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2008 DIGILAW 981 (RAJ)

Nenga v. Board of Revenue, Ajmer

2008-04-04

MOHAMMAD RAFIQ

body2008
Honble , J.—This writ petition is directed against the judgments of the Board of Revenue dated 21.12.2001, Revenue Appellate Authority, Kota dated 17.06.1997 and the Sub-Divisional Officer, Baran dated 18.04.1993. The dispute is with regard to land comprising in khasra Nos. 238, 344, 2719, 2225, 2726, 2743, 2789, 2742 & 2141 measuring 4.90 hectares situated in revenue village Badwa, Tehsil Anta, District Baran. Revenue suit filed by the petitioner under Section 183 of the Rajasthan Tenancy Act was dismissed by the learned court of SDO on the ground that the same was barred by the limitation having been filed twelve years after the date the respondent no. 4 declared his possession over the disputed land adverse to the petitioner. Before however, the merits of the case are adverted, the background giving rise to the said revenue suit need to be noticed first. Land in dispute was originally recorded in the name of the petitioner Nenga. It was mutated in the name of the contesting respondent. on 24.03.1987 by Assistant Settlement Officer. The petitioner challenged the order of mutation before the Settlement Officer who vide his order dated 10.04.1989 set aside the mutation. Appeal filed by the respondent No. 4 against the said order of Settlement Officer was also dismissed by Settlement Commissioner on 04.12.1989. Respondent No. 4 yet again filed an application before the. Tehsildar, Mangrole for again getting the mutation of the said land attested in his favour, claiming that he was adopted son of the petitioner. The Tehsildar rejected the application vide order dated 18.06.1991 and thereafter, his appeal filed before SDO, Baran was also dismissed on 24.02.1993 . Then the matter was brought before Additional Divisional Commissioner on appeal preferred by respondent no. .4. By order dated 24.08.1993, Additional Divisional Commissioner upheld the orders passed by the Tehsildar and SDO. He however observed that so far question of possession is concerned it would be open to the petitioner to seek eviction of the respondent No.4 only by due process of law. This is how the petitioner filed the revenue suit giving rise to the present litigation on 26.05.1993. When this writ petition was pending, the sole petitioner Nenga died on 15.05.2002. Two applications filed by the contesting parties herein, for their impleadment as his legal representative. This is how the petitioner filed the revenue suit giving rise to the present litigation on 26.05.1993. When this writ petition was pending, the sole petitioner Nenga died on 15.05.2002. Two applications filed by the contesting parties herein, for their impleadment as his legal representative. While the applicant Jai Singh filed such application on the basis of the Will said to have been executed by deceased Nenga in his favour, another application was filed by the respondent No. 4 on the basis of adoption. Both . the parties contested the case of one another. In that situation, this Court by order dated 23.02.2007 directed that the applicant Jai Singh is permitted to substitute the petitioner Nenga as petitioner only for the limited purpose of continuing this petition. Although, question as who is the real heir of the petitioner Nenga was kept open. In the meantime, it is brought to the notice of the Court that the applicant Jai Singh applied for grant of probate before the Court of District Judge, Baran. The District Judge, Baran as by his order dated 31.10.2007 has granted probate in favour of the applicant Jai Singh, certified copy of which is placed on record. Learned counsel for the respondent, however, informed that the said order of learned District Judge is also subject matter of challenging appeal. It would be appropriate to observe at this stage that the issue as to who shall be entitled to inherit the properties of the original-petitioner Nenga would be governed by whatever decision is rendered by this Court in appeal said to have been filed by the respondent. 3. This petition in the above background is therefore, being decided only with a view to pronouncing upon the validity and correctness of the orders impugned herein. 4. I have heard Mr. Devendra Raghava and Mr. R.K. Goyal, learned counsel for the petitioner and Mr. S.S. Hora, learned counsel for the respondent No. 4 and perused the impugned orders. 5. Learned counsel for the petitioners, Shri Devendra Raghava and Shri R.K. Goyal argued that the learned SDO. seriously erred in law in rejecting the suit as time barred, whereas, on the own showing of the respondent No. 4 he came in possession of the disputed property in the year 1979 as a licensee of the plaintiff-petitioner Nenga. 5. Learned counsel for the petitioners, Shri Devendra Raghava and Shri R.K. Goyal argued that the learned SDO. seriously erred in law in rejecting the suit as time barred, whereas, on the own showing of the respondent No. 4 he came in possession of the disputed property in the year 1979 as a licensee of the plaintiff-petitioner Nenga. It was argued that the respondent No. 4 was posted as peon in a Government School situated in a village Badwa and the petitioner-Nenga merely permitted him to live in his house. At that stage land in dispute was given to him by Nenga for cultivation on the basis of sharing of crop. Taking undue benefit of that situation, respondent No. 4 illegally got mutation of the land attested in his favour on 24.03.1987. The petitioner filed appeal before the Settlement Officer, however, when the record of the case was summoned, the relevant file of the Assistant Settlement Officer in which the mutation was attested in favour of the respondent No. 4 was found missing. Tehsildar therefore rightly rejected subsequent application filed by the respondent holding that in the life-time of original-petitioner Nenga, the land recorded, in his name could not be mutated in favour of anybody including the respondent No.. 4. It was argued that when the dispute with regard to mutation started from 1987 and at any rate from 10.04.1989 when appeal was filed by the petitioner against the said mutation, the possession of the respondent no. 4 could not be held to be adverse to the original petitioner for more than twelve years. Even if the limitation is taken to have started to run from year 1979, and the said appeal filed on. 10.04.1989 filing of the suit in the year 1994 could not have been rejected as being barred by period of limitation. It was argued that the respondent no. 4 never filed any revenue suit/civil suit of his own to claim any right in the land in dispute on the basis of so called adoption which was all along-being disputed by the original-petitioner. It was argued that the respondent no. 4 never filed any revenue suit/civil suit of his own to claim any right in the land in dispute on the basis of so called adoption which was all along-being disputed by the original-petitioner. Learned courts below have erred in law partly allowing the claim of the petitioner on the basis of entries in Ration Card and Voters List while at the same time ignoring the fact that in the second appeal filed by the respondent before the Settlement Commissioner which was decided on 04.12.1989, he declared name of his father as Madho Lal. Attention of the Court, in this connection was invited to certified copy of the order passed by the Settlement Commissioner. Learned counsel argued that Revenue Appellate Authority committed a serious error of law in making out an altogether new case for the respondent by holding that he would be on the strength of alleged adoption entitled to at least half of the land in dispute whereas, neither any other suit was filed by the respondent nor did he file any cross objection in the original suit, let alone finding in cross appeal. 6. Learned counsel argued that this court in consideration of all these facts vide its order dated 05". 04.2002 had appointed Tehsildar, Aanta as receiver on the disputed agricultural land who has been since then continuing as such. It was therefore, prayed that the impugned judgment, especially the later two judgments, to the extent of awarding half the land to the respondent No. 4 be set aside and a revenue suit in respect of remaining half of the land be decreed in favour of the petitioner. 7. Mr. S.S. Hora, learned counsel for respondent No. 4 however, contested the writ petition and argued that even if the respondent has not filed any suit of his own, he can nevertheless defend his possession on the strength of his adoption made by the petitioner. It was argued that this fact has been proved in all the courts below and there is finding of all the courts recorded on, the basis of Ration Card, Revenue Receipts, Voter List and Marriage Card that the respondent No. 4 was adopted, son. of the petitioner. This fact of adoption coupled with the fact that the respondent no. It was argued that this fact has been proved in all the courts below and there is finding of all the courts recorded on, the basis of Ration Card, Revenue Receipts, Voter List and Marriage Card that the respondent No. 4 was adopted, son. of the petitioner. This fact of adoption coupled with the fact that the respondent no. 4 was admittedly in possession of the disputed property rightly persuaded Revenue Appellate Authority and the Board of Revenue to allow at least half the land in favour of the respondent No. 4. 8. It was, argued that the petitioner never set up the case that the land in dispute was given in possession of the respondent, on the basis, of sharing of crop. Their case was that it was forceably taken possession of by the respondent no. 4. He argued that the respondent, who is in possession of the land since 1979, cannot be now forced to part with such possession. It was argued that the petitioner filed the revenue suit in the year 1983 and therefore, starting from the year 1979 such suit was admittedly filed beyond the period of twelve years. Learned Court of SDO did not commit any error of law in rejecting the suit as barred by limitation. 9. Shri S.S. Hora further argued that the indication of parentage of the respondent no. 4 by the name of Madho lal in the title of appeal filed before the Settlement Commissioner would be inconsequential because the respondent has all alone been maintaining that he was taken in adoption by the original petitioner and this fact is borne out even from the order of Tehsildar dated 18.06.1991. He further argued that at one stage of time even the petitioner had also given in writing that he had taken the respondent in adoption and the land was. recorded in . the name of the respondent no. 4 on that basis. However, that document was caused to disappear from record at the instance of present applicant Jai Singh. Learned counsel argued that the respondent no. 4 did not challenge the order passed by the Revenue Appellate Authority and Board of Revenue to the extent they were decided against him only because he considered himself as adopted son of the petitioner thinking that eventually such land, was bound to come to him. 10. Learned counsel argued that the respondent no. 4 did not challenge the order passed by the Revenue Appellate Authority and Board of Revenue to the extent they were decided against him only because he considered himself as adopted son of the petitioner thinking that eventually such land, was bound to come to him. 10. I have given thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the impugned orders. It is a dispute with regard to the land of someone who is no more while the applicant Jai Singh who is now claiming the land asserts that the said lands have been bequeathed to him by original petitioner. The respondent no. 4 on the other hand claims that he being adopted son of the original petitioner was entitled to inherit of the properties left by him. Interestingly enough, the dispute started even during the life-time of the petitioner when respondent no. 4 got the land mutated in his name on 24.03.1987. It is not clear as to what was the basis for that mutation attested in favour of the respondent no. 4 but eventually that mutation was cancelled in appeal filed by the original petitioner by Settlement Officer vide order dated 10.04.1989. His order was maintained by the Settlement Commissioner while dismissing appeal of the respondent No.4. Yet another series of litigation was started at the instance of respondent no. 4 who thereafter also remained unsuccessful consequently before the Tehsildar, SDO and Additional District Commissioner. Now all the three orders passed respectively by SDO, Revenue Appellate Authority and Board of Revenue are subject matter of challenge. The petitioner wants the order of the Board of Revenue and the Revenue Appellate Authority to be maintained to the extent they go in his favour but now incidentally the original petitioner is represented by the applicant Jai Singh who claims to have been given all these land in the Will left by him. It is evident from the order of SDO, that the SDO has even though made some discussion on some of the other issues but primarily he dismissed the suit on the ground of it being barred by limitation thus refusing to grant any relief to the petitioner. It is evident from the order of SDO, that the SDO has even though made some discussion on some of the other issues but primarily he dismissed the suit on the ground of it being barred by limitation thus refusing to grant any relief to the petitioner. But the Revenue Appellate Authority further decided the matter proceeding entirely on the case of adoption set up by the respondent without in the least examining validity of the findings recorded by the SDO that the suit was time barred. Board of Revenue has in substance maintained the order of Revenue Appellate Authority where if granted half of the land to the respondent no. 4 accepting his claim of adoption. Neither of the two superior courts therefore adverted to examining the correctness, of the decision of the first court that suit was barred by limitation. If the suit in the first instance was barred by limitation, that was one such issue which should have received the first and foremost consideration of the courts below. On the basis of material that has come on record, it is evident that even though the suit for claiming possession was filed by the petitioner against the respondent no, 4 on 26.05.1993, but he had been contesting the matter with the respondent no. 4 right since 1989 when he for the first time filed appeal against the order of mutation. Starting from the year 1979, therefore, the contest the dispute by him with the respondent no. 4 was very much alive before revenue courts. In the background of the case, therefore, the decision of the SDO in dismissing the suit as barred by limitation could not be justified. While perusing judgment of the SDO, I further find that the findings recorded on other issue also have not been satisfactorily recorded by it in as much as the issues in the matter have not been framed. The learned Revenue Appellate Authority, and the learned Board of Revenue have also not examine the matter on other point decided by the SDO including on the point of limitation. 11. In my considered view, therefore, the matter requires consideration on merit afresh by the first court and the order of the superior courts straightway granting half the shares -to both the parties cannot be sustained. 11. In my considered view, therefore, the matter requires consideration on merit afresh by the first court and the order of the superior courts straightway granting half the shares -to both the parties cannot be sustained. While therefore, setting aside the orders passed by Board of Revenue dated 21.12.2001, Revenue Appellate Authority, Kota dated 17.06.1997 and the Sub-Divisional Officer, Baran dated... 18.04.1993, I remit the matter back to the court of Sub-Divisional Officer, Anta for deciding it afresh on merits. During the pendency of the revenue suit, the Receiver as originally appointed by this Court on 05.04.2002, shall continue to function as such. 12. Accordingly the writ petition is allowed in part. There shall be no order as to costs.