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Rajasthan High Court · body

2009 DIGILAW 294 (RAJ)

Prem Singh v. Padam Singh

2009-01-30

G.K.TIWARI, ROHIT KUMAR SINGH

body2009
Judgment SINGH, M.—This is appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the judgment dated 20.1.07 of Revenue Appellate Authority Nagaur passed in appeal No. 145/2000. 2. The factual matrix arising out of the case is that respondent No. 1 plaintiff filed a suit under Section 88 and 188 of the Act against the appellant-defendant in the court of Assistant Collector Ladnu who by his judgment dated 26.11.06 dismissed the suit aggrieved against which first appeal under section 223 of the Act was filed before Revenue Appellate Authority Nagaur who allowed the appeal and declared respondent No. 1 plaintiff as khatedar tenant by his judgment dated 20.1.07. The appellant-defendant has preferred this second appeal against the impugned judgment dated 20.1.07 of Revenue Appellate Authority. 3. We have heard the learned counsel of both the parties. 4. The learned counsel for the appellant has argued that Assistant Collector Ladnu has dismissed the suit as it was proved in the Court but Revenue Appellate Authority illegally allowed the appeal without affording opportunity of hearing to the appellant (respondent therein). The appellant lives in Jaipur but notices in his name were sent to village Dholiya in Nagaur District where he does not live. Thereafter without court's order substituted service was made in presence of an interested person who was also witness for the plaintiff in the main suit. This was all done malafidely and no proper service was deliberately made on the appellant-defendant; and illegal ex-parte orders were made by both the Courts which are pre-se unlawful. It was argued that the original khatedar tenant of the disputed land Badan Singh gifted the suit land through a registered gift deed on 9.5.1972 in pursuance of which mutation No. 59 was attested on 27.7.1972 in favour of the appellant-defendant. This, the appellant-defendant became khatedar tenant of the suit land. Badan Singh died in the year 1985. Thereafter widow of Badan Singh, Mohan Kanwar adopted Padam Singh, the respondent, as son through registered adoption deed on 17.7.02. Thus, the respondent Padam Singh does not become entitled to khatedari right of the disputed land which was already gifted by the original khatedar through registered gift deed way back in the year 1972. Thereafter widow of Badan Singh, Mohan Kanwar adopted Padam Singh, the respondent, as son through registered adoption deed on 17.7.02. Thus, the respondent Padam Singh does not become entitled to khatedari right of the disputed land which was already gifted by the original khatedar through registered gift deed way back in the year 1972. It was contended that the copy of the mutation order dated 27.7.1972 was not enclosed by the respondent-plaintiff, so to straighten the record the appellant-defendant has produced a copy of the mutation No. 59 which was commented upon by both the lower courts without even looking into it. The learned counsel cited 2005 RBJ 29, 2002 (19) RBJ 524 and 2002 (9) RBJ 480 to press the point that substituted service can be made only by an express order of the court as per the procedure prescribed under the law and not otherwise. The appellant prayed for dismissal of the impugned judgment of Revenue Appellate Authority. 5. Opposing the contentions of the appellant, the learned counsel for the respondent argued that the suit land is located in village Dholiya of district Nagaur as such notice for service on the appellant-defendant was sent at Dholiya address so there is nothing illegal in effecting substituted service when appellant-defendant is not available at the given address. It was also contended that no efforts were made by the appellant-defendant for setting aside ex-parte decree issued against him. The adoption deed executed in favour of the respondent-plaintiff is admitted by the appellant-defendant and on the basis of this adoption deed the respondent-plaintiff has acquired khatedari right, so there is nothing illegal when Revenue Appellate Authority declared respondent as khatedar tenant of the disputed land, setting aside the judgment of the trial Court. It is also argued that a copy of mutation No. 59 cannot be taken on record at this stage as it is not presented in keeping with the provisions of Order 41 Rule 27 of the Civil Procedure Code. 6. We have given thoughtful consideration to the rival contentions, carefully gone through the impugned judgments of both the lower courts and perused the record available on the file. 7. 6. We have given thoughtful consideration to the rival contentions, carefully gone through the impugned judgments of both the lower courts and perused the record available on the file. 7. Admittedly, the disputed lands bearing khasra No. 541 measuring 48 bighas 11 biswa and khasra No. 588 measuring 4 bighas 2 biswas, interlia, were recorded in the name of Badan Singh as a khatedar tenant who had executed a registered gift deed on 9.5.1972 in favour of the appellant-defendant Prem Singh in pursuance of which mutation No. 59 was attested by Gram Panchayat on 27.7.1972. Interestingly this mutation No. 59 has been commented upon by both the lower courts without looking into the same as it was not put up on record until the appellant enclosed it along with the second appeal filed in this court. We are not inclined to agree with the learned counsel for the respondent that a certified copy of this mutation No. 59 cannot be looked into now in view of the fact that both the lower courts have already discussed and adjudicated upon it without even having a glace at it. We deem it just and proper to take it on record peruse the same in the interest of justice. A bare perusal of the mutation No. 59 makes it abundantly clear that the disputed land already stood mutated in the name of Prem Singh, the appellant-defendant, way back on 27.7.1972 through a registered gift deed which remained unchallenged hitherto. Consequent upon this mutation the appellant-defendant figures as khatedar tenant of the disputed land currently. 8. It is contended that the respondent plaintiff was taken in adoption as a son through a registered adoption deed executed on 17.2.02. On the date of registered adoption deed the original khatedar Badan Singh was no more alive; he died in the year 1985. The appellant-defendant has not denied adoption deed; but on the basis of this adoption deed which was executed on 17.2.02 the respondent-plaintiff does not become entitled to be a khatedar tenant of the land which already stood transferred and mutated through registered gift deed in the year 1972. By virtue of adoption deed of year 2002 the respondent-plaintiff becomes entitled to inherit whatever land or property belongs to widow of Badan Singh- Mohan Kanwar who took him in adoption, with effect from the date of adoption. By virtue of adoption deed of year 2002 the respondent-plaintiff becomes entitled to inherit whatever land or property belongs to widow of Badan Singh- Mohan Kanwar who took him in adoption, with effect from the date of adoption. It is, therefore, obvious that this adoption deed of 2002 does not have retrospective application and it does not annual the registered gift deed executed in the year 1972 until it is set aside by a competent civil court. 9. Strangely Revenue Appellate Authority in his impugned judgment has taken a bizarre inference that absence of the respondent tantamounts to his tacit admission of the suit, without even bothering to look into the sufficiency of the service on the appellant-defendant (respondent therein). Revenue Appellate Authority did not look into the matter of proper service of notice on the appellant-defendant (respondent therein) who does not live at the given address but lives at Jaipur where notice was not sent. Thus, appellant was denied opportunity of hearing in disregard of principle of natural justice. 10. Perusal of cryptic and sketchy judgment of Revenue Appellate Authority shows that he has not looked into the legality and applicability of the gift deed of the year 1972 vis-a-vis adoption deed of the year 2002 and declared respondent-plaintiff as khatedar tenant of the disputed land on the basis of adoption deed executed in the year 2002 completely disregarding the registered gift deed executed in respect of the same land in the year 1972. Thus we cannot land support of the judgment of Revenue Appellate Authority Nagaur. 11. Resultantly the appeal succeeds and it is allowed. The judgment dated 20.1.2007 of Revenue Appellate Authority Nagaur is dismissed and the judgment dated 26.11.06 of Sub-Divisional Officer Ladnu is upheld.