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2008 DIGILAW 856 (RAJ)

L. Rs. of Chimna Ram v. State of Raj.

2008-03-24

M.N.BHANDARI, NARAYAN ROY

body2008
Honble ROY, CJ.—This appeal is directed against the order passed by the learned Single Judge of this Court in S.B. Civil Writ Petition No. 4459/1997 whereby and where under the writ petition of the petitioner-appellant was dismissed. 2. Brief facts of the case are that the respondent No. 5 Bhanwar Lal filed a suit for possession in regard to Khasra Nos. 630, 631 and 632. The precise claim in regard to those lands were made on the basis of the fact that the land aforesaid was belonging to his father Jeevan and one Balu in equal share and during the lifetime of Jeevan, Balu had surrendered his 1/2 share to his father Jeevan. Based on aforesaid claim, plaintiff-respondent Bhanwar Lal claimed possession of the aforesaid land. The first Court vide its judgment dated 2.9.1981 partially decreed the suit in favour of plaintiff Bhanwar Lal and it was held that so far as Balu is concerned, he is having 1/2 share in the total land and out of remaining land, 1/4 share belong to plaintiff Bhanwar Lal and 1/4 share to Chimna Ram. 3. Aggrieved by the said order, Chimna Ram as well as Bhanwar Lal preferred appeals before the Revenue Appellate Authority. However, Revenue Appellate Authority dismissed both the appeals. 4. Aggrieved by the judgment of Revenue Appellate Authority, plaintiff Bhanwar Lal preferred second appeal before the Board of Revenue, Ajmer. The Board of Revenue vide its judgment dated 29.8.1997 held that so far as the judgments passed by the original Court as well as Revenue Appellate Authority are concerned, same cannot be maintained to the extent of making declaration of 1/4 share in favour of Chimna Ram. It was held that the land in question was of the Khatedari of Jeevan and Balu in equal share and Chimna Ram was having no right in the land in dispute, therefore 1/4 share cannot go to Chimna Ram and thereby both the orders passed by the Courts below were set aside and it was held that the plaintiff Bhanwar Lal is entitled for 1/2 share of the total land. 5. Aggrieved by the judgment of the Board of Revenue, petitioner-appellant preferred writ petition. The writ petition so preferred was then dismissed by the learned Single Judge precisely on the ground that the petitioner-appellant claimed right in the land in dispute through his father Mangu. 5. Aggrieved by the judgment of the Board of Revenue, petitioner-appellant preferred writ petition. The writ petition so preferred was then dismissed by the learned Single Judge precisely on the ground that the petitioner-appellant claimed right in the land in dispute through his father Mangu. However, the right of Mangu could not be proved and thereby in absence of any right and title of the father of the petitioner, the petitioner has no right in the land. Thus, maintaining the judgment of revenue Court, the writ petition of the petitioner-appellant was dismissed. 6. Learned Counsel for the appellant submits that the land in dispute was a Joint Hindu Family property of Jeevan and Chimna Ram therefore 1/2 of the share should have come to Chimna Ram being brother of Jeevan in whose name the property was existing. The second ground taken is that the Board of Revenue has reversed the finding of fact of the two Courts below while hearing the second appeal. Thus, order of the Board of Revenue was beyond its jurisdiction as it could have decided only a question of law. 7. It is further submitted that the issue No. 2 decided by the original Court is not proper and thus needs to be reversed, inasmuch as the plaintiff Bhanwar Lal went in adoption but this fact has wrongly been decided by the original Court and lastly, it is submitted that the appellant had submitted sufficient documentary evidence in the shape of Girdawari yet without discussing this part, the Board of Revenue decided the appeal against the appellant. 8. Learned counsel for the respondent submits that the land in question was never a Joint Hindu Family properly; rather it was existing in the name of plaintiffs father Jeevan and one Balu and thereby Chimna Ram was never in picture in revenue record, therefore the Board of Revenue has rightly decided this issue in favour of the plaintiff Bhanwar Lal. 9. It was further contended that so far as issue pertaining to adoption is concerned, it was not challenged by Chimna by filing a second appeal before the Board of Revenue and even before the learned Single Judge also, the original judgment dated 2.9.1981 is not even under challenge. 9. It was further contended that so far as issue pertaining to adoption is concerned, it was not challenged by Chimna by filing a second appeal before the Board of Revenue and even before the learned Single Judge also, the original judgment dated 2.9.1981 is not even under challenge. It was further submitted that so far as production of document in the shape of Girdawari is concerned, that was taken into consideration by the Board of Revenue and necessary discussion existed at pages 4 and 5 of the impugned order passed by the Board of Revenue. The contention of the learned counsel for the respondents is thus that appeal preferred by the appellant is devoid of merit and otherwise this Court while exercising jurisdiction under Article 227 of the Constitution of India should not go in the factual aspect as has been held by the Honble Apex Court. 10. We have considered the rival submissions of the counsel for the parties and scanned the matter carefully. 11. The learned Board of Revenue has considered each and every factual aspect of the matter and taking into consideration that the land in dispute was recorded in the name of Jeevan, father of plaintiff Bhanwar Lal and Balu in equal share and the land has never been shown to be Khatedari of Chimna Ram, and merely for the reason that in Girdawari, name of Chimna and Jeevan were shown, a right cannot be claimed on the basis of Girdawari itself. 12. It is further a fact that so far as issue of adoption is concerned, it was decided against the appellant by the revenue Court on 2.9.1981. The judgment aforesaid was then challenged before the Revenue Appellate Authority where the appeal of the present appellant was dismissed and thereafter no further appeal was filed by the present appellant against the said order. Thus, it becomes clear that so far as issue regarding adoption is concerned, it has not been challenged by the appellant either before the Board of Revenue or before the learned Single Judge. Therefore, the said issue cannot be taken before us in special appeal, as it remained unchallenged before the Courts below. 13. So far as the scope of second appeal is concerned, the second appeal before the Board of Revenue is as per the provisions of Rajasthan Land Revenue Act and not under the provisions of CPC. Therefore, the said issue cannot be taken before us in special appeal, as it remained unchallenged before the Courts below. 13. So far as the scope of second appeal is concerned, the second appeal before the Board of Revenue is as per the provisions of Rajasthan Land Revenue Act and not under the provisions of CPC. Thus, the Revenue Board hears the matter as an appellate Court in view of the jurisdiction given not under the provisions of CPC but under the Rajasthan Land Revenue Act. Hence, the scope and the jurisdiction of the Revenue Board cannot be made limited as otherwise exist under the provisions of CPC. The learned Single Judge has otherwise considered the aspect that the appellant claimed right in the land in dispute through his father Mangu and as the right and title in favour of Mangu could not be established; therefore he has not right in the land in dispute. The learned counsel for the appellant fairly conceded that land in question never existed in the name of Mangu i.e. his father. 14. In view of the above, we do not find any error in the order passed by the Board of Revenue as well as the order passed by the learned Single Judge. This appeal is thus, devoid of merit, hence same is dismissed with no order as to costs.