 3 sons Sewa and his wife placed petitioner Ganesh in the lap of Panna as his adopted son, 45 years back, on the date of Basant Panchami. Panna accepted petitioner Ganesh as his adopted son. At the time of adoption Ganesh was only 8 or 9 years of age and the wife of Panna was not surviving. The petitioner denying the pedigree of plaintiff mentioned other pedigree of the family showing Chatara as father of Bala and Panna as common ancestor of parties. The allegation of collusion in settlement department was denied and claimed the entries to be correct. He also contended that he was in possession of the land for the last 17 years and he was sole owner of the same. The petitioner also pleaded that a settlement took place between the parties on Miti Chet Sudin Punam Svt. 2025 according to which the lands mentioned in para 2 of written statement had come to the share of petitioner, since then the petitioner was continuing in possession of the same. 3. On the basis of the pleadings of parties four issues were framed and after hearing the arguments the issues were decided in favour of the petitioner resultantly the suit was dismissed vide judgment dated September 2, 1989. The appeal filed by the plaintiff came to be dismissed vide judgment dated March 30, 1995 by Revenue Appellate Authority Kota. Thereafter the second appeal preferred by the plaintiff before the Board of Revenue was allowed on January 1, 1998 and the suit of plaintiff was decreed. The appeal was accepted on the assumption that the defendant petitioner had not obtained any declaration about his adoption to Panna from competent court therefore he was entitled to get 1/3rd share in the disputed land. Hence, the instant writ petition. 4. Learned counsel for the petitioner contended that since both the courts below concurrently held that the defendant petitioner had been adopted to deceased Panna and the disputed land were in the sole exclusive, peaceful and uninterrupted possession of petitioner for a long time no interference was called for in second appeal which could be filed only if the decision of the lower appellate Court was in variance of the decision of trial Court. 5. 5. Having closely scanned the material on record, I notice that the Board of Revenue in the judgment dated January 1, 1998 observed in para 6 as under: ^^orZeku izdj.k esa ;g lkfcr gS fd Hkw-izcU/k foHkkx }kjk fcuk fdlh l{ke U;k;ky; ds vknsk ds tekcanh ds bUnzktksa esa ifjorZu fd;k x;k gSA ,slk ekuuk mfpr gksxk fd jsLiksaMsaV }kjk xksn ds vk/kkj ij Lo;a dk fgLlk 1@2 ntZ djkus ds fy, fdlh l{ke U;k;ky; esa dk;Zokgh ugha dh gS rFkk Hkw izcU/k foHkkx }kjk fu;e fo:) rjhds ls jsLiksaMsaV dk fgLlk 1@3 ds LFkku ij 1@2 fgLlk ntZ dj fn;k gSA ;fn jsLiksaMsaV ;g ekurk gS fd mldk fookfnr Hkwfe esa xksn ds vk/kkj ij 1@2 fgLlk curk gS rks mls l{ke U;k;ky; esa vf/kdkjksa dh ?kks"k.kk dk okn izLrqr djuk pkfg, ysfdu jsLiksaMsaV }kjk ,slk ugha fd;k x;k gS rFkk tc rd jsLiksaMsaV ds i{k esa xksn ds vk/kkj ij 1@2 fgLls dh vf/kdkjksa dh ?kks"k.kk dh vkKk iznku ugha dh tkrh gS rc rd mldk fookfnr Hkwfe esa fgLlk 1@3 gh jgrk gS tSlk fd tekcanh laor~ 2015 ls 2018 o tekcanh laor~ 2019 ls 2022 esa ntZ gSA 6. In my opinion the aforequoted observations could not have made while disposing of the second appeal filed under Section 224(2) Rajasthan Tenancy Act, 1955. Second appeal under this section could be filed under the following circumstances: (i) decision being contrary to law or the usage having force of law; (ii) decision having failed to determine some material issue of law or usage the force of law; (iii) a substantial error or defect in the procedure provided by or under this act or by any other law for the time being in force, which may possibly have produced an error or defect in the decision of the case upon the merit; and (iv) the decision being contrary to the weight of evidence on record where the lower appellate court has varied or reversed any finding of the trial Court on a question of fact. 7. 7. In the instant matter learned Assistant Collector No.1 Bundi as well as Revenue Appellate Authority, Kota had concurrently held after discussing in detail the oral and documentary evidence led by the parties that the petitioner had been given in adoption to Panna and the disputed lands were in the sole, exclusive, peaceful and uninterrupted possession of the petitioner since April 13, 1968 thereafter the petitioner had acquired title by adverse possession over the said land. Concurrent findings of facts arrived at by two courts below could not have been interfered within the second appeal by the Board of Revenue. Their Lordship of the Supreme Court in Kondiba Dagadu Kadam vs. Savitri Sopan Gujar (1999) 3 SCC 722 , propounded that concurrent findings of facts howsoever erroneous could not be disturbed in second appeal. 8. For these reasons, I allow the writ petition and set aside the order January 1, 1998 of Board of Revenue. The suit filed by the plaintiffs stands dismissed. There shall be no order as to costs.