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2009 DIGILAW 1772 (RAJ)

Hangami v. Sodara

2009-08-06

A.K.PUROHIT, G.K.TIWARI

body2009
PUROHIT, M.—This is a second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 against the judgment and decree dated 20.2.06 of Revenue Appellate Authority Ajmer passed in appeal No. 24/05/223. 2. Briefly stated, the facts leading to the second appeal are that the respondent No. 1 filed a suit under Sections 88, 89 and 188 of the Act before Sub-Divisional Officer Kekri (Ajmer) for declaration of Khatedari rights in respect of the disputed land. The trial Court decreed the suit by its judgment dated 9.5.05; aggrieved against which the appellant-defendant filed first appeal under Section 223 of the Act before Revenue Appellate Authority Ajmer who by the impugned judgment dated 20.2.06 dismissed the appeal and upheld the judgment and decree dated 9.5.05 of the trial Court. Hence the second appeal. 3. During pendency of this second appeal, the appellant filed two applications, one under Order 41 Rule 27 read with Section 151 of the Civil Procedure Code (C.P.C.) for taking on record jamabandi Svt. 2060-63 and a leaf of old account book (Bahi). Another application filed by the appellant is under Order 1 Rule 10 of the C.P.C. for impleading State Bank of India Khawas as one of the respondents. 4. We have heard learned counsels of both the parties. 5. The learned counsel for the appellant has contended that the trial Court has passed the decree dated 9.5.05 on the condition that the entry in revenue record would not be changed pursuant to the decree until the entire mortgage amount is paid to the concerned bank; as such bank becomes a necessary party and should be impleaded as a respondent under Order 1 Rule 10 of the CPC for which a separate application is filed. The learned counsel also pressed for taking on record a leaf (paga) from an old Bahi (Account book) allegedly belonging to deceased khatedar Nanda to prove the point that the deceased Kana- the husband of the appellant- was living with him as a sole successor. A copy of jamabandi Svt. 2060-63 is also sought to be taken on record to show change of the entry in compliance of the decree of the trial Court. It is further pleaded that the original khatedar- the deceased Nanda-adopted Kana (deceased) husband of the appellant defendant during his lifetime. Kana also wrote a document filed as Ex. A copy of jamabandi Svt. 2060-63 is also sought to be taken on record to show change of the entry in compliance of the decree of the trial Court. It is further pleaded that the original khatedar- the deceased Nanda-adopted Kana (deceased) husband of the appellant defendant during his lifetime. Kana also wrote a document filed as Ex. D. 1 which shows that Nanda had given the disputed land to Kana during his lifetime. It is further argued that Kana carried out the last rites after death of Nanda. Oral evidence also confirmed that Kana was in the regular service to Nanda and as such was entitled to succeed to the disputed land of Nanda. The respondent-plaintiff never challenged mutation No. 282 of Village Farkiya by which the disputed land was mutated in the name of Kana after death of Nanda. Thereafter on the death of Kana another mutation No. 40 dated 5.6.95 was attested in favour of Hangami, the appellant-defendant and thus Hangami became khatedar tenant of the disputed land. These mutations, always remained unchallenged so the respondent-plaintiff is not entitled to conferment of any khatedari right in the disputed land, as such both the impugned judgments of the Courts below should be set aside. 6. Vehemently countering the argument of the appellant, the learned counsel for the respondent pleaded that the disputed land stood in the khatedari right of Nanda who was father of the respondent-plaintiff Sodra. The deceased Nanda had no other successor except his daughter Sodra, the plaintiff-respondent. So after the death of father Nanda, Mutation should have been attested in favour of his daughter Sodara and non Kana who was none to the deceased Nanda. Nanda never adopted Kana as his son. The alleged document Ex. D. 1) purported to be will or document showing intention ¼bPNk i=½ is neither of the two. This document Ex. D-1 is on a plain paper which is torn and incomplete. It is simply a part of letter which is not proved in evidence by its scribe or any of its attesting witnesses. If it is purported to be will it should have been proved by at least one of the attesting witnesses to the document, as held in 1995 DNJ (Raj.) 367 and 426, 1995 DNJ (SC) 502. On the basis of this torn piece of paper khatedari right did not accrue. If it is purported to be will it should have been proved by at least one of the attesting witnesses to the document, as held in 1995 DNJ (Raj.) 367 and 426, 1995 DNJ (SC) 502. On the basis of this torn piece of paper khatedari right did not accrue. It was also contended that the application under Order 41Rule 27 of the C.P.C. should not be allowed as the page from the old 'bahi' is not necessary to resolve the matter in controversy. Similarly, copy of jamabandi Svt. 2060-63 is irrelevant in this case. It was also argued that the application under Order 1 Rule 10 of the CPC should not be allowed as Bank is not a necessary party in view of the fact that no relief is sought against the Bank which was not a party in the courts below. Concurrent findings of fact of both the lower courts should not be interfered as held in 2008(2) DNJ (Raj.) 102 and 1998 RBJ 10. 7. We have given thoughtful consideration to the rival contentions of the learned counsels, pursued the impugned judgment and gone through the record available on the file. 8. As far as applications under Order 41 Rule 27 of the CPC is concerned, the appellant intends to take on record a page from the old Bahi allegedly belonging to the deceased Nanda. Perusal of this document shows that it is a leaf (page) of an old account book (Bahi) showing certain entries on credit and debit sides indicating certain entries of financial transactions carried out by the deceased Nanda. This page of an old 'Bahi' is not at all instrumental in resolving the matter in controversy which pertains to conferment of khatedari rights between the rival claimants. Another document which is a copy of jamabandi Svt. 2060-63 shows change of entry consequent upon the judgment and decree of the trial Court which was upheld by the first appellate Court. This is a subsequent entry in revenue record which is not helpful in deciding this dispute, and as such it is irrelevant document. As far as another application under Order 1 Rule 10 of the CPC for impleading the SBI Khawas is concerned, no relief is sought against the State Bank of India. The State Bank of India itself has not come forward for becoming a party. As far as another application under Order 1 Rule 10 of the CPC for impleading the SBI Khawas is concerned, no relief is sought against the State Bank of India. The State Bank of India itself has not come forward for becoming a party. The plea of non-joinder of party was neither raised before the trial Court nor before the first appellate Court; as such this plea cannot be allowed at the second appellate stage. Resultantly, both the applications under Order 41 Rule 27 of the CPC and Order 1 Rule 10 of the CPC are rejected. 9. Admittedly, the disputed land stood in the khatedari right of the deceased Nanda. The respondent-plaintiff is daughter of Nanda (deceased). After death of Nanda the disputed land was mutated in favour of Kana showing him as son of Nanda but the mutation No. 282 does not make any reference to any document or evidence which supports contention that Kana was son of Nanda. The mutation does not even state that Kana was an adopted son to Nanda. This mutation was carried out on 16.6.1992 when daughter of Nanda, Sodra was also alive butno opportunity of hearing seems to have been given to Sodra before attesting of the mutation. This is also clear that this mutation was not challenged by Sodra. Perusal of Ex. D. 1 shows that by another mutation No. 40 attested on 5.6.1995, the disputed land was mutated in favour of Mst. Hangami showing her as widow of Nanda after death of Kana. Surprisingly in Ex. D.1 Hangami is shown as widow of Nanda and not as widow of Kana. Copy of Khasra girdawari Ex. D. 3 also shown as wife of Kana. The oral evidence of Hangami, D.W. 1 clearly states that she is wife of deceased Kana. It shows that mutation No. 40 dated 5.6.1995 was casually and irresponsibly carried out as such it cannot be lent credence. However, subsequently the daughter of the deceased khatedar Nanda filed a regular revenue suit for declaration of khatedari rights. 10. The sole ground upon which Kana (deceased) claimed right in the disputed land as successor to the deceased Nanda was that he was an adopted son. This factum of adoption has neither been proved by documentary evidence nor oral evidence. The document Ex. D. 1 excessively relied upon by the appellant is non-descript document which is torn and incomplete. 10. The sole ground upon which Kana (deceased) claimed right in the disputed land as successor to the deceased Nanda was that he was an adopted son. This factum of adoption has neither been proved by documentary evidence nor oral evidence. The document Ex. D. 1 excessively relied upon by the appellant is non-descript document which is torn and incomplete. The appellant sometimes says it is a will, sometimes says it is a document showing intention of the khatedar (bPNk i=) , but a bare perusal of the document Ex. D.1 reveals that it is neither. It has not been proved by any of the attesting witnesses to the document or by its scribe. The contention of the appellant-defendant that Kana was in personal service of Nanda and carried out the last rites after the death of Nanda, do not entitle him to become an adopted son; and as such it does not confer any khatedari right on this count. On the contrary Sodra, the respondent-plaintiff is a daughter of the deceased khatedar Nanda and is entitled to succeed to the disputed land; but her right and claim were ignored and Kana was made khatedar illegally. The trial Court framed seven issues which have been appropriately discussed and decided in light of the oral and documentary evidence adduced. The respondent-plaintiff had been successful in proving her case and as such the trial Court rightly decreed the suit which has been correctly upheld by the impugned judgment of Revenue Appellate Authority Ajmer. There are concurrent findings of facts in the concurrent judgments of both the lower Courts. No interference can be made in concurrent judgments of the Courts in the second appeal as held in 2008 DNJ (2) Raj. 102 and 1998 RBJ 10. 11. In view of the foregoing discussions, we do not find any infirmity or illegality in the concurrent judgments of both the Courts below and as such the impugned judgment dated 20.2.06 of Revenue Appellate Authority Ajmer does not warrant any interference in the second appeal. 12. In the result the appeal fails and it is dismissed accordingly.