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2010 DIGILAW 174 (RAJ)

Gulab Singh v. Ummed Singh

2010-01-20

G.K.TIWARI, TARA CHAND SAHARAN

body2010
TIWARI, M.—The above mentioned two second appeals filed under Section 224 of the Rajasthan Tenancy Act, 1955 (in short 'the Act') are taken together for decision through a common judgment in view of the fact that they are directed against a common judgment dated 17.11.2009 of Revenue Appellate Authority, Nagaur who has decided two appeals (first) jointly, as parties to the suit are the same involving the same disputed land. A copy of the judgment should be placed in each of the case file separately. 2. Briefly stated, the facts leading to the second appeals are that the respondent-plaintiff had filed a suit under Sections 88, 89 and 188 of the Act for grant of khatedari rights as well as ejectment of the defendants-appellants of the appeal No. 9253/09 in the Court of Assistant Collector (S.D.O.), Nagaur who allowed the suit by his judgment and decree dated 3.6.2009 which was challenged by the appellants before Revenue Appellate Authority, Nagaur through two different appeals preferred under Section 223 of the Act; whereupon Revenue Appellate Authority decided these two appeals through a common judgment dated 17.11.2009 by which both the first appeals were dismissed. Aggrieved against the impugned judgment dated 17.11.2009 of Revenue Appellate Authority, the appellants have preferred these two second appeals under Section 224 of the Act before this Court. 3. We have heard the learned counsels of all the parties. 4. The learned counsel for the appellants of appeal No. 9253/09 has contended that the disputed lands located in village Kadlu of Nagaur District belonged to the ex-jagirdar Daulat Singh (deceased) who is survived by five sons Gulab Singh, Guman Singh, Himmat Singh, Prem Singh (Appellants) and Ummed Singh (respondent). With resumption of jagir on 1.8.1954, late Daulat Singh, became khatedar tenant of the entire khudkasht lands recorded in his name. Thus, Daulat Singh was a khatedar tenant of the disputed lands. Daulat Singh died on 30.11.1962. After death of the khatedar Daulat Singh, the disputed lands were mutated in the names of all the five brothers through succession. Thus, all the brothers became equal co-tenants of the disputed lands. Thus, Daulat Singh was a khatedar tenant of the disputed lands. Daulat Singh died on 30.11.1962. After death of the khatedar Daulat Singh, the disputed lands were mutated in the names of all the five brothers through succession. Thus, all the brothers became equal co-tenants of the disputed lands. But one of the brothers Ummed Singh filed a suit before Sub-Divisional Officer, Nagaur for declaration of khatedari rights in respect of the entire disputed lands, and ejectment of the appellants from the suit lands on the ground that he, was the eldest son of the ex-jagirdar Daulat Singh and as such was entitled to succeed to his entire jagir lands by law of primogeniture. Assistant Collector (Sub-Divisional Officer). Nagaur illegally decreed the suit by his judgment dated 3.6.2009. The law of primogeniture is no longer in existence. All the jagirs were resumed on 1.8.1954. After this resumption the ex-jagirdar died on 30.11.1962 when Hindu Succession Act, 1956 had already come into force. Succession of Daulat Singh (deceased) is governed under the provisions of Section 8 of the Hindu Succession Act, according to which all the first class heirs are entitled to succeed to the disputed lands of the deceased khatedar who had died intestate; but the Trial Court as well as Revenue Appellate Authority overlooked this legal provision and allowed the suit on erroneous assumption of law of primogeniture. The learned counsel cited 1983 RLW 475 in support of his contention. It was also contended that since the jagir was resumed the impartible character of the disputed lands was lost and it had become a joint family property subject to the provisions of Hindu Succession Act, 1959 (sic. 1956) and the Rajasthan Tenancy Act of devolution of tenancy rights after death of the deceased khatedar. The learned counsel cited AIR 1982 (SC) 887 , 2001(2) RRT 1078, AIR 1991 (SC) 1973 to support his plea. It was contended that though the trial Court had framed seven issues yet all the issues were not decided separately; so the judgment of the trial Court is not according to the provisions of Order 20, Rule 5 of the Civil Procedure Code (C.P.C.). It was contended that though the trial Court had framed seven issues yet all the issues were not decided separately; so the judgment of the trial Court is not according to the provisions of Order 20, Rule 5 of the Civil Procedure Code (C.P.C.). the Trial Court has illegally held that the respondent-plaintiff was the exclusive coparcener of the disputed lands and as such entitled to succeed to the entire land of the deceased khatedar on the basis of the survivorship; but this finding and conclusion of Trial Court as well as Revenue Appellate Authority is wrong and illegal, as deceased Daulat Singh was a recorded khatedar who has five living sons and other daughters who are equally entitled to succeed to the lands of the deceased khatedar. In fact the respondent-plaintiff never lived in the village, so there was no question of any encroachment being made by the appellants-defendants on the disputed lands to which they are legally entitled to inherit after the death of their father. It is also erroneously held by both the lower Courts that the appellants-defendants were given their separate shares in the jagir lands and as such division of the jagir lands was effected during the lifetime of the ex-jagirdar Daulat Singh. This is baseless averment made by the respondent-plaintiff which has not been proved and substantiated by any evidence. The Trial Court as well as Revenue Appellate Authority have wrongly relied upon the non-existent provisions of Sections 182 and 195 of the Marwar Land Revenue Act, 1949 which is no longer in existence after coming into force of the Rajasthan Tenancy Act, 1955. It is also contended that though the Jagir Commissioner has issued a succession certificate in favour of the respondent-plaintiff due to which he obtained the jagir compensation; but this does not disentitle the appelalnts-defendants from succession of the khatedari lands of the ex-jagirdar. The learned counsel for the appellants further pleaded that the appellants were minor at the time of alleged assigning of the jagir lands. So it cannot be said that such lands were individually given to the appellants. The learned counsel for the appellants prayed for acceptance of the appeal with quashing of the concurrent judgment of both the lowers Courts. 5. So it cannot be said that such lands were individually given to the appellants. The learned counsel for the appellants prayed for acceptance of the appeal with quashing of the concurrent judgment of both the lowers Courts. 5. Vehemently countering the contentions of the appellants, the learned, counsel for the respondent submitted that the disputed lands were jagir lands of the ex-jagirdar Daulat Singh of jagir Kadlu (Nagaur). As under the Old Hindu Law only eldest son of a jagirdar was entitled to succeed to the jagir lands and properties, the ex-jagirdar Daulat Singh assisgned certain part of his jagir lands as specified in the plaint to the appellants-defendants in keeping with the provisions of Section 195 of the then Marwar Land Revenue Act, 1949. Thus all the younger brothers (appellants) got their shares of lands in Svt. 2008-09 itself; this was entered and reflected in the different revenue record of the period. This fact of assigning of the parts of jagir lands to the appellants has duly been proved through oral and documentary evidence of Ex.9 to Ex.17. The ex-jagirdar had done so keeping in mind the provisions of Section 182 of the Marwar Land Revenue Act, 1949 according to which succession in respect of the jagir lands was governed by the rule of primogeniture. The respondent-plaintiff being the eldest son and entitled to the rule of primogeniture was not given any separate share in the jagir lands by ex-jagirdar Daulat Singh because ultimately he was to succeed to his lands after his death. But now strangely all the other sons (appellants) are claiming right and interest in the lands of plaintiff-respondent, having already obtained and availed of all the lands assigned to them by the deceased Daulat Singh. It was also contended that the Jagir Commissioners has issued a succession certificate (Ex.-20) in favour of the respondent-plaintiff according to which the respondent plaintiff was entitled to succeed to the jagir lands, properties and compensation. This judgment dated 30.11.1962 of Jagir Commissioner remains unchallenged so far. The judgment of Jagir Commissioner shows that other brothers were given jagir lands separately and as such the plaintiff-respondent is the sole successor of the ex-jagirdar for jagir compensation. Thus the finding on this issue in one proceeding would operate as res-judicata as also estopple in subsequent proceeding would operate as res-judicata as also estopple in subsequent proceedings as is held in. Thus the finding on this issue in one proceeding would operate as res-judicata as also estopple in subsequent proceeding would operate as res-judicata as also estopple in subsequent proceedings as is held in. AIR 2009 (NOC) 2150 (Kar.). It is also pleaded that the judgment of the Trial Court is given issuewise. Only inter-related issues No. 1,2 and 7 are decided jointly, this is not in contravention of provisions of Order 20 Rule 5 of the C.P.C. Citing 1991 AIR (SC) 1972 it was contended that the disputed lands were impartible estate of ex-jagirdar and the respondent-plaintiff is the sole heir of these jagir lands by survivorship. The contention of the appellants that they were minor at the time of assigning jagir lands is also untenable now in view of the fact that they never gave up ownership of the lands after having become majors. The learned counsel cited AIR 2004 (SC) 1257 in support of his contention. It is pleaded that both the lower Courts have given concurrent findings and judgment which should not be interfered with in the second appeal as are held in 1999 DNJ (SC) 464, 2000 DNJ (Raj.) 751, 2002 DNJ (Raj.) 879 and 2009 RRT 1394. 6. The learned counsel for the appellants of the appeal No. 9254/09 contended that the appellants Mohan Kanwar. Manohar Kanwar and Kishan Kanwar are the daughters of the deceased Daulat Singh; but they were not impleaded in the suit filed by the respondent-plaintiff in respect of the lands of Daulat Singh, in the Court of Sub-Divisional Officer, Nagaur. The Appellants had filed an application under Order 1 Rule 10 of the CPC for becoming party to the suit, which was rejected by the Trial Court and the revision against which was also dismissed by the Board of Revenue. Subsequently, an appeal was filed before Revenue Appellate Authority against the impugned judgment of the Trial Court along with an application under Section 96 of the CPC which was also rejected by the Revenue Appellate Authority; hence this second appeal is preferred in the Board of Revenue. Subsequently, an appeal was filed before Revenue Appellate Authority against the impugned judgment of the Trial Court along with an application under Section 96 of the CPC which was also rejected by the Revenue Appellate Authority; hence this second appeal is preferred in the Board of Revenue. It was contended that although a separate suit filed by the appellants is still pending before the trial Court of Sub-Divisional Officer, Nagaur; but any judgment in respect of the disputed lands given by the higher Courts like Revenue Appellate Authority and Board of Revenue would adversely affect the decision of the suit pending before the Trial Court. As such it is necessary that the appellants be impleaded and heard and their rights and interest in the disputed lands should be decided on merits. 7. Opposing the contentions of the appellants, the learned counsel for the respondent pleaded that the Trial Court has already rejected the application filed under Order 1, Rule 10 of the CPC and this order of Trial Court was upheld upto the Board of Revenue. Not only this, an application under Section 96 of the CPC was also rejected by the Revenue Appellate Authority; as such this second appeal by the appellants is not competent as are held in 1993 RRD 568 and 1989 RRD 292. It was also pleaded that when a regular suit filed by the appellants is still pending before the Trial Court, the appellants cannot appeal against the judgment and decree in another case as is held in 1989 RRD 748. It was also contended that the daughters were not entitled for declaration of any share in the disputed jagir lands of ex-jagirdar before coming into force of the Hindu Succession Act, 1956. The learned counsel cited 1997 RBJ 324, 2006 RRT 1085 and 1332 (HC). The learned counsel for the respondent pleaded for dismissal of the appeal at the stage of admission only. 8. We have given thoughtful consideration to the rival contentions, perused the impugned judgments of both the lower Courts and gone through the case file. 9. Admittedly, the disputed lands belonged to late Daulat Singh who was the ex-jagirdar of Kadlu in Nagaur District. Rival parties to the appeals are brothers and sisters being sons and daughters of the deceased Jagirdar Daulat Singh. 9. Admittedly, the disputed lands belonged to late Daulat Singh who was the ex-jagirdar of Kadlu in Nagaur District. Rival parties to the appeals are brothers and sisters being sons and daughters of the deceased Jagirdar Daulat Singh. The main dispute and the matter in controversy is whether the respondent-plaintiff alone is entitled to succeed to the disputed lands of the deceased Daulat Singh, the ex-jagirdar or not. In a suit filed by the respondent-plaintiff in respect of the disputed lands the Trial Court of Sub-Divisional Officer, Nagaur framed seven issues. Issues No.l, 2 and 7 being similar in nature were decided jointly by the Trial Court. The issue No.l is whether the law of primogeniture was operative at the time of death of the ex-jagirdar Daulat Singh and as such the eldest son (respondent-plaintiff) was the sole successor to the deceased Daulat Singh. The issue No.2 is about whether the ex-jagirdar Daulat Singh had assigned certain specified parts of his jagir lands to other sons (appellants) who took away their shares and consequently the respondent-plaintiff remained the only coparcener of the disputed lands which stood in the name of the ex-jagirdar through survivorship; and the issue No.7 is whether the ex-jagirdar Daulat Singh had effected division of his jagir lands prior to resumption of jagir and the appellants-defendants were separately given shares in their names; but the respondent-plaintiff was not given any share because he was ultimately to inherit the jagir property of ex-jagirdar Daulat Singh, as such the plaintiff remained sole successor to the Daulat Singh after his death. Evidently all these three issues are inter-related and similar in nature so they have been decided together by the Trial Court. The Trial Court has based his decision on these issues taking into consideration oral evidence of witness P.W.-l Patwari Ramdev, P.W.-2 Ballu, P.W.-3 Bhagirath (Ex-Sarpanch) and P.W.-4 Arjun Singh and documentary evidence- exhibits Ex.-l and Ex.-20. The most significant evidence in this regard is that of the witness Ramdev (P.W.-l) who was Patwari of the village where the disputed lands are located from Svt. 2012 to 2018. He has substantiated the fact that the ex-jagirdar Daulat Singh has assigned and divided his jagir lands among his younger sons (appellants-defendants).-He had also prepared jamabandis of the period Svt. 2012 to 2018 according to the division so made by the ex-jagirdar. Jamabandis Svt. 2012 to 2018. He has substantiated the fact that the ex-jagirdar Daulat Singh has assigned and divided his jagir lands among his younger sons (appellants-defendants).-He had also prepared jamabandis of the period Svt. 2012 to 2018 according to the division so made by the ex-jagirdar. Jamabandis Svt. 2010 to 2018 (Ex.7 to Ex.17) also prove such division made by the ex-jagirdar among .his younger sons to the exclusion of the respondent-plantiff. This has further been corroborated by other witnesses like P.W.-3 Bhagirath (Ex-Sarpanch), P.W.-2 Ballu, P.W.-4 Arjun Singh etc. It is also made out by the Trial Court that exhibits Ex.-26 and Ex.-27 submitted by the defendants-appellants confirmed that the defendants-appellants have obtained lands from their father. Thus the fact of assigning of jagir lands to the appellants and effecting consequential division of jagir lands during the lifetime of the ex-jagirdar prior to resumption of jagir on 1.8.1954 stands proved. The ex-jagir had right under Section 195 of the then Marwar Land Revenue Act, 1949 to assign a part of his jagir lands to lineal male descendents of his own who would not succeed to the jagir. Section 195 of the Marwar Land Revneue Act, 1949 runs as follows:- "195. The holder of a scheduled jagir may assign a part of the jagir to a lineal male descendant of his own or of the previous holder who does not succeed to the jagir; Provided that the part so assigned shall not be more than what is reasonable, as a provision for his maintenance." 10. The learned counsel for the appellants has objected to implementation of these provisions now. The learned counsel for the appellants has objected to implementation of these provisions now. But this plea of the learned counsel for the appellants is not tenable in view of the fact that the provisions of Section 195 of the then Marwar Land Revenue Act, 1949 is not being implemented now; the fact is that a jagirdar had a right to assign a part of his jagir lands to lineal male descendents who did not succeed to the jagir; and this right was exercised by the ex-jagirdar during his lifetime before resumption of the jagir.Mhe fact that the respondent-plaintiff was not given any share in the jagir lands during this jagir period stands to reason looking at the provisions of Section 182 of the then Marwar Land Revenue Act, 1949 which states that succession shall be governed in case of scheduled jagir by the rule of primogeniture. Apparently keeping in view the provisions of Section 182 of the Marwar Land Revenue Act, 1949, the then jagirdar had exercised right under Section 195 of the then Marwar Land Revenue Act, 1949 for amicable settlement of the jagir lands among all his sons. And this all was done before resumption of jagir and not after such resumption. Both the lower Courts have concurrently held in their findings that the ex-jagirdar had assigned part of his jagir lands to lineal male descendents who were not entitled to succeed to the jagir and this fact has been proved by oral and documentary evidence also, as has been elaborately described and dealt with by the Trial Court and the First Appellate Court. Thus the concurrent findings of this fact cannot be interfered with in the second appeal. The Trial Court correctly decided issue Nos. 1, 2 and 7 together and First Appellate Court has rightly concurred in these findings of Trial Court. Even if for the sake of argument we forget about the rule of primogeniture in respect of the jagir lands, it is evidently clear from the oral and documentary evidence that the ex-jagirdar Daulat Singh during his lifetime have separated and divided parts of his jagir lands among the four sons only and the respondent-plaintiff was left out simply because he was to succeed to the jagirdar after his death. This is further borne out by the fact that the Jagir Commissioner has issued a succession certificate (Ex.-20) in favour of the respondent-plaintiff; this succession certificate remains unchallenged to-date. Since a Jagir Succession Certificate is already issued by Jagir Commissioner and this has never been challenged or set aside by any competent Court or authority so far, the finding on this issue is proceeding about issuance of Jagir Succession Certificate would operate as an estopple in subsequent proceedings relating to the same facts, as is held in AIR 2009 (NOC) 2510 (Kar.). 11. The issue No. 3 is whether the properties enumerated in para 2 of the plaint purportedly given to defendants-appellants as shares in the joint Hindu property was never received by the defendants-appellants. This issue has also been elaborately discussed by the Trial Court in light of the oral and documentary evidence adduced; it has been concluded by the Trial Court that the defendants-appellants have failed to prove this issue vis-a-vis available oral and documentary evidence pointing to the contrary. We have carefully gone through the judgment of the Trial Court in this regard and we do not find any infirmity in the finding of the Trial Court about this issue. The Revenue Appellate Authority, making his own assessment, has also concurred in this finding correctly. 12. The issues No. 4 and 5 are pertaining to forcible possession made on the disputed lands in Svt. 2020 and request for the consequential mesne profit in lieu thereof. These issues are pertaining to the facts, which have been decided in favour of the plaintiff by both the lower Courts through their concurrent findings based on the evidence adduced before them. We do not find any infirmity or irregularity in the same findings on these issues by the Trial Court as well as the First Appellate Court. 13. The main contention of the learned counsel for the appellants is that the rule of primogeniture is not applicable after resumption of jagir. This is true; but the facts and circumstances of this case is altogether different, as the ex-jagirdar Daulat Singh had already given a part of his jagir lands to the four younger sons to the exclusion of the eldest son (respondent-plaintiff); thus he had already exercised his right under Sections 182 and 195 of the then Marwar Land Revenue Act, 1949 before resumption of jagir. 14. 14. Both the lower Courts have given concurrent findings in their judgments. The contention about assignment and separation of jagir lands among all the younger sons is factual on which both the lower Courts have consistently concurred. Similarly, the issue about forcible possession of the disputed land is again a matter of facts in which both the lower Courts have given concurrent findings of facts. The concurrent findings of judgments of both the lower Courts are based on evidence and record; as such we do not find any reason for interference in the concurrent findings and judgments based on evidence and record, as are held in 1997 DNJ (SC) 464, 2000 DNJ (Raj.) 751, 2002 DNJ (Raj.) 879 and 2009 RRT 1390. 15. The contention of the appellants is that at the time of alleged assignment and division of the jagir lands the appellants were minor and such alleged assignment or division is not maintainable. In this regard our attention is drawn to pronouncement of Hon'ble Supreme Court as reported in AIR 2004 (SC) 1257 in which it is held that ownership of property by minor can be presumed by silent acceptance unless it is repudiated by such minor on attaining majority. In light of this ruling of Hon'ble Supreme Court the plea of the appellants is maintainable. 16. In view of the foregoing discussion there is no force in the appeal No. 9253/09. 17. As far as the appeal No. 9254/09 is concerned the appellants have already filed a suit in the Court of Sub-Divisional Officer, Nagaur pertaining to the disputed lands. An application filed by the appellants before Sub-Divisional Officer for becoming party to the suit No. 68/99 was rejected by the Trial Court and the revision against this order of rejection was also dismissed by the Board of Revenue, as are admitted by both the parties. Thereafter an application filed under Section 96 of the C.P.C. before. Revenue Appellate Authority was also rejected by the Revenue Appellate Authority. Since the applications under Order 1 Rule 10 of the C.P.C. as well as under Section 96 C.P.C. stand finally rejected, no appeal would lie against the impugned judgment unless the order of rejection passed under Order 1 Rule 10 and Sec. 96 of the C.P.C. is set aside; as are held in 1993 RRD 568 and 1989 RRD 292. Since the applications under Order 1 Rule 10 of the C.P.C. as well as under Section 96 C.P.C. stand finally rejected, no appeal would lie against the impugned judgment unless the order of rejection passed under Order 1 Rule 10 and Sec. 96 of the C.P.C. is set aside; as are held in 1993 RRD 568 and 1989 RRD 292. It is also significant to observe here that a regular suit filed by the appellants is still pending in the Trial Court pertaining to the same disputed lands between the same parties. When a regular suit is pending before the Trial Court, one cannot file an appeal against the judgment and decree issued is another case, as is held in 1989 RRD 748. Apparently, this second appeal is incompetent. Here we refrain from making any observation or comment about any right or interest of the appellants of appeal No. 9254/2009 in the disputed lands, lest it should prejudice the judgment of Trial Court who is expected to decide the case pending before him on. merits in keeping with the provisions of law. As such the second appeal No. 9254/2009 is not maintainable being incompetent. 18. In light of the foregoing discussion both the appeals fail. 19. Resultantly, both the appeals No. 9253/09 and 9254/09 are dismissed in limine.