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2006 DIGILAW 487 (RAJ)

Mr. Juglal & Anr. Petitioner v. Board of Revenue

2006-02-14

GOVIND MATHUR

body2006
Judgment Govind Mathur, J.-The Judgment dated 112.1989 passed by the learned Board of Revenue, Amjer in Second Appeal No. 156/1983 accepting the second appeal by reversing the Judgment and decree dated 18.07.1981 passed by the Sub Divisional Officer, Rajgarh (Churu) and the Judgment dated 14.02.1983 passed by the Revenue Appellate Authority, Bikaner is subjected to challenge by this petition for writ. 2.In brief the facts of the case are that the respondents Smt. Birma, Sumitra and Roshni preferred a suit before the Court of Assistant Collector, Rajgarh under Section 88 of the Rajasthan Tenancy Act, 1955 (hereinafter to be referred to as the Act of 1955) claiming declaration to be co-tenant and for declaration of their share with the land in dispute. The land in dispute which was in joint Khatedari of the present petitioner and Shri Harphool, husband of Smt. Birma and said to be father of Sumitra and Roshni. 3.Shri Harphool died somewhere in Samvat 2025 and after his death the Khatedari of entire land was entered in favour of the petitioners, which necessitated declaration as claimed by way of filing suit referred above. The suit was dismissed by the Sub Divisional Officer, Rajgarh vide the Judgment dated 18.07.1991 by holding that Smt. Birma entered into Nata with Sh. Molad during the lifetime of Shri Harphool and the plaintiffs Sumitra and Roshni are daughter of Molad and not of Harphool. The plaintiffs-respondents being aggrieved by the Judgment dated 18.07.1981 preferred an appeal before the Revenue Appellate Authority, Bikaner but that too was rejected by the Judgment dated 14.02.1983. The Revenue Appellate Authority affirmed the finding given by the trial Court. A second appeal was filed by the plaintiff -respondents being aggrieved by the Judgment and decree dated 18.07.1981 passed by the Sub Divisional Officer, Rajgarh and the Judgment dated 14.02.1983 passed by the first appellate Court. 4.Learned Board of Revenue by its Judgment 112.1989 accepted the suit and by declaring the plaintiff -respondents as co-khatedar, also declared and ordered for partition of the suit property. The Board of Revenue while reversing the Judgment passed by the trial Court as well as the appellate Court held that the findings given are not based on any evidence. 4.Learned Board of Revenue by its Judgment 112.1989 accepted the suit and by declaring the plaintiff -respondents as co-khatedar, also declared and ordered for partition of the suit property. The Board of Revenue while reversing the Judgment passed by the trial Court as well as the appellate Court held that the findings given are not based on any evidence. The Board of Revenue in quite unambiguous terms held that Smt. Birma in her statements stated that she entered into Nata, with Shri Molad after death of Harphool and the plaintiffs Sumitra and Roshni were alive at the time of death of Shri Harphool and the Courts below erroneously read the evidence available. The Board held that Smt. Birma in her statement nowhere stated that she was living with Molad during the lifetime of Harphool and Sumitra and Roshni are not daughters of Harphool. The Board of Revenue on basis of the statement of Smt. Birma drew presumption that Sumitra and Roshni were daughters of Harphool. 5.Heard the Counsel for the parties. 6.While giving challenge to the Judgment impugned it is stated by learned Counsel for the petitioner that it was not open for the Board of Revenue to re-appreciate the evidence and to reverse concurrent findings given by the two Courts while deciding the second appeal under Section 224 of the Rajasthan Tenancy Act. 7.I do not find any force in the contention raised by the Counsel for the petitioner. The Board of Revenue was aware of its limitations under Section 224 of the Act of 1955, and, therefore, specifically held that the findings given by the trial Court and first appellate Court are perverse being not supported by any evidence. The Board of Revenue also held that whatever evidence discussed by the trial Court and first appellate Court is contrary to the statements of Smt. Birma. It is true that while adjudicating the second appeal under Section 224 of the Act of 1955 in normal course the findings given by the lower Courts based on evidence is not required to be interfered. However, if a finding is not supported by any evidence then such a finding is perverse and it is always open while making judicial review of such finding to look into the evidence. Looking into the evidence and re-appreciation of evidence are two different aspects. However, if a finding is not supported by any evidence then such a finding is perverse and it is always open while making judicial review of such finding to look into the evidence. Looking into the evidence and re-appreciation of evidence are two different aspects. In the present case, the Board of Revenue after going through the evidence available on record reached at the conclusion that the finding given by the trial Court as well as the first appellate Court is not supported by any evidence and as such held the same perverse. The Board has not re-appriciated the evidence but examined findings which are not supported by evidence. The Board of Revenue as such acted well within its jurisdiction while exercising powers under Section 224 of the Act of 1955. 8.The next contention of the Counsel for the petitioner is that the plaintiff-respondent Smt. Birma entered into Nata with Shri Molad before the death of Harphool and the plaintiff -respondents Sumitra and Roshni are daughters of Molad and not of Harphool, therefore, the order passed by the Board of Revenue is illegal. To substantiate the contention, Counsel for the petitioner has read the evidence discussed by the trial Court and the first appellate Court. It is true that the trial Court gave a finding that Sumitra and Roshni were not daughters of Harphool and for that purpose the reliance was placed on the statements of Smt. Birma herself . The statements of Smt. Birma are not placed on record, however, a certified copy of the same available with learned Counsel for the petitioner is read and thoroughly examined by me. Smt. Birma in quite unambiguous terms stated that she was wife of Harphool and Sumitra and Roshni are daughters of Harphool. Smt. Birma in her statements nowhere stated that in the lifetime of Shri Harphool she entered into Nata with Molad and Sumitra and Roshni are daughters of Molad. In fact there is no evidence available to suggest that Smt. Birma went in Nata with Shri Molad prior to death of Harphool, and Sumitra and Roshni are daughters of Molad and not of Harphool. 9.In view of whatever discussed, I do not find any error in the Judgment impugned passed by the Board of Revenue which may warrant interference of this Court under Article 227 of the Constitution of India. The writ petition is accordingly dismissed.